On the 12th of March 2015, a writ of control was issued against Mr Miller for £408,000. This related to a judgment from March 2010 for £330,000. I am assuming that the difference between both figures relates to interest on the debt. The Creditor passed the writ of control to a High Court enforcement company to enforce. Of significance, was that the address on the writ was ‘Sunnyview’. In 2014, Mr Miller had moved from that address to a rented property (called Yew Tree).
On 26th March 2015, the enforcement agent visited an airfield where Mr Miller had a business. The purpose of the visit had been to locate two small aircraft (a Pitts and a De Havilland Chipmunk owned by Miller). The enforcement agent met with Mr Miller and took control of the vehicle that he had been driving (a Jeep), and one of the aircraft (the Pitt). The claimant made payment of £1,600 towards the judgment. Goods were not removed that day.
Following the meeting, Mr Miller claimed that the enforcement agent went around the airfield ‘questioning everyone’ before gaining peaceful entry into an airfield building where he looked for documents. He left, taking documents and keys to the aircraft.
The Enforcement Agent then went to an alternative address (xxxxx Mills) to make enquiries. Mr Miller had told the enforcement agent that this location was connected to his business. There he was allowed access to the property to search for the second plane, the De Havilland Chipmunk. The plane was there, together with other aeronautical parts belonging to Mr Miller. A short while later, Mr Miller removed the plane to a friend’s barn in Cirencester.
The following day, the 27th of March 2015, Mr Miller visited the High Court and made an application for a temporary ‘stay’ of the writ. The stay was lifted 2 months later, on the 27th of May 2015, and re-imposed on the 5th of June 2015. It was finally lifted on the 24th of July 2015, after he failed in an application to ‘set aside’ the judgment.
Miller arrested and charged with ‘interfering with controlled goods’
Despite a ‘stay’ being imposed, and despite his Jeep and one of the aircraft being ‘taken into control’, Mr Miller removed the aircraft and aeronautical parts to various locations including his rented property (‘Yew Tree’). He parked the PITTS on his driveway under a tarpaulin. The enforcement agent became aware that the seized items had been moved and accordingly, on the 20th of June 2015, he attended ‘Yew Tree’ . Nothing was removed on that day. Instead, the police were called and Mr Miller was arrested and charged with ‘inferring with controlled goods’.
The court stay was finally lifted on the 24th of July 2015 and, the following day, the enforcement agent removed goods. Further items were removed a couple of days later.
According to Mr Miller, he had a number of hearings for the criminal charge, the final one being in January 2016 at Swindon Magistrates Court where he claimed that he had been acquitted. No details appeared to have been provided about the acquittal (more on this shortly). He claimed that the Magistrates Court had supposedly been satisfied that he had moved from ‘Sunnyview’ to ‘Yew Tree’ in April 2014. It would appear that he had been assisted in court by an internet sourced ‘McKenzie Friend’.
Removal of goods and sale
The goods were eventually removed by the enforcement agent at the end of July 2015 and sold at public auction for £34,000. The auction was advertised.
Mr Miller issued a claim for £3.4 million
A year after the goods had been removed on the 18th of July 2016, Mr Miller issued a claim. The Particulars of claim were for £3.3 million and included:
- Breach of Statutory duty, specifically the duty to give a Notice of Enforcement under Para 7(1) of Schedule 12.
- £3,000 for trespass to ‘Yew Tree’ whilst a ‘an injunction’ had supposedly been in place (it transpired at trial that there had not been any such ‘injunction.’)
- Defamation (£500,000 for personal and business defamation). This was on the basis that the enforcement agent had supposedly ‘made untrue and defamatory statements’ to business colleagues.
- £100,000 damages for distress, anxiety, depression, fear, stress, and suicidal ideation, brought on due to the “shock element of enforcement, the allegations, rumours, lies and felling of ‘invasion to home’, to loss of goods, loss of work and work related opportunities, false allegations of criminal behaviour” and subsequent prosecution and preparations for criminal trial.
- £401,000 for replacement of PITTS Model 12 together with shipping costs, etc. (the claim had originally been for £200,000).
- £186,000 for replacement of De Havilland Chipmunk and replacement cost of additional aeronautical parts.
- £150,000 for replacement engine
- £1,800,000 for loss of future profits
- £480,000 interest under Section 35a of the Supreme Courts Act 1981
Note: The value of £186,000 was surprising, given that Miller had confirmed that a similar model with fewer hours, had sold for just £6,000 in January 2015!!
Basis of the claim
Mr Miller’s claim was simply that:
- Enforcement began without him receiving a Notice of Enforcement
- That the enforcement agent entered premises without a warrant. He claimed that he had not received a Notice of Enforcement as he had moved from the address on the writ of control (Sunnyview) in April 2014 and that the enforcement agent had traced him to a different address (Yew Tree).
He relied upon the following regulations:
- Regulation 8(1), which provides that a Notice of Enforcement must be given ‘by post or by hand’ to ‘The place, or one of the places, where the debtor usually lives or carries on a trade of business’.
- Para 9 of Schedule 12, which prevents an enforcement agent from taking control of goods unless that are on a ‘highway’, or ‘on premises that he has power to enter’, under the Schedule.
