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TomLowe
Hi

To begin with I will intentionally keep the information light on this post as I do not wish to flood it with unnecessary details (and also through reading through previous posts potentially give MIL any wriggle room).

Brief history is as such proposed parking charge issued Sept 2015, appealed via online appeal system (probably my 1st mistake but with good intention) no reply thought no more of it eventually received additional letters re sent the appeal twice.
Further period of time past received letter stating no appeal received so liable for charge.
Contacted company with sent appeal dates, sent another appeal, receive letter stating that new information submitted after original appeal can not be considered and as such charge still stands.

At this point I decided to sit it out with a view to taking it to court if necessary as I believed I had a strong case against the charge.

Received MIL LBA and Transfer of debt (same as all other posts on here, cheap copy paper no signatures same bar code etc. etc.

After browsing the internet for advice happened upon an excellent letter from Gan denying any debt, requesting there evidence etc.

no respose until court papers received.

After further browsing it would appear that there may be a strong case for requesting the case to be struck out before making court?

I have reached the limit of my knowledge and was hoping that I may be able to receive some help in how best to compose this request whilst preparing my defence should it be needed.

I am determined to fight this and to hopefully strike another nail into MIL collections, looking at there past dealings and failings they must still be making a profit on this venture but surely it can only be a matter of time before they succumb.

Many Thanks in advance.

All additional information will be furnished as needed.
nosferatu1001
What parking company?

Have you ACKNOWLEDGED THE CLAIM?

If not, do so NOW

Review the other MIL threads. Put together a part 18 - Look for Hotel Oscar 87s one, it is short, sweet and will UTTERLY demolish them

You are aware of the issue with the assignment being a faslse instrument, and the champery and maintenance (ie butting in on someone elses affairs)
TomLowe
The parking company was parking awareness services. It was a car park in Blackpool.
The claim has been acknowledged and thanks for the point in the direction of Hotel Oscar 87.

As for the false instrument that was another reason for the lack of background information as I hope I am right in thinking that, that is now largely academic and will be fought on the basis of MIL having falsely obtained my information and as such the debt has never been proven as existed.

It seems the same as me writing to a person at random accusing them of a random act based on loose facts (in this instance they own a car) and demanding a sum of money for an event that never took place! At least that is my layman's understanding of it..
nosferatu1001
They didnt falsely obtain information. WHat they have done is obtain something they cant in theory use. Its not that no debt is proven, its that 1) the assignment is not legal -THEY wrote the first letter "assigning" the debt, which if you think about it is a nonsese! and 2) they have only bought a bare right to litigate. However the law doesnt allow that - champerty and maintenance. Theyre trying to buy their way into something they had no interest in before, and only to litigate. Hence the questions in the Part 18. Post them here, NOW, and send them off first clas, proof of posting.

When are your 28 days from date of service up?

PAS never manage to make Keeper liable, under POFA, so you must review any documents you have to confirm this. Its another defence point. You NEVER go in with only one arrow - absolutely everythign is attacked.
TomLowe
My 28 days of service is from today. I will compose the part 18 response and post it up here for perusal tomorrow. (having pretty much spent the last two days at work, 16 hours at work today and counting, having to type this up on my phone at the moment)
The letter I found from Gan seems to be similar to the part 18 but I can see not laid out for court reference. Unsurprisingly no response from Mil was forthcoming and after approx 5 weeks I received the court papers.

I'm sure I'll say it again but thanks for the help so far.

Another quick question though?

I assume i will also need to start composing my defence will this be solely based around the assignment of debt, champerty and maintenance or also including my original appeal to.P.A.S contesting the issue of the parking charge?
Gan
You use everything so your defence is a series of hurdles :

The debt wasn't lawfully assigned
Even if it was assigned, it was a bare right to litigate
Even if it is not champerty & maintenance they've failed to meet the requirements to pursue the keeper for payment
Even if they could pursue the keeper, the driver did nothing wrong
Even if the driver did something wrong, he never owed a payment to the parking company
nosferatu1001
The HOtel Oscar 87 part 18, about 4 items, is the one to use

Its asking for them to confirm they have the apprropiate documents, can provide them, and WILL provide them to the court.

