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MIL Collections Court Claim - Draft Defence
cpr1986
Posts: 23 Forumite
Hello, thank you to those who have helped me with this so far. I'd appreciate any advice on my draft defence as follows. (I've copied most of it from another user's post with just a couple of minor alterations.)
1.
The claim is defended for the following reasons:
a. The Claimant has no standing to bring a case
b. The Claimant has no capacity to form a contract with the Defendant
c. The signage does not offer a contract with the Defendant
d. The Claimant provided no service to the Defendant
e. The Claimant’s practices do not comply with current PD
f. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
2.
The Claimant does not own the car park and nor does he have any other interest in it and therefore lacks capacity to offer parking. Nor did the Claimant provide any service to the Defendant. The Defendant requests the Claimant to produce evidence of standing by way of a deed, lease or contract.
3.
If the Court determines that the Claimant does have the standing to bring a case, the Defendant disputes that the signs displayed at the carpark make a genuine contractual offer. In any event as a unilateral offer these signs cannot be seen to constitute a representation of a meeting of minds. There was no genuine offer and the Claimant provided no consideration. The elements of a contract are absent and the Claimant has no case.
4.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
5.
In purchasing the alleged debt, the Claimant has done nothing but “wantonly and officiously” intermeddled in the dispute of another, having had no prior interest in the debt. This “savours of maintenance” and the court is asked to refer to the reaffirmation given to the matter of maintenance by Moore-Bick LJ in the case of Simpson –v- Norfolk & Norwich University Hospital NHS Trust (2011) AC 1149 and as found by the Deputy District Judge in the case of MIL Collections Ltd -v- Bowker heard at Oldham County Court on 15 January 2016 (Case number B1QZ7N32).
6.
The Claimant has not explained what authority it has to bring the claim. The reference below is a relatively important point because if JAS lack standing to issue parking charges or to issue proceedings in their own name, then the Claimant also lack standing. The Claimant can not create standing out of assigned debt if their assignor did not have any in the first place.
The Defendant therefore will not accept the Claimant’s assertion and requests “strict proof” by producing evidence of standing by way of a deed, lease or contract.
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 standing to bring court proceedings in its own name.
Reference to the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.
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.
The Claimant does not have the right to bring the case in their own name.1SE09849, VCS v Ibbotson, S!!!!horpe County Court, 16/5/2012. District Judge McIlwaine (page 10, line 16, to page 14, line 31) strikes out the case as the claimant does not have the right to bring the case in their own name, and also considers whether the offices of the company are in contempt of court for bringing the case
7.
The driver recalls that on the day of the alleged offence the pay and display ticket machine was not working and as such he was unable to purchase a ticket. As such, if the Court should determine that the Claimant has a valid claim then the Defendant requests that the Court considers that there are mitigating circumstances in the Defendant’s favour.
8.
The charge must be shown not to be “excessive or unconscionable.” A comparison with the penalty charges imposed by Manchester City Council shows that their charge for a comparable situation is £50 reduced to £25 if paid within 14 days. One might therefore argue that the charge of £100 is “excessive and unconscionable”.
9.
The Defendant has the reasonable belief that the Claimant has attempted to claim an expense that was not incurred. Specifically, the £50 administrative and collection fee has been inflated. The agent advertises its charges as “no collection, no fee”. The Claimant did not therefore incur the additional charge.
10.
The Defendant invites the Court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the Court to order the Claimant to provide Further and Better Particulars of Claim, the same to include evidence that the Claimant has the legal standing to bring the Claim.
I believe the facts stated in this defence are true.
1.
The claim is defended for the following reasons:
a. The Claimant has no standing to bring a case
b. The Claimant has no capacity to form a contract with the Defendant
c. The signage does not offer a contract with the Defendant
d. The Claimant provided no service to the Defendant
e. The Claimant’s practices do not comply with current PD
f. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
2.
The Claimant does not own the car park and nor does he have any other interest in it and therefore lacks capacity to offer parking. Nor did the Claimant provide any service to the Defendant. The Defendant requests the Claimant to produce evidence of standing by way of a deed, lease or contract.