- Para 14 of Schedule 12 which provides that an enforcement agent may enter premises: “if the enforcement agent reasonably believes that they are the place, our one of the places, where the debtor (a) usually lives, or (b) carries on a trade or business”.
Particulars of Claim
The particulars were filed on almost the very last day allowed under the Civil Procedure Rules (4 months from the date of issue of the claim). Throughout the proceedings, it was maintained by Mr Miller that the problems arising under the claim had arisen due to the ‘enforcement procedures’ not being complied with and that, accordingly, the enforcement itself had been invalid, and that the breach allowed him to claim compensation under Para 66 of Schedule 12.
At trial, the defendants claimed that:
- The Particulars of Claim were “so defective that they would obstruct the just disposal of a claim“ and further, that the pleadings had been “wholly speculative… without any explanation for them” and ought to be ‘struck out’.
- Mr Miller failed to provide any evidence whatsoever to support his claims to the value of both planes.
- Of serious concern was that, with respect to the PITTS aircraft (to which he was claiming £401,0000 ), he claimed that he had given the plane away to somebody in lieu of a debt of £200,000 that he owed to that person.
Hearing of 28th June 2017
During the hearing on the 28th of June 2017, it became apparent that the Particulars of Claim contained a number of allegations which appeared to be “inadequately pleaded“ and which the Judge considered; “had little prospect of success“. These included:
- The claim for distress, anxiety, fear, stress and depression
- The claim for personal injury
- The claim for defamation.
In recognition of the hopelessness of his claim, Mr Miller instructed the court that, with the exception of the claim for trespass (see below), he did not intend to pursue these matters any further. The judge commented that this was a “sensible acceptance of the fact“, given that :
- Mr Miller had provided no medical evidence at all to support a claim for personal injury, distress or anxiety; and
- His claim for defamation was “not sufficiently particularised” and was “hopelessly vague”.
Claim for trespass
The Judge commented that Mr Miller had recognised the fact that he had no real prospect of success on this point, given that he was not the owner of the properties in respect of which trespass had been alleged and, furthermore, that Regulation 66(2) of Schedule 12 made it clear that, if an agent is in breach of the regulations, it does not make him a trespasser!!
Claim for damages arising from breaches of Schedule 12
Under this heading, Mr Miller relied upon the supposed non service of the Notice of Enforcement. The Judge commented that the Defendants had such a strong case that he had no doubt that Mr Miller did not have a real prospect of success and, accordingly, that there was no other compelling reason for a trial to proceed.
It is important to note that, in relation to Mr Miller’s claim on non service of the Notice of Enforcement, the defendants stated that they had every reason to believe that ‘Sunnyview’ was the place, or one of the places, where the Claimant usually lived, for the following reasons:
- Sunnyview was the address given by the creditor’s solicitors in their instructions to the First Defendant
- According to the up-to-date CAA information provided by the creditor’s solicitor, Sunnyview was the registered address for three aircraft belonging to the Claimant.
- The Writ gave Sunnyview as the Claimant’s address
- The Claimant confirmed on the telephone on the 26th of March 2015, that his debt card was registered to Sunnyview
- The enforcement agent photographed various items of post addressed to the Claimant at Sunnyview
- The Jeep that had been taken into control was registered to Sunnyview.
In relation to the damages claimed, the Judge made some interesting comments:
- He disagreed with the assertion of Mr Miller’s solicitor that, if there had been a breach of the enforcement provision, that it must follow that the Claimant was entitled to succeed on the basis of the figures outlined in his claim.
- In rejecting her argument, the Judge referred to para 66(5)(b) of Schedule 12, where the award of damages would be limited “in respect of loss suffered by the debtor as a result of the breach”. In other words, only if there is a loss suffered as a result of the breach, would the court have discretion to award damages. He stated that Mr Miller would have needed to prove a link between the breach and the loss, and that he had not done so.
- He also did not accept Mr Miller’s solicitor’s submission on the basis of damages and referred to the legal case of Chubb Cash v John Crilley, which provides that the usual measure of damages applicable by common law applies and, accordingly, where a sale has taken place in the open market (in this case by auction), the value of damages would be limited to the amount realised at auction. In other words, even if Miller had won his claim for damages, such a claim would be limited to the amount that the goods has sold for (£34,000).
- The claimant had duplicated part of his damages claim and the Judge observed that it was his view that Miller had sought to put his claim for damages “as high as he could“.
- Turning again to the Statement of Claim, the Judge referred to the submission of one of the defendants where they considered that the pleadings had been “wholly speculative“ and, in some cases, exaggerated. He stated that Miller’s claim that the engine parts would attract some historic value was not only “extremely speculative“, but was also “imbued with a sense of unreality“.
- He concluded that another aspect which indicated exaggeration (in this case, of £500,000), was in relation to the claim for defamation, which Mr Miller had abandoned at an earlier stage in the proceedings. The Judge stated that his claim on this point had not been properly pleaded.
- The Claimant’s claim had no prospect of success.
Miller was ordered to pay costs of approx £36,000