Excel / myparkingcharge Final Demand

myparkingchargevictim

Snakes_Belly said:

Thank you for the report.

The contract is interesting as it is similar to the contracts for a number of ongoing cases at the moment including the car park at Derby Street, Burton on Trent.  Although they may have a lease there is no evidence as to whether the lease is still in force. I always thought that these statements were not worth the paper that they are written on and a copy of the actual lease should be provided. 

The Judge in my case was hinting heavily to the Claimant to produce such document, but because it was not provided and the Claimant didn't have it, his view is the claim couldn't proceed. It's a bit like me making up a company called "ACME Estates" and writing some dodgy text to say I have interest in Buckingham Palace. Like you say, its "not worth the paper it's written on".

Umkomaas

Is that exactly as the 'landowner agreement' was presented to the court, ie with no location, no address, no post code?

myparkingchargevictim

Umkomaas said:

Is that exactly as the 'landowner agreement' was presented to the court, ie with no location, no address, no post code?

Nope, I've redacted them (tbh, I guess there's no need now ) 
It had the location, address and postcode (Para 1). But the rest of the document is untouched.

D_P_Dance

You might also consider issuing the PPC a Letter of Claim ...

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

AnotherForumite

myparkingchargevictim said:

Snakes_Belly said:

Thank you for the report.

The contract is interesting as it is similar to the contracts for a number of ongoing cases at the moment including the car park at Derby Street, Burton on Trent.  Although they may have a lease there is no evidence as to whether the lease is still in force. I always thought that these statements were not worth the paper that they are written on and a copy of the actual lease should be provided. 

The Judge in my case was hinting heavily to the Claimant to produce such document, but because it was not provided and the Claimant didn't have it, his view is the claim couldn't proceed. It's a bit like me making up a company called "ACME Estates" and writing some dodgy text to say I have interest in Buckingham Palace. Like you say, its "not worth the paper it's written on".

Funny that you used that analogy, as there is case law where the judge ruled that an operator does not need to have a contract with the landowner; referencing Buckingham Palace also:

VCS v HMRC 2013 [EWCA Civ 186]: 
22. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. 

There was also a recent appeal with OPS where the Judge made a similar judgment:

32. Therefore, the terms offered the driver a licence to park on the terms and conditions set out in the signage.

This is a standard situation which is replicated in car parks across the country. It is not dependent upon proof that the parking company has authority to operate a car park, although if it did not the freeholder would be likely to take issue with it.

33. Mr. H****** argues that even if the freeholder had not given authority to the Appellant to operate the car parking spaces, it would still have been able to grant a licence to the Respondent. Of course, this would not be binding on the freeholder but until the freeholder got involved this would not matter. There is nothing to suggest in the judgment that the DDJ considered the question of whether the Appellant was in possession of the car parking spaces even though there was plenty to indicate that it was. A possessory title is good enough against anyone without a better title.

34. There were plenty of the Appellant’s signs around the car park setting out the terms and its name. It was also enforcing these terms against people who breached them.

35. The DDJ was therefore wrong to conclude the Appellant “has not proved that it has a cause of action”.

Although the judgment recognises that the claim is in contract, there is no analysis of what the Appellant had to prove nor why it was necessary to establish that it had authority of the freeholder to sue.

Think you were lucky, as any decent advocate would have been prepared to rebut the landowner authority issue:

Coupon-mad

Whilst there are Judges, such as HHJ Simpkiss, who don't know that landowner authority is required before DVLA data can even be obtained, there is the MHCLG, who does.  There are bigger battles than the odd war, to be won.

AnotherForumite

Agreed, and it certainly should be the case that there is landowner authority; but that is currently a matter between the DVLA and the operator.
The fact of the matter is that there will be little or no operators that don't have the landowners authority / right to occupy; indeed, I am pretty sure that in this instance Excel would have no problem providing evidence to this effect to the DVLA (they will just produce a copy of their lease).

Snakes_Belly

"On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made."

The process of selling shares that are not owned (naked shorts) with a view to buying back when the price fell has now been banned or tightly regulated in many countries. This manipulation of the markets exacerbated problems during the banking crisis.

"Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right." 

There is no example given to this comment. If buying an option that is exactly what it is an option to buy or sell and a premium/fee is paid for this. If a forward contract then the contract has to be closed out on the due date. 

The judge could mean a power of attorney which would be specific as to the powers conferred on the attorney. A house sale or purchase would not go ahead on the basis of a cobbled up authority by a third party.

Excel would have no problem providing evidence to this effect to the DVLA (they will just produce a copy of their lease).
So why not produce it in court? 

In the past they have produced contracts that have been out of date  (Turnip's case). 

Coupon-mad

The OPS appeal decision is so full of errors that there has been no point even referring to it here.  The HHJ didn't even know or understand what the added costs were for/not for (he thought the £12 'trace fee' was DVLA) and he didn't apply the CRA 2015 test of fairness at all to the consumer notices.  He thought the test was the same as in the Beavis case days (fairness of terms only, like under the UTCCRs).  It's such a bad decision that it will carry no persuasive weight, rather like VCS v Ward - a truly unjust decision.

nosferatu1001

Or it turns out the contract was with VCS aand not Excel
Or as with Britannia it was with another of the group