Proceedings issued, NTK invalid, Gladstones/Millennium refusing to respond

Coupon-mad

Go for it, throw all the stones you can find then stir them into the mud these firms fester in.

Loadsofchildren123

Right, I've done my assessment of the law on locus standi and applied it to the facts of this case.
The forum doesn't like me putting on lengthy posts, it bans my IP address and it's a faff to get it reversed, so I'm going to post it in four sections. Sorry if that makes it hard to follow.

Loadsofchildren123

My note on whether the Claimant has any locus standi to bring these proceedings. Relevant facts:
The parties:
MDES: The Claimant. Millennium Door and Event Security Ltd – described on its official literature as “trading as the Millennium Group”. Notice to Keeper issued in its name (not Notice to Driver though). Not mentioned in any legible form on the sign at the entrance to the site, or on the signage inside the site relied upon as having formed a contract. It is however mentioned at the very foot of the sign, in extremely small lettering, where its “trading as” identity is stated, along with a list of “divisions” of the group.
MPS: Millennium Parking Services – described on its official literature and in the contract as “a division of MDES formed for the purpose of operating a car park management system in respect of attaching PCNs to vehicles parked without permission or authority”. Named at the top of the Notice to Driver in prominent lettering - at the very bottom of the NtD in very small letters it says that MPS is a “division” of MDES and provides the company registration number.
Barratt Homes: possibly the landowner. A different Barratt Homes company (which could also possibly be the landowner) entered into a contract with MPS (not MDES) for it to manage parking on the land. It’s not known which company is actually the landowner and MDES refuses to say.

This note ignores the issue of whether the landowner entered into the contract (I will put MDES to full proof of that). It concerns the sole issue of whether MDES is the correct Claimant, given that MPS signed the contract and issued the NtD, or whether MPS should be the Claimant (in which case, does MPS have the legal locus standi to sue).

This boils down to three questions:
1. Did MPS have the right to enter into the original contract with the landowner – does it have the required legal personality to have done so, and has it acquired rights and obligations under the contract? The answer to this is clearly no. 2. Or was MPS acting on behalf of MDES, in which case does MDES have the right to step into MPS’s shoes, and claim as its own the rights (and obligations) contained in the landowner contract? Looking at the wording on the landowner contract, I would say no.
3. Even if the contract is valid between MDES and the landowner, if a contract with the driver was formed by the signage, who was it formed with – MPS or MDES?

Loadsofchildren123

What does the landowner contract say?
MPS’s obligations - to instal and maintain signage, to act in accordance with the Approved Operator Scheme, to issue permits where required, and to ticket unauthorised vehicles which the landowner reports to it.
MPS’s rights - to pursue “enforcement procedures set out on the signage”. It specifically states that “All enforcement procedures will be handled by MPS” and that MPS is permitted “the use of a collection company to pursue unpaid PCNs”. Note: the signage simply says in small lettering that any unpaid charges will be “pursued by our debt recovery service” against the keeper – no mention of the right to issue and pursue County Court claims (that is a different argument).

What does the signage say?
It identifies MPS not MDES – about 2/3 of the way down in a box there is small lettering that says “MPS is solely responsible for providing parking space maximisation and is not responsible for [the state of the car park itself]”. Next to this is another box which says that if the PCN is not paid within a set time then Keeper’s details will be requested from the DVLA and the keeper will then be “pursued by our debt recovery service including extra fees”.
There is then the foot of the sign, which contains a series of logos: MPS on the left, Millennium Group on the right, and in between the logos of BPA, IPC and ICO, followed by a site number. Beneath this, in extremely small and illegible writing (too small to read clearly on the paper copy of the sign exhibited to the Claimant’s statement) it says this:
“Millennium Group is a trading name of [MDES]” followed by a list of different Millennium names – MPS, Millennium Trading Services, Millennium Event Security, and Millennium Door Security - followed by this wording “are divisions of [MDES] T/A Millennium Group”. Then it gives a list of phone numbers for general enquiries, payment, 24 hour parking services and training , followed by the registered address and company registration number for MDES and BPA/ICO registration numbers. It’s hard to read this wording on the paper version of the sign MDES has provided, let alone reading it on a sign from a distance on the site.
The signage therefore identifies with reasonable prominence MPS (although it does also have the Millennium Group logo on it, along with 4 other logos). Anything about MDES is hidden in small print.
There is a different sign at the entrance which has not been disclosed, and it prominently displays various logos - the Millennium Group and four of its various divisions (MPS being one) as well as EDEXCEL, BPA, Highfield, POPLA and ICO. There is very small lettering at the bottom of it and I assume that it repeats the wording at the bottom of the other sign. MDES is therefore not mentioned with any prominence on the entrance sign.