As Gan states above. You NEVER use just one item. You use as many applicable lines as possible.
TomLowe
I have two signed copies of the letter below ready to go (with all my relevant information in). I just wanted to check I hadn't misread the obvious and this is the part 18 referred to before I head to the post office.

I have laid it out as per the original with the centred headers, for some reason it would not transfer the lay out onto this post.

Thank you for the previous prompt responses its a huge help to have the insight and advice from yourselves on this matter.

In the County Court Business Centre, Northampton
Case No. XXXXXX
In the Matter of:
MIL Collections Limited Claimant
-v-
XXXXXXXX Defendent
_________________________________
Part 18 Request for Further Information
_________________________________
In relation to the above matter please provide answers to the following:
1. Confirm that you have in your possession the original deed of assignment duly executed and containing details of the alleged debt.
2. Confirm that it is available for inspection and where this might conveniently be conduct-ed.
3. Confirm that you are able to provide certified copies of it and that the original will be pro-duced at court.
4. Confirm the full name and address for service of the director(s) or company officer(s) of the purported assignor responsible for assigning the debt to yourselves.
5. Confirm that you have all the documentation produced by the assignor in support of the alleged existence of a debt and their compliance with the relevant legislation and that you are able to supply certified copies of it.
This is not a request for copies of documentation.
TAKE NOTICE THAT YOU ARE REQUIRED TO PROVIDE THE INFORMATION REQUESTED WITHIN 21 DAYS OF SERVICE Further I require that the above information be provided in the form a state-ment of truth duly signed by an authorised signatory.
Signed _____________________
Dated __________________ 2016
nosferatu1001
Looks good to me

Expect a lack of response or sometimes a denial that they have to give one. Good to have asked, as court rules require parties to attempt to settle maters before court, and the exchange of information is therefore encouraged
Hotel Oscar 87
QUOTE (nosferatu1001 @ Fri, 15 Apr 2016 - 07:31) *
Looks good to me

Expect a lack of response or sometimes a denial that they have to give one. Good to have asked, as court rules require parties to attempt to settle maters before court, and the exchange of information is therefore encouraged

Especially so when MIL produce what they claim to be "reconstituted" documents!
nosferatu1001
Is "reconstituted" the same as "fabricated"? smile.gif
Hotel Oscar 87
You might think so but I couldn't possibly comment. closedeyes.gif
TomLowe
Right then! After a busy birthday weekend I am back on to sorting this out. I assume I am right in saying I need to start formulating my defence? I will continue to research the forums and will try not to repeat any already asked questions. As mentioned at the start of the post I read that there may be grounds to ask for this to be struck out before reaching court? If this is the case how do I go down this route? (whilst still formulating my defence of course)
Bigmisters
you have to pay 155 gbp fee to the court
Spudandros
QUOTE (Bigmisters @ Mon, 18 Apr 2016 - 19:35) *
you have to pay 155 gbp fee to the court


You're thinking of a set aside, which this isn't.
nosferatu1001
QUOTE (Bigmisters @ Mon, 18 Apr 2016 - 18:35) *
you have to pay 155 gbp fee to the court

a) thats a set aside and
b) the fee is now £255

to OP - if you already have a real court, not the bulk processing centre, then you can always write to the court. They may or may not look at it beforehand.

You should refer to the other cases and state your case has, t the best of your knowledge, identical circumstancs and MIL are bringing the claim under the exact same provisions, ie champerty and maintenance
TomLowe
After some trawling through posts and reading up on parking pranksters, money saving expert etc I have started to form what will hopefully be a useable defence. I must admit can see how people give in to this as I am finding the whole process quite confusing.
Please have a look at what I have formulated so far and advise if I am heading anywhere in the right direction with this. It seems incredibly light at the moment but I am finding it difficult to draw comparison from other defences and understand what points are relevant to my case.

Even if a debt had existed, the Claimant cannot possibly have received a legal assignment from the operator that was contracted to manage parking at the location

The Defendant received a Letter Before Action dated 04/02/2016 from the Claimant stating that it had been sold a debt by Parking awareness services limited. Contained within the same envelope The Defendant received a letter from a company claiming to be Parking Awareness Services limited that purported to be a Letter of Assignment.


Both letters were unsigned and contained identical barcodes



This letter, however, contained a number of factual and typographical errors that led the Defendant to the reasonable belief that the letter was bogus :


1/ The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant no locus in this matter.

