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Monday, 13 February 2017

MIL Collections send in a barrister. Claim dismissed as per usual

MIL Collections v Mrs D, Carlisle County Court. 13/2/17

Back in 2014, Mrs D's car was being driven by a man, who parked in Lowther Street, Carlisle, and went to purchase a ticket.

While he was doing so, NorthWest Parking Enforcement issued a Notice to Driver (NtD), and this was followed up by a Notice to Keeper, 62 days after the NtD.

As this meant Keeper Liability was not engaged, Mrs D studiously ignored the begging letters from NWPE, Debt Recovery Plus, their alter-ego Zenith Collections and finally, MIL Collections, who decided to take the matter to court.

HO87, a well know MIL expert and forum regular prepared the silver bullets, and, as is so often the case, asked John Wilkie if he could take aim and fire.

The Hearing

In court today, MIL finally fielded an advocate with rights of Audience, Ms Coulson of 18 St John Street Chambers. Mr Wilkie appeared for the Defendant. Ms Coulson was polite, courteous and friendly, and her comments to Mrs D following the case were appreciated.

Mr Wilkie wants to state what a pleasure it was to have an opponent who knew what she was doing and to face a decent challenge in court, and what a pity it was that the MIL evidence was of the usual quality.

After a discussion on signs, markings, times and Beavis, the matter turned on two questions.

1) Did the "deed of assignment" meet the requirements of law

2) Did MIL, as assignee have the right to pursue the Keeper, absent
compliance with the Protection of Freedoms Act 2012 sch 4 (POFA).

In handing down his judgment, the judge ruled in respect of the first matter, the deed of assignment was not dated, has no context, did not deal with the debt in question and as such was invalid.

For completeness, the judge also stated that, without positive evidence of the driver, MIL could not pursue the Keeper unless they were relying on POFA. Elliot v Loake, Barnard v Sully and CPS v AJH Films are of no support to a common law presumption.

Claim dismissed, with £108 costs to the Defendant.

Prankster notes 

As usual, MIL have produced a bundle of evidence which could be generously described as "a hospital pass" but on this occasion, the loss has cost them significantly more - the minimum a barrister is likely to attend a hearing for is £300-400 per hour, although the exact figure is
not known on this occasion. Given the paucity of their paperwork and lack of any right to actually pursue these charges, one has to wonder why they bothered trying to polish this particular turd.

It is good to see MIL finally using an advocate with rights of audience, and the Prankster hopes this move to lawful conduct will be reflected in other elements of MIL's business.

In the meantime, the Prankster is aware of a number of discontinuances issued by MIL, and wonders what Mr Wilkie may have been doing behind the scenes - he's not just a  pretty face. (Actually, having met him, he's not EVEN a pretty face).

The Prankster also wonders what MIL were doing pursuing a case where NorthWest Parking Enforcement purchased keeper details from the DVLA. The Prankster was under the impression that MIL had promised the DVLA they would stop processing cases where the keeper date came from the DVLA.

David Dunford of the DVLA certainly things so. In an email dated 2nd February, he stated:
MIL have already confirmed they will not process DVLA data obtained from any parking companies.
So, why are MIL providing false information to the DVLA? And if they think they can provide false information to the DVLA and get away with it, how can anyone trust anything from them?

Happy Parking

The Parking Prankster

25 comments:

  1. Are there any situation were a parking company is allowed to pass on Keeper's details obtained from KADOE to a debt collection agency? Have any of the usual suspect debt collection agencies been vetted and approved by the DVLA?

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  2. A debt collection company can collect the debt on behalf of the parking company. What can't happen without DVLA permission is the parking company sell the debt on.

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    1. Has this been tested in court yet? Has the ico published guidance on this?

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    2. Perhaps the bmpa could contact the ico and ask for urgent guidance,the dvla should be asked to submit it opinion.

      This is the big stuff on which our efforts should be focused. This is what concerns Matt Murdoch, not the odd smiting by Lord Justice Wilkie et al.



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    3. But as any fule kno Matt Murdoch/Murdock doesn't exist so can't possibly be concerned about anything.

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    5. But, I don't want to kill the goose laying the golden eggs.