3.
If the Court determines that the Claimant does have the standing to bring a case, the Defendant disputes that the signs displayed at the carpark make a genuine contractual offer. In any event as a unilateral offer these signs cannot be seen to constitute a representation of a meeting of minds. There was no genuine offer and the Claimant provided no consideration. The elements of a contract are absent and the Claimant has no case.
4.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
5.
In purchasing the alleged debt, the Claimant has done nothing but “wantonly and officiously” intermeddled in the dispute of another, having had no prior interest in the debt. This “savours of maintenance” and the court is asked to refer to the reaffirmation given to the matter of maintenance by Moore-Bick LJ in the case of Simpson –v- Norfolk & Norwich University Hospital NHS Trust (2011) AC 1149 and as found by the Deputy District Judge in the case of MIL Collections Ltd -v- Bowker heard at Oldham County Court on 15 January 2016 (Case number B1QZ7N32).
6.
The Claimant has not explained what authority it has to bring the claim. The reference below is a relatively important point because if JAS lack standing to issue parking charges or to issue proceedings in their own name, then the Claimant also lack standing. The Claimant can not create standing out of assigned debt if their assignor did not have any in the first place.
The Defendant therefore will not accept the Claimant’s assertion and requests “strict proof” by producing evidence of standing by way of a deed, lease or contract.
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 standing to bring court proceedings in its own name.
Reference to the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.
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.
The Claimant does not have the right to bring the case in their own name.1SE09849, VCS v Ibbotson, S!!!!horpe County Court, 16/5/2012. District Judge McIlwaine (page 10, line 16, to page 14, line 31) strikes out the case as the claimant does not have the right to bring the case in their own name, and also considers whether the offices of the company are in contempt of court for bringing the case
7.
The driver recalls that on the day of the alleged offence the pay and display ticket machine was not working and as such he was unable to purchase a ticket. As such, if the Court should determine that the Claimant has a valid claim then the Defendant requests that the Court considers that there are mitigating circumstances in the Defendant’s favour.
8.
The charge must be shown not to be “excessive or unconscionable.” A comparison with the penalty charges imposed by Manchester City Council shows that their charge for a comparable situation is £50 reduced to £25 if paid within 14 days. One might therefore argue that the charge of £100 is “excessive and unconscionable”.
9.
The Defendant has the reasonable belief that the Claimant has attempted to claim an expense that was not incurred. Specifically, the £50 administrative and collection fee has been inflated. The agent advertises its charges as “no collection, no fee”. The Claimant did not therefore incur the additional charge.
10.
The Defendant invites the Court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the Court to order the Claimant to provide Further and Better Particulars of Claim, the same to include evidence that the Claimant has the legal standing to bring the Claim.
I believe the facts stated in this defence are true.
0
Comments
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You need to know who you are up against
READ THIS BY THE PARKING PRANKSTER ABOUT MIL
Is Alan Davies of MIL Collections faking evidence in parking cases?
http://parking-prankster.blogspot.co.uk/
A bit further down ..
MIL Collections Bail Out
Further reading about MIL
MIL Collections discontinue cases...by the bucketload
http://parking-prankster.blogspot.co.uk/search?q=MIL
Others on here may well give you more information on Alan davies0 -
It would be best to ask a Board Guide like Crabman, to merge your threads so we can see some background:
http://forums.moneysavingexpert.com/showthread.php?t=5512893
Going by your draft defence above, was the original parking firm JAS?
This is a good thread to read, maybe you've seen this one?
http://forums.moneysavingexpert.com/showthread.php?t=5417680&page=3
It mentions several other cases where MIL have discontinued claims.
HTHPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
MIL must legally set out their case and having read just a few of their claims I will absolutely guarantee that the particulars of claim (on the front page of the Claim Form) do not identify what legal cause their action is based in whether that is breach of contract, trespass or some other tort or wrong. This - legally - prevents you from responding meaningfully and fails from the very outset to assist in narrowing the issues - something that the Civil Procedure Rules require parties to do.