2/ Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privy to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016

3/ The letter lacks any letterhead and does not provide the company's registered address. The latter is an offence under the Companies Act
The Defendant therefore cannot connect the letter to any legal entity that might have an interest in the original parking notice

I have seen the phrase going in with as many arrows as possible mentioned multiple time but it would appear some of the reckless mistakes made by MIL in earlier cases have now been reduced.

Also should I put mention in there of the request for more information letter (formed from Gans template) sent at the time of the issue of LBA and the part 18 sent after the issue of court action?
Gan
Deeds of assignment arguments won't be familiar to the judges in Small Claims and they may regard them as technical and nit-picking

Your defence must also deny the very existence of a debt that could be assigned

The Civil Procedure Rules that govern the courts say that, if you don't dispute a point, you are deemed to accept it
Failing to state that you never owed a payment to PCS would mean that, if the court doesn't buy your assignment argument, you lose

nosferatu1001
As above.

Have a look around for some generic defence, such as searching "Gan generic defence", to get an idea of the LAYOUT of a defence that ca nwork

Best is to go through the particulars of claim, line by line, and expressly agree or disagree with every single element.
southpaw82
QUOTE (TomLowe @ Mon, 25 Apr 2016 - 13:20) *
1/ The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant no locus in this matter.

Even if there has been no legal assignment under s. 136 of the Law of Property Act 1925 there may still have been an equitable assignment. If there has been an equitable assignment standing to sue rests with the assignee, in this case MIL. If one were to be pedantic, one could say that there is no requirement for a deed of assignment, as the assignment need not be made by deed, it can be made under hand.

There's no issue with putting the claimant to proof that an assignment has been made, whether legal or equitable, but it's not quite as clear cut as some appear to be suggesting.
TomLowe
Claim Number : *******


Mil CollectionsLimited v ******
Statement of Defence

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
I. The Claimant has not acquired the alleged debt as a valid Legal Assignment from the Operator and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator to be assigned
III. The Operator had no capacity to offer a contract with the motorist
IV. The signage did not offer a contract with the motorist
V. No consideration passed from either the Operator or the motorist
VI. The Operator did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IX. Even if a debt had existed, it would be due to the operator , not the Claimant

2. The Operator has failed to inform the Defendant of the assignment of the alleged debt to the Claimant. The Operator did not therefore assign THE debt to the Claimant as stated in the Particulars of Claim. Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.

3. The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.
ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is down the claimant prove its authority.
4. The Particulars of Claim state that the alleged debt was assigned to the Claimant with the knowledge of Parking Awareness Services. The Claimant is put to proof that the Operator’s contract provided for parking charges to be so assigned.


7. The Claimant is also put to proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.




13. The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

14. Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

15. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

16. The court is invited to consider whether a document titled Parking Contravention Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s claim for Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £100.

17. The Defendant disputes the claimant incurred £50 costs writing letters. The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely over-stayed in its car park. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments
The Operator’s business model in a free car park relies entirely on the income from alleged breaches of terms and conditions, not from customers that adhere to them. The cost of administration staff involved with the processing of parking notices cannot be presented as a loss because their employment is essential to the Claimant’s revenue.
If the Operator suggests that these costs are in fact the charges of an external Debt Collection Agent, the Defendant submits that such a contract would be most unusual and understands that such companies are normally paid only if successful.



20. The Claimant has no legal capacity to bring a claim; the Operator that it states to be the assignor of the debt has never had any legal capacity to offer a contract to the motorist. Even if a debt had ever existed, it would be due to the land-owner, not the Claimant. The Claimant has also failed to disclose the conduct that is complained of and has therefore brought a claim that discloses no cause of action. The Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.
If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

I have tweaked to (hopefully) suit my defence better. I have not re numbered the paragraphs to better indicate those omitted from the original generic defence.

Also please see below the particulars of the claim against me. If you could please be so kind as to advise on any particular points I should omit or add?

