UKCPM Claim form recieved, Poor Signage

TiredJockey

Fruitcake said:

Please confirm that the scammers redacted the signatures on the contract. I don't want to go down a badger hole about redactions in disclosure if it wasn't redacted by the scammers.

I can't understand why anyone would redact the registered address of the alleged client.

Yes I redacted nothing on the contract. That is their redaction. 

Fruitcake

Excellent. I'll be back within the hour to comment on the scamtract.

Has the driver's identity been revealed, or have the scammers complied with the PoFA and holding the keeper liable?
If the driver hasn't been identified, what are you going to ask you who it was?

Para 2.3 of the scamtract only provides for pursuing drivers. Keepers are not mentioned.

TiredJockey

Fruitcake said:

Has the driver's identity been revealed, or have the scammers complied with the PoFA and holding the keeper liable?

Para 2.3 of the scamtract only provides for pursuing drivers. Keepers are not mentioned.

I did not reveal the driver, my defence identifies myself as keeper of the vehicle. As for if they complied with the PoFA i'm a bit unaware on that front. The particulars of their claim state "the driver of the vehicle parked in breach of terms" and makes no mention of the registered keeper or PoFA. 

Fruitcake said:

If the driver hasn't been identified, what are you going to ask you who it was?

Sorry not sure what you meant by this can you clarify? 

Fruitcake

TiredJockey said:

Fruitcake said:

Has the driver's identity been revealed, or have the scammers complied with the PoFA and holding the keeper liable?

Para 2.3 of the scamtract only provides for pursuing drivers. Keepers are not mentioned.

I did not reveal the driver, my defence identifies myself as keeper of the vehicle. As for if they complied with the PoFA i'm a bit unaware on that front. The particulars of their claim state "the driver of the vehicle parked in breach of terms" and makes no mention of the registered keeper or PoFA. 

Fruitcake said:

If the driver hasn't been identified, what are you going to ask you who it was?

Sorry not sure what you meant by this can you clarify? 

Sorry, the doorbell went as I was typing the last question so I just hit send without correcting it.

The question should read, "What are you going to do if the judge asks you, who was driving, or, were you driving?

If it wasn't you, then you just say so. If you don't know, then just say so. This is especially believable for an historical event where several people are insured to drive the vehicle, or have access to it.
If your answer is, I would rather not say, or I am not required to say, the judge may decide on the balance of probabilities that it was the keeper.
Obviously you must tell the truth. 

If the keeper was not the driver and the NTK wasn't PoFA compliant, and the scamtract doesn't mention keepers. then that is something to mention.

Sometimes though it is better to reveal the driver's identity because they will be a witness and possibly the only witness, to what happened. 

Fruitcake

With regards to the contract: -

Section 43 of the Companies Act 2006 requires a Simple Contract to be signed by both parties, either under each company's common seal, or by someone with express or implied authority to form a contract.
The Act is very short so it is worth printing it off for reference.
Companies Act 2006 (legislation.gov.uk)

The alleged contract has failed the strict requirements of S43 of the Act because: -

It has not been signed under either company's common seal.
The identities of the signatories have deliberately been withheld. There is no proof that either signatory has express or implied authority to form a contract on behalf of their respective companies.
Express authority would be (my interpretation) a contract signed by an officer of the company such as the owner(s), a director, or a company secretary. The signatories cannot be identified as an officer of either company and therefore it is assumed that neither one has express authority within the meaning of the Act.

Implied authority would be (my interpretation) a person occupying a position within each company where that position (job title such as property manager) has been given the authority to sign a contract by an officer of the company, or stated in company documentation such as its Articles of Association.

Since the names of the signatories have been hidden, and their positions within each company have not been stated, it is averred that neither signatory has either express or implied authority to sign a contract on behalf of their respective companies.


Section 44 of the Companies Act 2006 requires a document to be signed under its common seal, or by two authorised signatories for it to have been validly executed.
The Act is short so it is worth printing it off for reference.
Companies Act 2006 (legislation.gov.uk)

The alleged contract has failed the strict requirements of S44 of the Act because: -

It has not been signed under either company's common seal.
It has not been signed by two authorised signatories from each company. 
S44 of the Act defines the two authorised signatories as directors, or company secretaries, or a director and a witness.
The identities of the signatories have deliberately been withheld. There is no proof that either person is an authorised signatory as defined by the Act.

Since the names of the single signatories from each party have been hidden, and their positions within each company have not been stated, it is averred that neither signatory is authorised to sign a contract on behalf of their respective companies.
Only one signatory from each party is present.
Consequently the document purporting to be a contract has not been validly executed.


More about the redactions in my next post.

Fruitcake

With regards to the redactions in the alleged contract, have a look at this thread, especially the judges comments in bold italics from the Hancock v Promontoria case.

Redactions in Disclosure — MoneySavingExpert Forum

It might be acceptable say to redact how much the scammers are being paid to operate, but it is entirely unacceptable to hide the names of the contract signatories and their positions within the company. 
Note that this was an appeal court decision so it is persuasive on the lower courts. Quote the case number and the judge's comments in your supplementary WS.

Fruitcake

And another thing.

Portland Place Lts are letting agents, not the landowner.

There is no contract between or flowing from the landowner. The contract is with an alleged agent of the unknown, unnamed landowner, not with the landowner.
There is no contract between the unnamed landowner and the alleged agent, authorising the agent to form a contract with an unregulated third party.

If such a contract or contracts existed, it would be reasonable to expect the claimant to show them. The fact that no such contract with or flowing from the landowner has been shown, it would be reasonable for the man on the Clapham omnibus to believe that they do not exist.

TiredJockey

Have compiled these useful points and served a supplementary WS to court and gladstones. Even if not accepted its a good set of notes on points to argue at the hearing. 

I was just on hold in the phone queue to the local court again while writing this, trying to find out again why they havent advised me how to join the hearing, checked my email and have just seen "due to a lack of judicial availability, its become necessary to adjorn the hearing.... court will notfiy you of a new date in due course." 

Wonder how that will affect the supplementary witness statement I just served, wont be last minute anymore. In any case thanks for all the effort, if theres anything else relevant to the defence would still be appreciated. 

nosferatu1001

It doesnt really matter what happens with it; you are perfectly able to talk about those points in the hearing, SWS or not. 

TiredJockey

Just had this letter through from Gladstones today along with a new order from the court informing of hearing date on the 14th via CVP.

As the claimant isn't in attendance should I resend my defence and witness statements to the court again? Bearing in mind I sent them to the court for the previous cancelled date.

Also any idea on how these normally go without claimant in attendance?