Submitted Witness Statement and and Draft Order by Email - Judge Unwilling to Strike Out

Fruitcake

This thread covers five pages, but only the first is relevant to the OP's case. 

Might I respectfully suggest that posters concentrate on helping the OP directly rather than disagreeing with one particular poster?

Fruitcake

The scammers state by their own admission that they left a notice to driver on the vehicle, and then applied to get the keeper's data from the DVLA before 28 days meaning that the NTK failed the requirements of the PoFA 2012 para 8, meaning the keeper cannot be held liable.
(It's a minor point, but still worth mentioning)

The claimant has not provided a copy of the contract from or flowing from the landowner to the alleged lessor or landholder/occupier, only a "Contract Statement of Authority" from someone who is no longer a director or company secretary of DT Civils.

The contract statement has not been signed by any employee of the claimant's company, so there is no proof a contract ever existed between them and the landowner, nor the alleged landholder/occupier.

The contract statement fails to comply with the requirements of the Companies Act 2006, Sections 43 and 44, because the claimant is not a party to the contract, merely a company referred to by another party.

From section 43 of the above Act

43     Company contracts U.K.

(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 claimant has not provided a document written under its common seal, nor provided a document showing any person has acted under its authority.

The contract statement is not an executable document because it has not been executed in accordance with section 44 of the above Act that requires two authorised signatories from each party to sign said document

The claimant has therefore failed to prove that it held a valid contract with the landowner or a lawful landholder/occupier.

In addition, the contract statement does not authorise the claimant to issue court proceedings.

In the absence of a valid contract, the claimant has failed to prove they sufficient standing or authority from or flowing from the landowner to instigate court proceedings.

A reputable company would obtain and retain proof that it had a contract to operate in a certain manner. Since the claimant has failed to produce such proof, on the balance of probabilities, the defendant avers that the claimant had no such standing at the time of the alleged event.

The signage is inadequate. There are no entrance signs warning motorists that payment is required to park. It is quite possible for a motorist to enter the car park with the entrance on their left, in the dark, and not see the single unlit sign and leave on foot.

All the parking attendant's photos are blurred, and taken using flash. The claimant has not provided any photos showing what the site would look like without artificial light, at night time; in other words, the conditions a motorist would actually have experienced.

In the photos, there is a white rectangle in the bottom left of the image of the front windscreen. The claimant has not provided a close up to show that it is not a parking ticket.

The photo of the front passenger window seems to show several white rectangles, but again the claimant has failed to show a closeup proving that these are not parking tickets and that none of them are valid.

Even if there ever was a contract, the claimant has provided no proof that it was still active at the time of the alleged event. The contract statement merely mentions the possible existence of an undisclosed contract and a date when the statement was signed, not when such a contract might have come in to force, for how long it was authorised to run, had a specific end date, whether it would automatically renew or any other information required to prove it was in force on the date of the alleged event.

simplegeeza

Fruitcake said:

The scammers state by their own admission that they left a notice to driver on the vehicle, and then applied to get the keeper's data from the DVLA before 28 days meaning that the NTK failed the requirements of the PoFA 2012 para 8, meaning the keeper cannot be held liable.
(It's a minor point, but still worth mentioning)

The claimant has not provided a copy of the contract from or flowing from the landowner to the alleged lessor or landholder/occupier, only a "Contract Statement of Authority" from someone who is no longer a director or company secretary of DT Civils.

The contract statement has not been signed by any employee of the claimant's company, so there is no proof a contract ever existed between them and the landowner, nor the alleged landholder/occupier.

The contract statement fails to comply with the requirements of the Companies Act 2006, Sections 43 and 44, because the claimant is not a party to the contract, merely a company referred to by another party.

From section 43 of the above Act

43     Company contracts U.K.

(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 claimant has not provided a document written under its common seal, nor provided a document showing any person has acted under its authority.

The contract statement is not an executable document because it has not been executed in accordance with section 44 of the above Act that requires two authorised signatories from each party to sign said document

The claimant has therefore failed to prove that it held a valid contract with the landowner or a lawful landholder/occupier.

In addition, the contract statement does not authorise the claimant to issue court proceedings.

In the absence of a valid contract, the claimant has failed to prove they sufficient standing or authority from or flowing from the landowner to instigate court proceedings.

A reputable company would obtain and retain proof that it had a contract to operate in a certain manner. Since the claimant has failed to produce such proof, on the balance of probabilities, the defendant avers that the claimant had no such standing at the time of the alleged event.