So, your first argument must be that MIL have failed to disclose the head or heads of action in which their claim is based and that therefore their claim fails to disclose a cause of action with any prospect of success. You can then invite the court the strike the matter out.
Make much of the fact that MIL are a well resourced and funded company with a dedicated legal staff. Suggest that the fundamental failure to set out the legal basis of their claim is suggestive of the use of boilerplate wording. Furthermore, MIL are well known to purchase large numbers of such debts at (what are known as) distress rates (in other words bought for pence on the pound) and the use of boilerplate wording suggests a lack of concern for the individual defendant and - you suggest - offends the dignity of the court.
Only a landowner issue proceedings in trespass. Does MIL have sufficient standing to issue such proceedings? If indeed the action is founded in trespass then you should put MIL to strict proof to show that the sum they claim represents the damage caused by the driver at the time. Normally in such cases only nominal damages are awarded - £1 would be the standard.
You are arguing in several paragraphs and in very slightly different forms of words that MIL lack standing. I suggest you should hone this single point to a more ordered argument - "capacity" and "standing" are the same thing in this context. Using VCS -v- Ibbotson is not a case to be quoting with regard to standing IMHO.
Just because an operator does not have any interest in the land (car park) does not mean that he cannot either offer a contract or enforce the terms of any such contract provided he has authority to do so and can demonstrate a clear chain of authority from the landowner. (Hint).
You should therefore firstly deny that MIL (via their assignors) have any interest or authority and then put them to "strict proof" (which means that you challenge them to produce evidence) to show that they do. Don't faff around "requesting" - be assertive. MIL have to prove their case and you should be obliging them to do so. In other words deny everything and put them to "strict proof" in every regard. This won't guarantee you win on every point but that isn't the aim - ultimately you only have to prove one.
JAS's(?) signage is routinely forbidding but this does vary from location to location. A forbidding sign renders those who fail to abide by the "terms" a trespasser. Forbidding signs cannot also constitute a contractual offer. JAS also had a habit of hiding away their PCN charge in the small print. Aside from failing to sufficiently draw a consumer's attention to a term (Consumer Rights Act 2015) this habit also fails the old "Red Hand Rule" test established back in the 50's by the former Master of the Rolls, Lord Denning in J. Spurling Ltd -v- Bradshaw [1956].
Aside from the content of the signage how many signs were actually in position at the time (Google Street View - now it makes the history shots available is very definitely your friend here)? Were they visible? Were they readable. Did the operator comply with the BPA or IPC Codes of Practice as far as signs at the entrance were concerned, for example?
If a charge is levied then it is incumbent upon the operator to ensure that such machines are fit for purpose and were working. Provided you make efforts pay (Were there any other machines? Was there a telephone number of the operator given on the signs? Were you able to call it or not?) then it is unreasonable to be held to that term - especially if you have made an offer to pay that sum.
What about the so called assignment? You have had a single letter unsigned and printed on plain paper how can you possibly conclude that this represents a genuine assignment. Put them to proof again - get them to produce a properly executed deed of assignment - signed, dated and including details of the relevant debt. (They standard document is a photocopy of a photocopy which they often describe as "reconstituted" - refuse to accept it. Reconstituted suggest that a document has been rebuilt (if you like) from disparate sources - but a single page of A4? This is a nonsense.
Did this happen in Manchester? If not then you will need to amend the location.
What about JAS's (if it was them) paperwork? I haven't yet seen a single item of their papertrail that complies with POFA.
Finally, unless you have already identified yourself as the driver then I suggest you rework the paragraph about the what happened on the day.My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
When was the ticket issued? Was it sometime in 2014?0
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@HO87
I've read your extremely comprehensive response to the OP. Many of the paragraphs of advice have general across the board applicability for any MIL case, and if you don't mind, I've bookmarked it for referring other MIL cases to, with a caveat about some of the advice being pertinent only to this OP.
A great resource for referencing. Thank you.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks for the advice, the original company was parking awareness and the car park is in Preston.