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  4. So the owner of the vehicle can sue the PPC which sold the data to MIL, or do you sue MIL as well?

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    1. I have issued a Letter before claim to a Debt Collection Company. If successful with the DCC, the PPC will be next, followed by the DVLA in turn.

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  5. Thusfar the ICO has studiously avoided involving itself with the ways in which the DVLA allows access to its data. It seems - to a confirmed cynic - that anything the DVLA does is OK in Wilmslow. So, no there is no ICO guidance on this and I doubt there will be. Whilst the issue has not been tested in court as yet it seems straightforward in that the KADOE contract is explicit in its terms (at section D5) and the passing on of data outside of the limited permitted circumstances may only take place where permission has been granted. A breach of that is in turn a breach of the KADOE contract (regardless of what the DVLA may chose to do) and, given that AOS members are required to adhere to the terms of KADOE, is also a breach of the Code of Practice.

    In PE -v- Beavis the Supreme Court stated "while the Code of Practice is not a contractual document it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term it cannot be right to ignore the regulatory framework which determines how and what circumstances it may been enforced". With that in hand I'm not sure that ICO guidance is neccessary.

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  6. If all the costs against them and also breaches of the DPA keep popping up, MIL might have to change their name to NIL, to more aptly reflect their change in profits.

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  7. I've just re-read the KADOE template contract to look at my original question again. In D5.1 b) KADOE does allow for the PPC to pass data to a Debt Collection Company (DCC) provided that the firm enters into a contract to follow Schedule 2 and the OFT Debt Collection Guidance.
    Schedule 2 has the detailed security requirements that must be followed. Somewhere I've seen that DVLA will audit PPCs with regard to their compliance with Schedule 2. It would appear that there is no such process with Debt Collection companies. This is arguably an oversight.
    In summary, it is possible (but given the steps required, difficult) for a PPC to legitimately pass on Keeper details to a DCC.

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  8. The Data Protection Act, principle 2 says:
    "Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

    The purpose specified in the KADOE contract is to seek recovery of unpaid parking charges.

    Sale of the "debts" to MIL is not only unspecified (and thus in breach of the KADOE contract); it also involves processing the data in a manner which is wholly incompatible with the specified purpose - for rather than the PPC using the data to seek recovery of parking charges, it is taking money in exchange for relinquishing the right to do so.

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    1. I'm trying to figure out how the KADOE contract can explicitly allow DCC's to be sub-contracted but not allow debt to be sold. I'm not 100% certain I agree with Boris's interpretation. Selling a debt is indeed one path towards recovery of unpaid parking charges. I would like to read more of the context around Prankster's comments in his original post attributed to David Dunford.

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    2. In the KADOE contract the permitted activity is for a sub-contractor agreement to be entered into with a debt collector.

      Firstly, there is no sub-contract agreement in MIL's case because the "debt" is being purchased by them. You don't purchase something by means of a sub-contractor agreement. A sub-contractor agreement is to act on behalf of the principal.

      Secondly, MIL will say that their purchase is actually by way of a Deed of Assignment which hands the full legal title (ownership) of the debt. The debt is no longer legally anything to with the PPC.

      Thirdly, debt collection agencies (DCA's) only rarely acquire the title to a debt but are simply employed (by way of a sub-contractor agreement) to chase a debt.

      In this situation there is a distinct but fairly subtle difference between a DCA (MIL) acting as a debt collector and a DCA (MIL) acting on its own behalf and issuing proceedings to secure "its" debt.

      There is no provision within the KADOE contract for the data (along with the debt) to be sold. A sale is after all a commercial arrangement with a view to profit (and that is certainly MIL's intention in these cases) which is, to quote Boris above, "...wholly incompatible with the specified purpose" for which the data was obtained. The DPA doesn't permit the obtaining of personal data for one purpose only to use it for another. That is a breach of the Second Data Protection Principle.

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    3. HO87 - Thanks for a detailed comment. I had mistakenly assumed that depending on the situation, MIL (or DCA's in general) both purchase debt (assignment) and provide a collection service. I agree that assignment is different than sub-contracting.

