First Parking PCN

Fruitcake

I'm assuming the contract redactions have been made by the claimant.

Have a look at this thread especially the judge's findings with regards to redactions at the disclosure stage being unacceptable.

Note that the Hancock vs Promontoria case was heard in the appeal court and is therefore persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

Also note that the signature page of the contract has been unreasonably redacted and therefore breaches the strict requirements of Sections 43 and 44 of the Companies Act 2006.

Neither signatory has been identified so you should aver that they did not have authority to sign a simple contract in accordance with S43 of the CA 2006, and the document has not been validly executed in accordance with S44 of the Act.

Pick out the details from this generic wording I knocked up for similar cases, including Judge Middleton's findings in the Truro case.

Companies Act 2006

 

Companies Act 2006 (legislation.gov.uk) Section 43

 

 

Companies Act 2006 (legislation.gov.uk) Section 44

 

For S43

 43 Company contracts

(1) Under the law of England and Wales or Northern Ireland a contract may be made—

(a) by a company, by writing under its common seal, or

(b) on behalf of a company, by a person acting under its authority, express or implied.

(2) Any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of a company.

 

1 (a) Rarely used

1 (b) Express authority means a statement from a person such as the owner, a company director or company secretary, or someone with significant interest in the company, has the authority to form legally binding contracts with another party.

Implied authority would usually be found in the company’s Articles of Association or similar as held by Companies House stating that a person holding a specific title such as Regional Manger or Property Manager has authority, or a person specifically named by the owner, director, company secretary, or someone with significant interest in the company has authority.

 

 For S44

 

44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

The alleged contract has not been executed in accordance with paragraph 1 because the neither party has affixed its common seal, it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

 

 District Judge Simon Middleton said in his judgment of case number F1DP92KF heard at Truro County Court on the 3rd of July 2020 that, "Claire Williams could not have signed the contract on behalf of the owner because she is not a director of the owner."

 

If you have already submitted your WS then submit a supplementary WS with anything not already covered by you, even if it is sent late.

zipadee

I have just received an email which states

Dear Sirs,

I write to notify you that the hearing listed on 23rd September 2021  has now been vacated.

 Please see the attached Order for further directions to be complied with within the next 5 days."Hearing 23/09/21 vacated due to judicial availability"

And the order states;

Due to a lack of Judicial availability

IT IS ORDERED THAT:-

1. The hearing listed on 23 September 2021 is vacated and will be relisted.

2. Parties do file their dates to avoid covering an 8 month period within the next 5 days.

Dated 17 September 2021

Not sure I understand what 2. means and what I need to do. 

Thanks

Jenni_D

2 means you tell the court when you won't be available for a hearing over the next 8 months, and you do that within 5 days of the date on the order.  

zipadee

Thanks Jenni. Is it OK to say I won't be available until December or is that too extreme. I've got a lot on at work with a big project. I guess I can suggest it. Thanks

Coupon-mad

Errrm, surely you are excluding December and New Year as well?  Start with being available from 10th January (unless you celebrate something then) or a baby is due, etc.  Exclude EVERY week that you need to exclude, don’t compromise yourself.

D_P_Dance

Complain to your MP.

zipadee

Hi

My hearing is on  now Thursday 17th February (was originally September 2021) and I was wondering if anyone had any advice on how best to prepare. I have read a post by AlwaysTrying23 on his thread which sounds like good  advice to follow.

He posted a really good summary of his hearing which I have copied below. I think the three points he makes below are pretty much the same three I would like to point out in my defense. Will the judge ask me in detail to discuss the law around the cases I have referenced for each of these points. Sorry not really sure what to expect and I guess a lot depends on the judge.

Thanks

The judge stated she had briefly read both witness bundles and thanked me for my thorough submission. She went on to allow the claimant to cross-examine me. He asked me two questions. 

Did I see the signage within the car park (he made reference to a generic sign within his evidence) and also asked whether I received the initial NTK (which I stated some letters were missing and thumbed a little when trying to confirm the dates of the various letters I received). 

After those two questions, the judge invited me to conclude my position with a closing argument, which was for me to raise any key points I felt the judge should take into consideration. Fortunately I jotted down a priority list of basic points which allowed me to refer back to my witness bundle in order of importance to my defence. I also noted the points raised by the claimant and attempted to counteract them. 

My first point was Promissory Estoppel. 

The second was Unloading is not parking. 

The third was the redacted contract. 

I had backup amo on signage etc but felt that if 1 of the above could stand, I wouldn’t have to rely on it. 

I went through each of my three points in detail along with referencing the relevant case. I then went on to discredit the two cases they were relying on, Beavis case against my different set of circumstances and also the Semark case due to the lack of input from the defendant. I finally mentioned that I could not be certain that the sign referenced by the claimant was even present within the car park on the day in question. They had provided an image from the day that was not even visible at one single cars length so they had no supporting evidence. 

On the claimants closing statement, he reiterated that I entered the car park when I could have existed, I then proceeded to park and as such the contract was formed regardless. The judge pushed back and asked whether at the point of entering the car pack, would the claimant expect the motorist to reverse back onto a busy road without entering? He replied yes. Then how do you allow for a motorist who enters and exits their car to consider the T&Cs? By the claimants own admission, there is no consideration for the motorist to make a decision, whether to stay or go. He tried to continue arguing in vein. 

The judge then went to consider the points and called back 15 minutes later with her findings. 

Judge found that having explored the Jopson case, the parameters are clearly set out to differentiate the difference between unloading and parking. I.e cars in a queue of traffic, whilst stationary, are not parked. The same could be said for a post man or milk man. 

Judge went on to reinforce the fact that I was granted access by a car park operator who would be working on behalf of the landowner. She asked whether it is reasonable to believe that on gaining access as a delivery driver, would I a) be bound  by the T&Cs of the car park and b) expect to pay a PCN  as a consequence. Judge found this unreasonable. 

A great point she also made which has been mentioned here previously was that the sign stated Permit Holders Only. I was not a permit holder therefore how could I be bound to the T&Cs. There was no mention of delivery drivers and whether loading/unloading was permitted or not. The Uni is a large organisation. Delivery details should be stated clearly if delivery drivers are to be bound by T&Cs. 

At this point she stated she was not satisfied that I had parked and as a result, no contract could be formed regardless, therefore the case was thrown out.  

zipadee

Hello again. My court case is this Thursday 17th. Just wondering if anyone has any advice in terms of how best to prepare and what the judge is likely to ask me. The hearing will be held remotely.

Thanks 

Umkomaas

zipadee said:

Hello again. My court case is this Thursday 17th. Just wondering if anyone has any advice in terms of how best to prepare and what the judge is likely to ask me. The hearing will be held remotely.

Thanks 

Have a look at this if you've not previously seen it - originally posted by forum regular @KeithP.

https://www.youtube.com/watch?v=n93eoaxhzpU

Le_Kirk

zipadee said:

Hello again. My court case is this Thursday 17th. Just wondering if anyone has any advice in terms of how best to prepare and what the judge is likely to ask me. The hearing will be held remotely.

Prepare your papers, write yourself a SHORT crib sheet of the important parts you want to get over to the judge of he/she does no raise it.  Do not  shoot yourself in the foot by continuing to press your case if you sense that the judge is on your side.
Prepare yourself as if you were going to an important business meeting, dress formally, wear shoes and (if you normally wear a tie to work, do that - no idea if you are male or female and no insult intended).  Nobody knows what the judge will ask except the judge, so best advice is to know YOUR case inside out.  WHEN you win, do not forget to ask for COSTS to be awarded to you.