Vehicle Control Services PCN in a residential car park

MoneySavingPest

nosferatu1001 said:

Were they dormant when this contract was allegedly signed?
If so then they cannot have entered into any contracts of any form; the CARE OF that it was signed under is impossible to fulfil. 

This feels like it could be a killer point. Is it true though? Based on a quick trawl of the web, it seems you can be a dormant company as long as you have no significant accounting transactions. There is a fee of £25 for this contract, which would be a significant accounting transaction if paid by the dormant company - but wouldn't it be paid by the company they are acting on behalf of (Rewley Park Management) and thus OK? As long as the dormant company doesn't handle any money, they might still be able to enter into a contract.

Umkomaas

That's a seriously 'legal' question that isn't within the ambit of a parking forum designed to fight private parking charges at first base - within a couple of months of the ticket issue. Why not ask your question on a forum specifically dealing with higher level legal issues? LegalBeagles forum might provide you with your answer. 

I'm afraid we are being asked questions that really are well beyond our pay grade!  Martin simply doesn't pay us anywhere near enough! 😊

MoneySavingPest

Umkomaas said:

That's a seriously 'legal' question that isn't within the ambit of a parking forum designed to fight private parking charges at first base - within a couple of months of the ticket issue. Why not ask your question on a forum specifically dealing with higher level legal issues? LegalBeagles forum might provide you with your answer. 

I'm afraid we are being asked questions that really are well beyond our pay grade!  Martin simply doesn't pay us anywhere near enough! 😊

Sure, understood. I guess I am getting the bit between my teeth as my hearing date approaches!

MoneySavingPest

I am probably going to get asked the question on whether I was the driver by the Claimant and possibly the judge.There are only two named drivers on the certificate of insurance (which I have submitted as evidence), my wife and I. So if I say I was not the driver, the driver is still identified. I have been careful not to reveal the identity of the driver so far, defending as keeper. I am planning at the hearing to say if asked directly that "I am giving no indication either way as to who the driver was on the day, as that is something for the claimant to prove". There are a few other questions like "describe what happened on the day" which could get tricky as well - I can answer as to what the driver did in the third person, but then if it switches to what I was doing I have to revert to "I am giving no indication either way as to who the driver was on the day, as that is something for the claimant to prove if he wants to rely on it". Just wondering how badly it might play with the judge - it is obviously evasive to a degree, although understandable from a legal perspective. 
The Claimant is relying on POFA to enforce keeper liability - other than the landowner authority point and poor signage, I can't actually see any POFA non-compliance on the attached PCN - can any experts here see any?

Umkomaas

There are only two named drivers on the certificate of insurance (which I have submitted as evidence), my wife and I. So if I say I was not the driver, the driver is still identified.

Would you not let me drive your car?  I've got a clean driving licence, no conviction, fully insured, full no claims bonus, not even a speeding ticket or parking ticket, council or private.  

Honestly, I'll drive your motor carefully, boss.

Fruitcake

As above. As long as the vehicle is insured, anyone else can drive it with your permission as long as they are licenced and insured to do so. 

Do any family members, friends or neighbours, or garage mechanics have permission to drive the car? 

Having another named driver helps because it means on the balance of probabilities it was just as likely to have been someone else. 

If you were not driving, say so. If you cannot remember who was driving, say so. Say who else (but without naming them) could have been driving on the date in question.

Fruitcake

With regards to the contract, you should check the strict requirements of Sections 43 and 44 of the Companies Act 2006. Both are very short.

I'll expand on both later today if you can wait that long. I could have done this several days ago had you followed the advice I gave you on the 16th.

The crucial point is that VCS did not sign the contract provided as evidence under a statement of truth. This is the contract they intend to rely on in court, but there is no signature from anyone within VCS who is authorised to form a contract with another party. 
This fails the requirements of both S43 and S44 of the above Acts.

There is no proof that VCS ever had an agreement in the form of a legally binding contract with an agent of the landowner. 
Complain vociferously if the scammers try to ambush the court with a different version of the contract on the day of the hearing, and object if the scammers ask for an adjournment to give you time to look over new evidence introduced outwith the CPR.

A contract to scam must be between the scammers and the landowner, or flowing from the scammers via the landowner to the landowner's agent. If a contract exists between the scammers and agent, then there must also be a contract between the landowner and the agent authorising the agent to form contracts with a third party scammers.

D_P_Dance

If is is found that the contract is invalid, will they be ordered to repay all PCNs, and if do, do they have the wherewithall?    

Fruitcake

nosferatu1001 said:

Peerless Properties Ltd - actually the landowner? Yes or No
3.1 - sheesh. Stupid company signing that. VCS can make the signs say whatever they like...
Nothing authorises them to offer parking contracts in their own name, they are merely a non-exclusive occupier. 

It's worse than that. The contract makes the client responsible for ensuring authorised motorists display a permit. If a motorist fails to show a permit, the client could be liable for a breach of contract claim.

Fruitcake

Starting with Section 43 of the Companies Act 2006: -

Companies Act 2006 (legislation.gov.uk)

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.

The contract fails this Act because,

(1) (a), It has not been written under the common seal of either party. 

(1) (b), It has not been signed on behalf of VCS by any "person acting under its authority, either express or implied."

A person acting under the authority of a company would be, say a director or owner, or the position of a person named as having the authority to sign a contract would be included in the company's Articles of Association, (implied authority), or would be specifically named by an owner or director of a company (express authority). No such authorised or named person has signed on behalf of VCS.
According to Companies House, PS Hughes is not a company owner or director and their employer's articles of association do not mention Property Managers as having implied authority to form a contract.
Neither has PS Hughes been named by their employer as having express authority to form a contract.

(2), It is reasonable to assume that "formalities required by law" include signatures of all parties named on the contract in order for "a contract to be made by or on behalf of a company" to be legally binding.

The Claimant has not provided any proof that anyone named on the contract has the authority to sign on behalf of their employer or the landowner.

No contract from or flowing from the landowner has been provided to show the client has the authority to form a contract with the claimant.
There is no proof that the landowner is even aware of such a contract.

I therefore put the claimant to strict proof of the contrary.