1. The claimant purchased the debt on xx/xx/xx. Assignment notice sent xx/xx/xx (1 day later).
2. The defendant was the registered keeper and/or driver of vehicle xxxxxxx at the time.
The charge is as follows:
REF xxxxxxxOFFENCE: Not fully displaying a valid pay and display ticket. Location
General street car park-Blackpool-FY1
Date and time xx/xx/xxxx, xx:xx:xx
VRM/MAKE/MODEL/COLOUR XXXXXXXXXX
3.in accordance with schedule 4, The protection of Freedoms act 2012, notice outlining liability was sent by post to the defendant.
4, The claimant wrote to the defendant on xx/xx/xxxx informing of an intention to issue a summons. No resolution achieved.

THE CLAIMANT CLAIMS:
1, Debt amount £100
2, Administrative and collection fee £50
Total :£150
Bigmisters
If you think that a claim has been issued against you incorrectly you may apply to strike out the claim using the N244 ‘Application Notice’. Alternatively, you may dispute the claim by filing a defence and / or counterclaim. Please note, either a defence / counterclaim or application to strike out the claim should be submitted within 14 days of the date of service or you risk a default Judgment being entered against you.



If you wish to apply please read this letter and the enclosed notes thoroughly before sending the application to the court as incorrectly completed applications will be returned to you. There is £155.00 court fee to process the application, payable by cheque or postal order to HMCTS. If you cannot afford to pay this fee you can check if you are eligible for help with court fees by referring to the EX160 Help with fees form and EX160A Help with fees guidance, which can be downloaded at www.justice.gov.uk/forms or provided on request. Alternatively you can contact our helpdesk on the number above to pay by credit / debit card. If you have already paid the application fee you can file the completed forms via email at ccbcfees@hmcts.gsi.gov.uk. Card payments for application fees can be taken by contacting the Helpdesk on the above number between 9.30 and 3.15, Monday – Friday.





Please note, an application to strike out the claim is not automatically granted. The outcome of your application is at the discretion of a Deputy District Judge or a court appointed Legal Advisor.


The above is a direct cut and paste of reply i recieved from the court clerk
Hotel Oscar 87
You haven't revealed who the PPC was but as it is a MIL claim based originally in Blackpool would I be correct in suggesting that it was Parking Awareness?

Assignment - MIL have previously disclosed that their "assignments" are subject of a deed signed by the two parties. However, in not one case have they ever disclosed the original document - we've only ever seen copies - and the document does not set out the debt or debts allegedly assigned. MIL have been ordered (by courts) on several occasions that they must produce the originals at hearings but because they never show (so far) - opting to have the cases decided "on the papers" - have avoided the issue thusfar.

MIL could indeed argue that this was an equitable assignment but would be required to join the original creditor in the proceedings - which they don't.

The Notices of Assignment are produced by MIL themselves and this is a common practice throughout debt Collection World. The important question is not necessarily the authorship but the intention of the author. There can be little doubt that the intention is that the recipient will be induced to accept it as genuine i.e. that it came from the original creditor. If that isn't the intention then what other purpose can there be for such notices? When this was first taken up against MIL they changed their format slightly by then incorporating a signatory's details on the notices - from the original creditor (the first versions were left blank). Why this was done remains to be seen but my view is that the addition of a signatory further reinforced the view that the letters were intended to be accepted as coming form the original creditor.

The problem is that this falls across the ambit of ss.8 & 9 Forgery & Counterfeiting Act 1981.

In all cases MIL maintain from the outset that POFA was complied with and that the keeper may therefore be pursued. In none of the cases so far examined were any of these claims borne out by an examination of either the various notices or dates these were given or a combination of both. In addition we know that MIL do not lay their hands on the PPC's documentation until a day or two before they file the full details of their claims. I am also aware that there have been several instances where individuals had been named as the driver but cases continued to be pursued against the keeper.

Case law - As the original circumstances will vary from car park to car park and PPC to PPC the applicability or otherwise of Beavis can only be judged as each case emerges. Many of the cases involve Permit-Only car parks and Beavis will not therefore apply.

The maintenance/champerty arguments may be supported by such cases as:

Simpson -v- Norfolk & Norwich University Hospital NHS Trust (2011) EWCA Civ 1149
Trendtex Trading Corporation -v- Credit Suisse (1981) AC 679
Giles -v- Thompson (1993) UKHL 2 (which found that the test in the following case remained applicable):-
British Cash & Parcel Conveyors Ltd -v- Lamson Store Services Co Ltd (1908) 1 KB 1006

Useful summaries of these cases are widely available - Mr G's search engine is your friend!