The contract and signage therefore clearly refer to MPS and not to MDES, indicating that any contractual rights and obligations are being created between MPS and the other party, not MDES.

Loadsofchildren123

So that brings me to question number 1: did MPS had any legal locus to enter into the contract with the landowner? To have such locus, MPS has to have a legal personality, which is a prerequisite to having the legal capacity to create legal rights and obligations (eg the right to own property, the right to acquire enforceable rights/obligations pursuant to a contract). Without such legal personality, no legal rights can be created, including under a contract.

This is the law: to have legal personality, you have to be a person. There are two kinds of persons: natural persons (ie human beings) and juridical persons (also called juridic, juristic, artificial, legal, or fictitious persons) – these entities are treated in law as if they are persons. Natural persons acquire legal personhood when they are born, juridical persons acquire it when they are created in accordance with law.

A juridical person has a legal name and has rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. The concept of a juridical person is a fundamental legal fiction. The juridical personality allows one or more natural persons (eg the shareholders of a company) to act as a single entity (body corporate) for legal purposes. It also protects shareholders from personal liability.

In some common law jurisdictions (including the UK) a distinction is drawn between juridical persons who are a corporation aggregate (such as a company, which has a number of members) and a corporation sole (which is where a person's public office is deemed to have a separate personality from them as an individual – eg. the Crown, Welsh Government, the Church of England, many of the government’s Secretaries of State). Both have separate legal personality.

Juridical persons therefore include official bodies such as incorporated companies (ie limited companies formed according to the requirements of the Companies Act and registered at Companies House), Co-operatives, Sovereign States, Government Departments, and the EU. They do NOT include administratively “divisions” created internally by companies for their own convenience.

In England and Wales a limited company is a juridical person with a legal personality, but other business entities are not (eg. a sole trader operating under a different name, or a partnership operating under a different name – both use formal business names but are not incorporated or legally created – the name is meaningless legally, it merely gives the business a “brand” and is sometimes named for convenience/accounting reasons – the branded name has no legal personality and cannot acquire or grant legal rights (if you were to sue or be sued as a sole trader/partnership the claim would be in the name of/against the people behind the brand – the sole trader in person, or the partners in person).

In the UK, there are rules about companies trading under a different name to their legal name. Companies are able to trade under a different name (known as the “trading as” name), but they must then display the legal name, registered company number and registered address. In this case, we have MDES stating that it is trading as the Millennium Group – it obeys company law by displaying its real name, registration number etc and its trading name at the foot of the signage and in similar wording at the foot of the contract with the landowner. The same requirements apply to sole traders and partnerships who operate under a different name.

Therefore the answer to question 1 has to be no, MPS had no legal right to enter into the landowner contract. It is not a legally recognisable entity – it is neither a natural person nor a juridical person. The only legal entity here is MDES, which is clearly a juridical person. MPS is not shorthand for MPES – it is not the trading name of MDES. If MPS purported to enter into a contract with the landowner, that contract is unenforceable because of this.

Loadsofchildren123

Turning to question 2: was MPS acting on behalf of MDES, in which case does MDES have the right to step into MPS’s shoes, and claim as its own the rights (and obligations) contained in the landowner contract?

