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Coupon-mad · 14 October 2016 at 12:30AM

cueball wrote: »

My vehicle was parked on land at the side of a train station, which I thought was part of the station parking. Having used this parking for over ten years whilst dropping and picking the kids up from school this was a free parking area, which has obviously changed. On the day in question we were rushing to catch a train so just parked up and ran for the train not noticing the place had become a pay and display.

Upon return the notice was on the screen doing a quick internet search the consensus was to ignore the notice.

Llawnroc sent a few letters threatening court proceedings but nothing came of it. Then approx. 12mths later MIL sent a letter saying they had purchased the debt threatening with court again, I again ignored them and have now received the claim form from the courts

Just quoting this here so we can see the LLawnroc ticket circumstances near the MIL defence being drafted.

- Is the claim form signed by a person or “MIL Collections Ltd” ?

- In letters or the Particulars of Claim, have they said they are claiming 'keeper liability' under the POFA 2012? Or are they pursuing you as a known/admitted driver?

- Do any letters call MIL the “…creditor for the moment entitled to collect the debt” (SPECIFICALLY)?

How long do you now have, what date was on the court papers? I hope you have a week or so because this needs work and is citing old Parking Eye cases that I wouldn't suggest should be in there. A MIL defence can be stronger than this and we can help but need to know how long you have now...

cueball · 14 October 2016 at 2:41AM

Hi

the claim form isn't signed by a person it's typed in Alan Davies-Managing Director

it says "The defendant was the registered keeper and/or Driver of the vehicle (Reg) at the time. No mention of POFA 2012

There is only one letter as attached in the link and then the claim form no mention of MIL being called the creditor

court papers issued 15/09/16 so only have until the 18/10/16 to send my defence

thanks

PS do the dates have any bearing in this matter as their (MIL) letter before action is dated 19/07/16, says they are preparing to recover via a small claims action within 14 days of this letter and the claim form is dated 61 days later?

Would it be easier if I took a photo of it and posted it with the other pic's?

cueball · 14 October 2016 at 6:54PM

I have uploaded a pic of the claim form to the link in #31 above thanks

cueball · 15 October 2016 at 1:02PM

cueball wrote: »

Hi beamerguy
here is the link to the pic's hope this works right this time, also the offence is "Not Clearly Displaying a Valid Permit"
hxxp://s1174.photobucket.com/user/cueball5/slideshow/

here is a revised draft of my Statement of Defence, all photos of documents, signs and carpark are in the link above is this good to go or does it need amending thanks in advance only have 3days left to submit

Claim Number: *******

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 (Llawnroc Parking Services) and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator (Llawnroc Parking Services) to be assigned
III. The Operator (Llawnroc Parking 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 (Llawnroc Parking Services) or the motorist
VI. The Operator (Llawnroc Parking 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 Landowner 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 has 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

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 purchased by the Claimant on the 18/07/16, Assignment notice sent 19/07/16. 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 nor 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 “Not Clearly Displayed a Valid Permit”. 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 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. In the Particulars of Claim the Claimants, Statement of Truth has not been signed/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)

Coupon-mad · 16 October 2016 at 12:19AM

Looking better.

Check your numbering! You have two paragraph #1 and no paragraph #3.

Here's a pepipoo case with a winning defence:

http://forums.pepipoo.com/index.php?showtopic=105272&st=0

Here is one showing that even a weak defence can get MIL to discontinue in some cases:

http://forums.pepipoo.com/index.php?showtopic=108883

I would add a point asserting that the signs, in terms of sparse placement and lack of clarity of terms were not bound to have been seen by drivers (as opposed to the signs in ParkingEye Ltd v Beavis). Nor was the alleged 'charge' in sufficiently large lettering to meet the requirements of the CRA 2015. Nor do the signs comply with the POFA 2012 Schedule 4 as regards providing 'adequate notice' of any parking charge nor setting any clear 'relevant obligation' nor 'relevant contract'.

If I were you I would also add the claim numbers/court details mentioned by HO87 in post #29, adding an extra point averring that MIL's only 'interest' in this alleged debt is that they have bought some photographs. State the two claim numbers/details/court/dates.

Oh, and this point #11 need a bit of a tweak - no such thing as a 'registered' driver!:

11. The defendant neither confirms nor denies being the [STRIKE]registered[/STRIKE] driver of the alleged offence. It is therefore for the claimant to provide proof that this is the case and that keeper [STRIKE]/driver[/STRIKE] liability has been [STRIKE]proven[/STRIKE] established by the issue of compliant documents, in accordance with schedule 4 of the Protection of Freedom act 2012.