MIL's Particulars of Claim (PoC) - I would bet a pound to a pinch that MIL's PoC is signed "MIL Collections Ltd". Shame that. The Civil Procedure Rules require that all Particulars of Claim include a statement of truth. This is, essentially, the bit that says "The Claimant believes that the facts stated in this claim form are true and I am duly authorised to sign this statement" but that only becomes a statement of truth once it is signed. In the case of a Limited company such statements of truth must be signed by a director or by am authorised company officer. I am absolutely certain that MIL Collections Ltd does not have a director - or at least not one they have notified Companies House about, less still a company officer called "MIL Collections Ltd".

We have just succeeded in having one of their claims struck out (they failed - as ever - to respond adequately and in time) because of the failure to sign their PoC. What's more this was simply drawn to the court's attention by means of a letter - there was no formal application for the matter to be struck out. Courts now have a wide range of case management powers and that includes the power to strike a matter out "of its own motion" - without an application from wither party. As Bigmisters suggests - correctly - to make an application for the matter to be struck out would cost £155 but simply asking the court if it was OK for MIL to not sign their PoC's cost a first class stamp. You may find that some courts will ignore the letter or will reject it and point you in the direction of making a formal application but it only costs a letter to find out.

Lastly, returning to the matter of the Part 18 application. You are unlikely to receive any response. I have never heard of one but that isn't the intention. The intention is to put a marker down to demonstrate that MIL simply do not engage in the two-way process the CPR expects parties to engage in prior to court. They are entirely mute. By the way, just because the case is duly allocated to a specific court and the Part 18 "window" is then closed doesn't mean that you cannot continue to chase the application (Hint).

HTH
TomLowe
Once again many thanks to HO87 for the in depth reply. Hint and gentle nudge in the questioning of the POC gratefully received you are correct in your thinking over the signatory , however am I right in thinking I will only be allocated a court
upon completion of my online defence? At which point I will pursue both of these avenue's.

My defence is where I am really struggling. I am continuing to research and will pay close attention to the cases mentioned in the previous post. However am I anywhere near the structure and content
of what would be expected of my online submission of my defence, also would this be different to a defence submitted to the court (should it get that far)?

You are right in thinking that the PPC/operator is Parking awareness services, I have mentioned them further down in the defence but can see that I need to correspond this earlier in the defence.

Is all the case law reference irrelevant due to the Beavis outcome?

The points raised about assignment is this something I need to work into the defence or more for reference purposes?

I can see I have not made ready reference to champerty and maintenance where would this sit in the defence?

I have a million more questions but appreciate that time is precious and you advice and knowledge is greatly received so I will continue to exhaust my research options to find the answers myself prior to
asking more!!

I am also looking after an identical case for my sister in law who also fell foul of this car park on the same trip.
nosferatu1001
Your final defence should follow your initial, outline defence, and expand with case law etc

No! Dont chuck out old case law - it is still relevant. You just show that Beavis isnt applicable OR where it reinforces e..g that the penalty rule is engaged until and unless it is disegnaged by commercial interest.

MIL so far seem to take everything as far as court, with a last minute "we wont turn up, can we try it on papers please?" subimssion.

ASsignment - get them to prove the debt was legally assigned. Thats where the part 18 comes in handy
southpaw82
QUOTE (nosferatu1001 @ Thu, 28 Apr 2016 - 08:17) *
ASsignment - get them to prove the debt was legally assigned. Thats where the part 18 comes in handy

A legal or equitable assignment will suffice.
dandyman
QUOTE (southpaw82 @ Thu, 28 Apr 2016 - 09:11) *
QUOTE (nosferatu1001 @ Thu, 28 Apr 2016 - 08:17) *
ASsignment - get them to prove the debt was legally assigned. Thats where the part 18 comes in handy

A legal or equitable assignment will suffice.

Surely not if the assignee (MIL) is bringing an action on its own i.e. without the assignor (PPC) also being a party? Surely they can only do that if it's a legal assignment?
southpaw82
QUOTE (dandyman @ Thu, 28 Apr 2016 - 10:23) *
QUOTE (southpaw82 @ Thu, 28 Apr 2016 - 09:11) *
QUOTE (nosferatu1001 @ Thu, 28 Apr 2016 - 08:17) *
ASsignment - get them to prove the debt was legally assigned. Thats where the part 18 comes in handy

A legal or equitable assignment will suffice.