There is no indication in either the landowner contract or the alleged contract with the driver that those contracts are being formed with MDES, and not MPS. MPS is the named party to the landowner contract and there is no indication that it is the trading name of MDES (quite the contrary). MPS is mentioned with prominence on the signage and the NtD (MDES is not). Whilst MDES is identified on both the landowner contract and the signage, it is not with any prominence, and it is clearly stated that it trades as Millennium Group. No other trading name is mentioned. Nowhere is MPS described on any of the relevant documentation as a “trading as” identity of MDES, it is simply described as a “division” of MDES. As a “division”, MPS (and other divisions of MDES) clearly exists for nothing other than administrative convenience (it is clear from the names of the divisions that they each carry out distinct work - Millennium Training Services, Millennium Event Security, Millennium Door Security).

I would therefore argue that the answer to question 2 is no, MDES cannot claim the rights/obligations of MPS in the contract as its own.

Loadsofchildren123

So that brings me to question 3: If a contract with the driver was formed, who was it formed with – MPS or MDES?

The terms of the alleged contract with the driver is claimed to be in the signage. The signage identifies no individual or entity until about 2/3 of the way down in small lettering, where there is a box which mentions MPS, saying “MPS is solely responsible for providing parking space maximisation and is not responsible for [the state of the car park itself]”. The NtD prominently displays the words “Millennium Parking Services” at the top. Next to this is another box of the same size in which it says that if the PCN is not paid within a set time then Keeper’s details will be requested from the DVLA and the keeper will then be “pursued by our debt recovery service including extra fees”.

Then we come to the foot of the sign, which contains a series of logos: MPS on the left, Millennium Group on the right and in between the logos of BPA, IPC and ICO and a site number. It is only at the very bottom of the sign, in extremely small and illegible writing (too small to read clearly on the paper copy of the sign exhibited to the Claimant’s statement) that MDES is first mentioned, and it says this: “Millennium Group is a trading name of [MDES]” followed by a list of different Millennium names – MPS, Millennium Trading Services, Millennium Event Security, and Millennium Door Security - followed by this wording “are divisions of [MDES] T/A Millennium Group”. As mentioned above, there is then a list of different phone numbers followed by the registered address and company registration number for MDES and BPA/ICO registration numbers. It’s hard to read this wording on the paper version of the sign MDES has provided, let alone reading it on a sign from a distance on the site.

The signage therefore identifies MPS with reasonable prominence (whilst it does also have the Millennium Group logo on it, there are a number of other logos), and anything about MDES is hidden in small print.

There is a different sign at the entrance which the Claimant has not been disclosed, and it also prominently displays various logos - the Millennium Group and four of its various divisions (MPS being one) as well as EDEXCEL, BPA, Highfield, POPLA and ICO. There is very small lettering at the bottom of it and I assume that it repeats the wording at the bottom of the other sign. MDES is therefore not mentioned with any prominence on the entrance sign either.

I cannot see any argument in favour of a contract having been formed between the driver and MDES. For there to be a valid contract, its terms and the parties to it have to be clear. Any mention of MDES is hidden in the small print and MPS is mentioned with significantly more prominence: to the extent that any contract is formed, it is therefore held out to the driver that the other party is MPS, not MDES. The rights under the contract cannot therefore be claimed by MDES.

Loadsofchildren123

Following through each of the questions:
If MPS did not have the right to enter into the landowner contract because it lacks legal personality, then the contract must be void as between MPS and the landowner (ie MPS has no rights under it at all).
It cannot be claimed that MPS was acting on behalf of MDES and that MDES has the rights under the contract – although MDES is identified, MPS is not claimed to be its “trading as” name, and MPS is described as one of its “divisions” – a meaningless description although it implies that MPS has the legal personality to enter into the contract which names it as a party. MDES cannot argue that it was a party to the contract, or that the rights under the contract belong to it.
Any contract formed with the driver can likewise only have been formed between MPS and the driver – and again MPS lacks any legal personality so any such contract would be void and unenforceable.

I have found the case of Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 which says that for one connected business entity to pass rights onto another which they can then enforce, those rights must be granted by way of a formal agreement – otherwise each entity is treated as separate and distinct. The court found that a parent company and its subsidiary are distinct entities. Without a formal agreement passing on the rights from a subsidiary to a parent company, the parent company does not own them simply because it owns the subsidiary.