      I would argue however that selling/assigning debt is not more profitable than if the debt could be collected by the original creditor. People sell debt at a discount on the value of the debt, reducing their profit.

      While not permitted by KADOE, I'm still not convinced that a PPC selling debt is wholly incompatible with the original purpose. I see the situation as Plan A: Collect the debt yourself. If Plan A is too hard, then Plan B is to sell the debt at a discount to someone that thinks they can collect so that you still have some of the money you were owed.

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    4. BUT....the PPCs are not selling real debts to MIL; what they are actually selling is a bundle of evidence of a possibly actionable trespass/breach of contract, which would only harden into a debt when liability has been proved to the satisfaction of the court.

      Furthermore, the PPCs cannot lawfully include the right to sue in the sale package, since you cannot assign a bare right to litigate - see Simpson v Norfolk &Norwich Uni Hospital Trust (2011) EWCA Civ1149. (Trafficking in litigation is not allowed - it offends the public policy against champerty and maintenance - see Prnkster's blog MIL Collections fail in court dated 15 Jan 2016).

      So the PPCs are not only processing the data for an unspecified purpose (selling it to a 3rd party); they are also processing it for an unlawful purpose (champerty). Both of which are incompatible with the original purpose.

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    5. @rjshook This assumes that there was a debt in the first place and that if there was that it is the PPC's to collect. I am unaware of any MIL case in which there was a provable debt in the first instance let alone that it was owed by the person who was being pursued.

      A common MIL scenario would be the PPC's signage was forbidding (there was therefore no contract to park); that PPC have no evidence as to the identity of the driver; the Notice to Keeper was served as late as Day 123 (so there was no keeper liability) and the keeper could show they were elsewhere at the time.

      I'd suggest that there was no original debt, that there was therefore nothing owed by the driver and absolutely nothing owed by the keeper not least because the PPC couldn't get themselves organised sufficiently to serve a NtK in time. Didn't stop them selling the so-called debt on.

      Then there were the cases where as the result of a DVLA audit a particular PPC was directed to cease all action to collect a set of PCN's. Didn't stop them selling those on to MIL either.

      I agree that selling/assigning a debt is less profitable overall than collecting the debt yourself but that approach pre-supposes that PPC's operate in the normal world of commerce. I suggest that even the most superficial of analyses would demonstrate that the PPC is not normal commerce and more closely resembles the way in which tax-farmers of old ran their businesses - if that is what you could call them. The relationship is entirely parasitic.

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  9. MIL is not a debt collector because it is trying to claim on its own behalf. thats my take.

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    1. correct , and the ^ulls&it spouted by the IPC about sub contractors was quickly withdrawn

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  10. In 2015 Mr Brass parked in this car park but, owing
    to the confusion of there being two different sets
    of P & D machines belonging to two separate PPCs, he bought a ticket from the wrong machine. He contested
    a charge from Northwest but the alleged debt was
    sold on to MIL. They pursued Mr B in the Carlisle County Court (9/12/2016) where the judge dismissed
    the case with MrB's £52 costs awarded against MIL.
    Northwest pulled out of this car park last February,
    to be replaced by Smart Parking.
    Meanwhile, a search of the planning registers has
    failed to find any trace of an application for the
    ANPR cameras and associated signage. The local
    planning authority, like virtually every other LPA
    across our nation, says that advertisement consent
    cannot be back-dated - it is only valid from the date
    of a decision. Most LPAs require car park signs to be
    authorised, and this particular authority says that
    cameras on poles also require permission. As HO87 (above, 2nd post) reminds us the Supreme Court held
    that keeper details may only be obtained from DVLA
    if the PPC abides by the CoP; the CoP requires the
    PPC to abide by the law; and car park signs (the
    larger ones, at least) do not comply with the law
    until they have consent. So although this is outside
    the topic being discussed here, it is worth a mention.
    that

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    1. Welcome to the upside-down world that is private parking. Where, seemingly, the rules aren't really rules so much as guidelines when it suits and are readily ignored when to adhere to them is just plain inconvenient. Always worth remembering that there isn't a single body involved in the rule-setting that doesn't make money from the process.

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