Surely not if the assignee (MIL) is bringing an action on its own i.e. without the assignor (PPC) also being a party? Surely they can only do that if it's a legal assignment?

In the case of an equitable assignment, standing to sue follows the equity, i.e. the purchaser.
TomLowe
After further googling I have reviewed and modified my defence. If you would be so kind as to pass opinion on whether this is sufficient/suitable in my case I would really appreciate it. I really need to complete my MCOL submission for my defence as time
is running out I am 19 days into my 28 day period.

Claim Number : *******


Mil Collections Limited v ******
Statement of Defence

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
I. The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Parking Awareness Services) and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator (Parking Awareness services) to be assigned
III. The Operator (Parking Awareness Services) had no capacity to offer a contract with the motorist
IV. The signage did not offer a contract with the motorist
V. No consideration passed from either the Operator (Parking Awareness Services) or the motorist
VI. The Operator (Parking Awareness Services) did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IX. Even if a debt had existed, it would be due to the Land owner not the operator, nor the Claimant


1, The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant no locus in this matter.

2, Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016



3,The claimant has issued a Deed of assignment which purports to be a false instrument as of ss.8 & 9 Forgery & Counterfeiting Act 1981.


8 Meaning of “instrument”.E+W+N.I.


(1)Subject to subsection (2) below, in this Part of this Act “instrument” means—


(a)any document, whether of a formal or informal character


9 Meaning of “false” and “making”.E+W+N.I.


(1)An instrument is false for the purposes of this Part of this Act—


(a)if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or


(b)if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or


©if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or


(d)if it purports to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or


(e)if it purports to have been altered in any respect by a person who did not in fact alter it in that respect; or


(f)if it purports to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or


(g)if it purports to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or


(h)if it purports to have been made or altered by an existing person but he did not in fact exist.


(2)A person is to be treated for the purposes of this Part of this Act as making a false instrument if he alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).





4. The Operator has failed to inform the Defendant of the assignment of the alleged debt to the Claimant. The Operator did not therefore assign THE debt to the Claimant as stated in the Particulars of Claim. Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.

5. The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.
ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is down the claimant prove its authority.


6. The Particulars of Claim state that the alleged debt was assigned to the Claimant with the knowledge of Parking Awareness Services. The Claimant is put to proof that the Operator’s contract provided for parking charges to be so assigned.

7. The Claimant is also put to proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.

8. The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.


9. Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant nor the operator.

10. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

11. The court is invited to consider whether a document titled Parking Contravention Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s claim for Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £100.

12. The Defendant disputes the claimant incurred £50 costs writing letters. The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely over-stayed in its car park. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments
The Operator’s business model in a free car park relies entirely on the income from alleged breaches of terms and conditions, not from customers that adhere to them. The cost of administration staff involved with the processing of parking notices cannot be presented as a loss because their employment is essential to the Claimant’s revenue.
If the Operator suggests that these costs are in fact the charges of an external Debt Collection Agent, the Defendant submits that such a contract would be most unusual and understands that such companies are normally paid only if successful.


13. The Claimant has no legal capacity to bring a claim; the Operator that it states to be the assignor of the debt has never had any legal capacity to offer a contract to the motorist. Even if a debt had ever existed, it would be due to the land-owner, not the Claimant. The Claimant has also failed to disclose the conduct that is complained of and has therefore brought a claim that discloses no cause of action. The Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.
If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

Gan
"Charge is a penalty" is no longer an automatic defence
The Supreme Court decided it was OK if there was a public interest in ensuring that motorists didn't overstay

If you're going to use the argument you have to show why the Beavis judgment doesn't apply

Regarding Para #11 - did Parking Awareness Services call it a "Parking Contravention Enforcement Notice" or have you pasted parted of a slightly outdated Civil Enforcement Ltd defence ?
nosferatu1001
Anywhere in there is there anything about hte Driver vs Keeper liability?