This was my original post with some background info:-
Hi
I'm dealing with a parking fine on behalf of my brother in law. It relates to a parking ticket back in December 2015, unfortunately he ignored all the letters and are now at a stage where the car park company has 'sold' the debt on to an outfit called MIL Collections Ltd, and they have proceeded with a Small Claim for £150 (plus £25 Court fee).
The only documents I have in my possession are a letter from MIL advising they are now dealing with the debt, and the Claim form.
I have completed the Acknowledgement online, and now need to prepare the defence which is due to be filed by the 1st September. I'd appreciate some feedback on the defence before I upload it! I'm not sure where to start, but I'll have a look through some of the other defences posted on here to get an idea first.
As far as circumstances go, the driver tells me that he did try to purchase a ticket but the machine was broken. He subsequently received an invoice letter in the post, no doubt followed by other correspondence demanding payment all of which he ignored!
I managed to successfully appeal two tickets via POPLA a couple of years ago, with help from this excellent forum. I understand that it will be more difficult with this one now we are at the Small Claim stage, but hopefully it will be worth a try!0 -
Read this
http://parking-prankster.blogspot.co.uk/2016/08/is-alan-davies-of-mil-collections.html
also do a search of PP's blogs, he has singled out MIL for special mention.You never know how far you can go until you go too far.0 -
A debt collector needs a CCA credit agreement to collect a debt and a deed of assignment of said debt.I do Contracts, all day every day.0
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Only if the debt is subject of the Consumer Credit Act in the first place. Unpaid PPC's PCN's are unsurprisingly not subject of the CCA but governed simply by contract law.Marktheshark wrote: »A debt collector needs a CCA credit agreement to collect a debt and a deed of assignment of said debt.
MIL routinely produce what they allege is a deed of assignment but have never produced an "original" document, or one that is dated or records the debt they are pursuing.My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
Many thanks for the further help. I've amended the defence as follows:-
(Further comments welcome!)
1. The Claimant has failed to specify a cause of action and therefore the Defendant requests that the Claimant explain on what legal basis they are entitled to bring the claim.
2. The particulars of claim are too vague and the Defendant suggests that the Claimant has adopted a system to simply enable them to issue large numbers of claims which do not contain a sufficient amount of detail to enable the Defendant to respond properly to the claim. The Defendant suggests that this shows a lack of concern and respect for not only the Defendant but also the Court.
3. If the claim is made under the law of trespass then the Defendant requires that the Claimant produces evidence that they are legally entitled to make such a claim. The Defendant suggests that the Claimant, or their assignors, do not have the required interest or authority on behalf of the land owner to make such a claim and therefore the Claimant is put to strict proof on this point.
4. The Claimant states that the debt has been assigned, and therefore the Defendant requires proof that the assignment is genuine in the form of a original signed, witnessed and dated deed of assignment.
5. If the Court is satisfied that the Claimant does have the authority to make such a claim, then the Defendant requires proof that the sum claimed represents the damage suffered by the Claimant as a result of the driver’s actions, and evidence of on what basis the sum has been calculated. The Defendant suggests that the sum is excessive.
6. The Defendant believes that the Claimant has attempted to claim an expense that was not incurred. Specifically, the £50 administrative and collection fee has been inflated. The agent advertises its charges as ‘no collection, no fee’.
7. If the Court is satisfied that the Claimant may proceed with the claim then the Defendant disputes that the signs displayed in the carpark are sufficient to bind the Defendant to a contract. The signs do not constitute a contractual offer and therefore there has been no offer and acceptance, the basis of a contract. The signs are inadequate due to the size of the car park.
8. If the Court is satisfied that a contract has been formed then the Defendant maintains that such a contract is in breach of the Unfair Terms in Consumer Contract Regulations 1999 as the Claimant has not acted in good faith.
9. The Defendant believes that on the date in question the ticket machine was out of order and therefore any person using the car park would be unable to purchase a ticket, despite efforts being made to do so. The Defendant requires proof that the ticket machine was working effectively on the day in question in the form of maintenance records and details of any problems logged on that particular day. The Defendant also requests that the Claimant discloses the number of invoices issued to drivers on that particular day.
10. I believe that the facts stated in this defence are true.0
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