The signage is inadequate. There are no entrance signs warning motorists that payment is required to park. It is quite possible for a motorist to enter the car park with the entrance on their left, in the dark, and not see the single unlit sign and leave on foot.

All the parking attendant's photos are blurred, and taken using flash. The claimant has not provided any photos showing what the site would look like without artificial light, at night time; in other words, the conditions a motorist would actually have experienced.

In the photos, there is a white rectangle in the bottom left of the image of the front windscreen. The claimant has not provided a close up to show that it is not a parking ticket.

The photo of the front passenger window seems to show several white rectangles, but again the claimant has failed to show a closeup proving that these are not parking tickets and that none of them are valid.

Even if there ever was a contract, the claimant has provided no proof that it was still active at the time of the alleged event. The contract statement merely mentions the possible existence of an undisclosed contract and a date when the statement was signed, not when such a contract might have come in to force, for how long it was authorised to run, had a specific end date, whether it would automatically renew or any other information required to prove it was in force on the date of the alleged event.

Fruitcake, thanks so much for this, you are a legend - so helpful! Sorry I haven't had the time to log in for a while. It's interesting what you say about the rectangle in the bottom left of the screen, as I am convinced this is a ticket as my car has a little clip in that area that I ALWAYS use for my pay and display tickets (assuming I was driving that day - no idea where my partner would put their). Agree with what you say with regard to landowner contract. In my crib sheet I am also going to put something in about no mention of the SA1 - C3 car park specifically. There are a couple of car parks in very close proximity in this area by the looks of it - that landowner contract certainly does not cover all of them - or any of them based on your observations regarding its illegitimacy! I am a little nervous now getting closer to my jan 12th hearing date, but I will make a crib sheet when I get a few days off over christmas and post for you guys! 

simplegeeza

Does anybody know any good reason why the judge in my case may be denying my right to lay representation by my partner? I have very politely asked him to reconsider highlighting the practice direction 27.3. It can’t be possible that judges aren’t aware of this, surely? What’s the reasoning behind them being so apprehensive in allowing this - I have see a few threads where this has happened. So long as it is not an appeal, and I am in attendance I can’t see a valid reason for refusal.

Umkomaas

You've listed the same question on somebody else's thread - which I have answered (so read it there, but don't comment on it). Please keep all queries on your own thread, as otherwise the other thread will quickly run off track. 

simplegeeza

Umkomaas said:

You've listed the same question on somebody else's thread - which I have answered (so read it there, but don't comment on it). Please keep all queries on your own thread, as otherwise the other thread will quickly run off track. 

Thank you, sorry didn’t realise!

Le_Kirk

Does seem a little strange when it is your right.  Even @Coupon-mad has come across this in her court appearances but, I believe, overcome it every time.  Why are you asking before the court appearance?  Is it because it is not a F2F hearing?  It's even weirder when you consider that the claimant can be represented by legal personages.

simplegeeza

Le_Kirk said:

Why are you asking before the court appearance?  Is it because it is not a F2F hearing?  It's even weirder when you consider that the claimant can be represented by legal personages.

Yes that’s right it’s a “Cloud Video Platform (CVP)” hearing. I would also like it sorted ahead of time if I can as English isn’t my first language and I am really nervous about orchestrating my points concisely under pressure. I write really well (I think) but sometimes under pressure I mix up words and then get flustered and basically become mute! I thought if I could sort this now it would help me sleep a little easier - also my partner has a bachelors in law, although she doesn’t practice law now, so she said she’d speak for me if I’d like.

Coupon-mad

She can speak for you (as long as you attend as well) and there is no need to ask for permission.  But I too have been told that (wrongly) at Brighton court, because some staff there wrongly think you need permission. 

TBH if you are both at home, both sit there for the video hearing together, say good morning to the Judge and politely explain that you are relying upon CPR 27 3.2   as well as the Lay Representatives (Right of Audience) Order 1999 and wish for your lay representative to exercise her rights of audience, not least because English is not your first language but also because the CPRs say this is a right.  Make it clear that you understand this will mean you can't speak unless cross examined.

3.2

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

(c) on any appeal brought against any decision made by the district judge in the proceedings.

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

simplegeeza

Thanks @Coupon-mad I will do exactly that because as you say, that seems very black and white to me that it is my right!