They can only write to the (Registered) Keeper

They (MIL) need to show they (the PPC) haeve complied with POFA 2012 to make the Keeper liable. So contend there is no keeper liability, and make them prove otherwise. State that, absence evidence tot eh contrary, there is no presumption in law that the Keeper and the Driver are the same
TomLowe
Gan, reference para 11, guilty of a cut and paste, it is referred to as a Parking Charge Notice in correspondence. Does this mean I can change the wording or is it a case of omitting this part of the defence?
I will do further research with the Beavis case to see if I can apply any off its findings ref "charge is a penalty"

Nosferatu, . I am unsure if it is of any significance but the only Notice received for the charge apart from the windscreen ticket is as Notice to Hirer. The registered keeper address is the lease company but they are not named as the registered keeper.
Is this something I can still use or did that boat sail upon my appeal submission?
nosferatu1001
So you leave out a defence point on a "maybe"?

Your reading o MIL by now should sjhow you that they know almost nothing of the original parking charge.

So, assert they have the wrong defendant, and MAKE THEM PROVE THEIR CASE

Dont do their work for them! and dont do so in this thread either...
TomLowe
All advice duly noted once again. Another edited version to be submitted for further perusal!
TomLowe
Rejigged again. Does this look ok for submission yet? Many thanks I advance.


Claim Number : *******


Mil CollectionsLimited v ******
Statement of Defence

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
I. The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Parking Awareness Services) and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator (Parking Awareness services) to be assigned
III. The Operator (Parking Awareness Services) had no capacity to offer a contract with the motorist
IV. The signage did not offer a contract with the motorist
V. No consideration passed from either the Operator (Parking Awareness Services) or the motorist
VI. The Operator (Parking Awareness Services) did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IX. Even if a debt had existed, it would be due to theLand owner not the operator, nor the Claimant


1, The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant no locus in this matter.

2, Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016



3,The claimant has issued a Deed of assignment which purports to be a false instrument as of ss.8 & 9 Forgery & Counterfeiting Act 1981.


8 Meaning of “instrument”.E+W+N.I.


(1)Subject to subsection (2) below, in this Part of this Act “instrument” means—


(a)any document, whether of a formal or informal character


9 Meaning of “false” and “making”.E+W+N.I.


(1)An instrument is false for the purposes of this Part of this Act—


(a)if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or


(b)if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or


©if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or


(d)if it purports to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or


(e)if it purports to have been altered in any respect by a person who did not in fact alter it in that respect; or


(f)if it purports to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or


(g)if it purports to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or


(h)if it purports to have been made or altered by an existing person but he did not in fact exist.


(2)A person is to be treated for the purposes of this Part of this Act as making a false instrument if he alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).





4. The Operator has failed to inform the Defendant of the assignment of the alleged debt to the Claimant. The Operator did not therefore assign THE debt to the Claimant as stated in the Particulars of Claim. Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.

5. The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.
ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is down the claimant prove its authority.


6. The Particulars of Claim state that the alleged debt was assigned to the Claimant with the knowledge of Parking Awareness Services. The Claimant is put to proof that the Operator’s contract provided for parking charges to be so assigned.

7. The Claimant is also put to proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators.

8. The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.


9. Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant nor the operator.

10. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

11. The defendant neither confirms or denies being the registered driver of the alleged offence. It is therefore for the claimant to provide proof that this is the case and that keeper/driver liability has been proven in accordance with schedule 4 of the protection of freedom act 2012.


12. The Defendant disputes the claimant incurred £50 costs writing letters. The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely over-stayed in its car park. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments
The Operator’s business model in a free car park relies entirely on the income from alleged breaches of terms and conditions, not from customers that adhere to them. The cost of administration staff involved with the processing of parking notices cannot be presented as a loss because their employment is essential to the Claimant’s revenue.
If the Operator suggests that these costs are in fact the charges of an external Debt Collection Agent, the Defendant submits that such a contract would be most unusual and understands that such companies are normally paid only if successful.