Finally did the Notice of Assignment arrive in the same envelope as a letter from MIL? With the same barcode on the two letters? I think the issue is mentioned in those two pepipoo threads I linked; if so, it's clear that there was no real assignment and this document was generated by MIL themselves.

cueball · 16 October 2016 at 1:56AM

Hi thanks for taking the time to read through my defence

I will sort the numbering out, I was aware that #3 was missing as I had deleted it but hadn't realised there were two #1's.

I will add the points you mentioned and the case numbers too

The Notice of Assignment and the MIL letter arrived separately though the barcodes look the same I'm not sure if they are

cueball · 17 October 2016 at 6:49PM

Hi Coupon-mad

here is the amended draft with the points you advised added tomorrow is D-Day so it will have to go as is

HO87 do you have the email address of where I need to send that you mentioned have please

Also will I have to sign my defence if sending via email?

thanks

Claim Number: *******

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 (Llawnroc Parking Services) and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator (Llawnroc Parking Services) to be assigned
III. The Operator (Llawnroc Parking 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 (Llawnroc Parking Services) or the motorist
VI. The Operator (Llawnroc Parking Services) did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. Even if a debt had existed, it would be due to the Landowner not the operator, nor the Claimant.

2. 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 has no locus in this matter.

3. 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

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 purchased by the Claimant on the 18/07/16, Assignment notice sent 19/07/16. 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 signage is of sparse placement and lack of clarity of terms were not bound to have been seen by drivers (as opposed to the signs in ParkingEye Ltd v Beavis). Nor was the alleged 'charge' in sufficiently large lettering to meet the requirements of the CRA 2015. Nor do the signs comply with the POFA 2012 Schedule 4 as regards providing 'adequate notice' of any parking charge nor setting any clear 'relevant obligation' nor 'relevant contract'.

12. The defendant neither confirms nor denies being the driver of the alleged offence. It is therefore for the claimant to provide proof that this is the case and that keeper liability has been established by the issue of compliant documents, in accordance with schedule 4 of the Protection of Freedom act 2012.

13. 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 “Not Clearly Displayed a Valid Permit”. 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 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.

14. 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. In the Particulars of Claim the Claimants, Statement of Truth has not been signed/verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.

a. 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Paul Cook

It was in this case particularly in which the judge (DJ Spencer) suggested that the 6 page witness statement supplied by MIL that in effect provided no evidence could actually have been boiled down to a single sentence - "We bought some photographs"

The judge also said "This is the problem with MIL, you buy all these supposed debts and rush them to court and can't even be bothered to provide remotely sufficient evidence as to why, in this instance, Mr Cook owes you hundreds of pounds"

b. 30 Sept 2016 Colchester CC Case No C2QZ582J MIL -v- Mrs McK

Case dismissed for lack of any evidence, lack of signage.

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)

Coupon-mad · 17 October 2016 at 9:28PM

Looks OK although I would explain why you've added the two cases at the end, perhaps by splitting point #14 into two, above those cases, so they tie in:

14. 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.

15. 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. In the Particulars of Claim the Claimant's Statement of Truth has not been signed/verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success as has been the case in many incoherent 'MIL Collections' robo-claims since the Bowker case B1QZ7N32, Oldham CC referred to in my defence above. It is submitted that this is a vexatious litigant, merely buying sets of photographs from parking firms for as little as £1, with the aim of inflating any damages for this claimant's own profit. This claimant is wantonly and officiously intermeddling in cases where they have no prior interest; this is frivolous litigation with no evidence nor any particulars that could give rise to a claim in law. Judges across the country have agreed with this view. Recent cases struck out by the courts include:

(then your bit about the two Sept cases...)

Re emails, HO87 says he advises people to copy to both, just in case:

ccbcaq@hmcts.gsi.gov.uk

and

ccbcdefendants@hmcts.gsi.gov.uk

Keep us informed!

cueball · 17 October 2016 at 10:24PM

Brilliant C-m I'll do that and keep you updated.

Also do I have to print this off, sign it, scan it back in and email, do I have to get it in by a certain time or as long as it's the 18th will I be fine

Coupon-mad · 17 October 2016 at 10:44PM

Personally, I would email a signed and dated by hand version.

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