The facts of the case were a bit different, mostly because the two entities both had legal personality, but the same principles must apply to this case, so that MDES cannot argue that rights granted to MPS belong to it (there being no agreement purporting to pass those rights on). This obviously ignores the question of whether MPS was capable of having such rights in the first place, which is a slightly different issue.

In the case, a private company was licenced to provide public transport. The licence limited the fares it could charge. The British Transport Commission (BTC) took over the company, acquiring its shares and becoming its owner. The company then applied to the licencing authority for permission to increase its fares. Permission was refused, on the ground that the travel services being offered to the public were being offered by BTC (its new owner) and not the company itself (this effectively meant nobody could apply to increase the fares, not the company as they said it was not offering the services, and not BTC because it was not the licence holder). The company appealed and it was held that although the shares were owned by BTC and control of the company was vested in it, BTC and the company were distinct legal entities. In the absence of an agency contract between them, the company was not the agent of BTC. BTC therefore did not itself provide the service, the company did. Therefore, the company could apply under the licence to increase the fares. The judgment referred to the much older case of Salomon v Salomon & Co, which is prior authority for the principle that a subsidiary company is not the agent of the parent company, but is an entirely separate entity. To make the parent company responsible for the subsidiary, there must be a contract between them.

Although the case concerned different facts, its principles apply to this scenario. The effect of the authority is that without a formal agreement, MDES cannot step into MPS’s shoes and enforce the rights granted to it by the original contract with the landowner. That presupposes that MPS actually had the right to enter into that contract (which it doesn’t). I’d argue that this is a separate point. Although MPS has no legal personality of its own, it is described as a “division” of MDES and MDES is trying to step into its shoes in terms of the rights granted to MPS by the original contract with the landowner. The case supports the position that MPS and MDES should be treated as separate entities and cannot be treated as one and the same.

Coupon-mad

All I can say is nicely done - I am helping someone with a Millennium PCN set aside so if you achieve something with this, I will also find it very useful, as will other posters.

Loadsofchildren123

Coupon Mad, does it make sense to you?
I think that the Ebbw Vale case has to apply - just because only one of the 2 entities has legal personality, the same principle surely applies that they can't try to jump on MPS's coat tails and claim the contract as theirs, when they didn't sign the initial contract and didn't issue the ticket?
They will of course argue that MPS is part of MDES and that Ebbw Vale is therefore different because they are not 2 separate entities. But I think they may have stuffed themselves by having made such an effort to separate off MPS on all the documents. I wonder what their website says, I will look tomorrow. I've seen reference on another thread to BPA rejecting an appeal in which they described MDES as "trading as MPS", which is clearly untrue.
Why for instance get MPS to sign the contract (rather than MDS), and make such specific reference to it as an entity in all the signs? If it was the trading as name of MDES it would be different, but they make clear it isn't. They are clearly trying to hold it out as a separate entity.
I can see their argument, but I think mine has a chance of holding weight.
Sadly I think this aspect of things will be redundant because I think the keeper (which isn't me) will trump them on POFA because the NtK was 48 days out of time and because of the particular facts of the case I cannot imagine there will be any finding that the keeper was the driver. But I'd like the chance to argue it because if I succeed this effectively means that not a single Millennium ticket is enforceable (they are bound to have made the same mistake on other sites/contracts). Although a DJ decision is persuasive not binding, surely around these parts (where Millennium operates) the other DJs will not go against one of their colleagues.
My hearing is end of March, of course I'll let you know. Nothing more for me to do now other than my Skeleton in time for the court bundle - there's over a month til the final hearing so I'm not rushing to do that and frankly I don't want to give them too much notice of my legal arguments and authorities - I intend to serve it a few days before the bundle is due to be filed. I will post my draft Skeleton for comments/suggestions.
I saw that other thread today where they'd gone on the forums to try to stuff the keeper (not Millennium though) - where do they find the time to trawl these things? Their time would be better spent settling cases that they are clearly not going to win (like this one)