13. The Claimant has no legal capacity to bring a claim; the Operator that it states to be the assignor of the debt has never had any legal capacity to offer a contract to the motorist. Even if a debt had ever existed, it would be due to the land-owner, not the Claimant. The Claimant has also failed to disclose the conduct that is complained of and has therefore brought a claim that discloses no cause of action. The Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.
If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim

I believe the facts stated in this defence are true

(Name) (Signature) (Date)


southpaw82
Why are people insisting on including claims of criminal activity in civil defences? Does anyone understand the ramifications defendants may face by doing so?
TomLowe
As I am muddling my way through this would you care to elaborate? Is the reference to criminal activity in the point about the use of a false instrument? I really need to submit this defence but I am concerned I could cause myself more harm than good by submitting something inappropriate!
nosferatu1001
Yes, it is to do with alledging they commited fraud.
TomLowe
So omit para 3 and good to go?
TomLowe
Sorry to bump this but I only have two more days till my 28 is up and am getting anxious now that I need to submit my defence but am wary to so if I have messed it up. Any comments or advice really appreciated.
Jlc
Drop 3 then... There appears to be two 1's? I think there's sufficient detail in the first 1 to cover 3 in essence anyway.
nosferatu1001
As above

Do not miss deadlines waiting for feedback.
TomLowe
Defence submitted! Many thanks for the help up until now. I will keep the post updated with future info, and I am sure I will be returning for more advice as the case continues. Fingers crossed this can be another bullet in MIL!
nosferatu1001
Make sure you read up on the court process from here on out.
TomLowe
My Notice of proposed allocation and questionnaire have arrived. However as mentioned previously I have been guiding my sister in law through this process and she has received a letter of Judgement for claimant (in default). I have looked on MCOL and her defence has been rejected.
Can anyone shed any light into the reason for this and offer any advice moving forward please?



A claim was issued against you on 07/04/2016

Your acknowledgment of service was submitted on 20/04/2016 at 21:27:34

Your acknowledgment of service was received on 21/04/2016 at 08:01:57

Your defence was submitted on 12/05/2016 at 17:08:18

A judgment was issued against you on 12/05/2016 at 19:22:57

Your defence was rejected on 13/05/2016 at 09:01:38

Cut from the MCOL claim status summary. As you can see all deadlines have been adhered to. The defence was submitted on day 21 of the 28.

nigelbb
QUOTE (TomLowe @ Tue, 17 May 2016 - 14:14) *
My Notice of proposed allocation and questionnaire have arrived. However as mentioned previously I have been guiding my sister in law through this process and she has received a letter of Judgement for claimant (in default). I have looked on MCOL and her defence has been rejected.
Can anyone shed any light into the reason for this and offer any advice moving forward please?



A claim was issued against you on 07/04/2016

Your acknowledgment of service was submitted on 20/04/2016 at 21:27:34

Your acknowledgment of service was received on 21/04/2016 at 08:01:57

Your defence was submitted on 12/05/2016 at 17:08:18

A judgment was issued against you on 12/05/2016 at 19:22:57

Your defence was rejected on 13/05/2016 at 09:01:38

Cut from the MCOL claim status summary. As you can see all deadlines have been adhered to. The defence was submitted on day 21 of the 28.
There is something not right with the time stamps or sequence of events. The defence was submitted at 17:08 then just over 2 hours later that same evening at 19:22 a judgement was issued against the defendant then at 09:01 the next morning the defence was rejected.

Hang on. I've just re-read the sequence. You had 28 days from date of service to submit your defence. For some reason it looks like you submitted several days late. Did you misunderstand that it's 14 days from service but only an extra 14 days if you acknowledge service?
Gan
I'm trying to reconcile the dates as well

In Post #29 (3rd May) the OP said he was on day 19 of 28 but I can't see anything that starts at 14th April

In his repeated efforts to write the perfect defence, the OP failed to send anything in time and snatched defeat from out of the jaws of victory
The Best is the Enemy of the Good
Lynnzer
This is a no brainer then.
Pay up and save getting a CCJ.
TomLowe
No I have my claim allocated to track. This is for my sister in law who's defence was submitted a day later. I have been helping her through the process

Nigelbb, I fear you have hit the nail on the head. I misunderstood the dates thinking I had 28 days from aos to submit a defence. It would appear that I have accidentally got mine in on time.

Far from trying to write the perfect defence I was just wishing to submit something that would work and not cause me more trouble than good. I only kept re writing on advice. Frustrating none the less that Mil have benefited from this rookie mistake 👎🏻
nosferatu1001
Pay up then, learn from it and move on...
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