POFA '12 not valid?

Lockable

Fruitcake said:

If this is where you live, then redacting the site details is a good idea. If not, we need to know where it is.

We also needed you to confirm that the scammers redacted the name and signature of the person who allegedly signed the contract, not you.

The contract appears to be with Elwood and Co, but the person who signed the contract has not been named, and their position within the company has not been stated.

Do you know if Elwood and Co are the owners, or a managing agent?

I see. So, no. I didn't redact the name & signature.

It is Elwood & Co. and they are the managing agent I think.

I don't live there & it's Kingston Court, Oxford. OX2 6ES

Fruitcake

Good. There are lots of things wrong with that contract. I'll be back shortly with more info, but it will help you if you have a look at Sections 43 and 44 of the Companies Act 2006. They are both very short, but you need to be able to understand what they mean with regards to a contract.

Fruitcake

Have a look at the Redactions in Disclosure thread by Johnersh, and quote the case, case number, and judge's finding in Hancock vs Promontoria. Note that this was heard in the Court of Appeal, so is persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

See paras 74 & 75 of that case.

"...The document must in all normal circumstances be placed before the court as a whole...

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision..."

Whilst redacting the amount paid to or by a client would probably be acceptable, hiding the identity of the signatories to a contract is not.

According to Section 43 of the Companies Act 2006, a Simple Contract as defined by the Act must be signed by someone from each party having express or implied authority.
Express authority would be the owner(s), or an officer of the company such as a director, company secretary, or a person with significant interest in the company, or someone expressly named by the above.
Implied authority would be a position within the company named by the owner(s), or named by an officer of the company, or the named position would be included in the company's articles of association.

The client's signature is illegible and neither their name nor position within their company has been given. There is no proof that the person who signed on behalf of the client has ever been an officer of the Client, Elwood and Co. It is averred that she/he has neither express nor implied authority to form a contract on behalf of the Client with a third party.
The signature is not dated, so there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.

The claimant's name, signature, position within their company has either been redacted, or the contract was never signed. It is averred that neither express nor implied authority to form a contract with the client has been given on behalf of the claimant company.
The signature is not dated, therefore there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.
In addition to there being no name or signature, there is no date and therefore there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.

In addition, the document has not been validly executed in accordance with Section 44 of the Companies Act 2006 because it has not been signed by two authorised persons from each party. The Act defines authorised persons as a director or company secretary.

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

My case is identical. The unidentified person who signed the contract could not have signed it on behalf of the owner because they are not a director of the owner.

Elwood and Co are not the landowners. No contract has been provided with, or flowing from the landowner via Elwood and Co. The claimant is put to strict proof that they had authority from, or flowing from the landowner to carry out car park management at the specified location.

The contract refers to Fines. A private company cannot issue fines to another individual.


The signs show that the claimant was a member of the International Parking Community at the time of the alleged event. The wording of the Notice to Keeper states, "We are an accredited operator and member of the International Parking Community ... and operates within their code of practice."
This is contradicted by the contract that states at 1.3, "The Company is a member of the British Parking Association and operates within the terms and the code of that association."


The site plan does not define the boundary of the managed area, so the claimant has failed to prove where they are allegedly contracted to operate.

The claimant has failed to show images of where the car was parked within the undefined car park boundary. The images were taken with the aid of flash. The claimant has not shown images taken at the time of the alleged event that prove the signage could have been seen in darkness.

The images of the car are not time or dated stamped, therefore there is no proof that the images were taken at the time of the alleged event.

The images of the signs are not time or dated stamped, therefore there is no proof that the signs were in place at the time of the alleged event.

The date at the beginning of the contract is the 1st of April 2010, and is stated that it shall remain in force for one year, and then continue until terminated by the client.
There is no proof that the contract was still in force over five years later at the time of the alleged event. The claimant is put to strict proof that the contract had not been terminated.

Lockable

Fruitcake said:

Have a look at the Redactions in Disclosure thread by Johnersh, and quote the case, case number, and judge's finding in Hancock vs Promontoria. Note that this was heard in the Court of Appeal, so is persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

See paras 74 & 75 of that case.

"...The document must in all normal circumstances be placed before the court as a whole...

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision..."

Whilst redacting the amount paid to or by a client would probably be acceptable, hiding the identity of the signatories to a contract is not.

According to Section 43 of the Companies Act 2006, a Simple Contract as defined by the Act must be signed by someone from each party having express or implied authority.
Express authority would be the owner(s), or an officer of the company such as a director, company secretary, or a person with significant interest in the company, or someone expressly named by the above.
Implied authority would be a position within the company named by the owner(s), or named by an officer of the company, or the named position would be included in the company's articles of association.

The client's signature is illegible and neither their name nor position within their company has been given. There is no proof that the person who signed on behalf of the client has ever been an officer of the Client, Elwood and Co. It is averred that she/he has neither express nor implied authority to form a contract on behalf of the Client with a third party.
The signature is not dated, so there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.

The claimant's name, signature, position within their company has either been redacted, or the contract was never signed. It is averred that neither express nor implied authority to form a contract with the client has been given on behalf of the claimant company.
The signature is not dated, therefore there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.
In addition to there being no name or signature, there is no date and therefore there is no proof the contract was in force at the time of the alleged event, or indeed, was ever in force.

In addition, the document has not been validly executed in accordance with Section 44 of the Companies Act 2006 because it has not been signed by two authorised persons from each party. The Act defines authorised persons as a director or company secretary.

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

My case is identical. The unidentified person who signed the contract could not have signed it on behalf of the owner because they are not a director of the owner.

Elwood and Co are not the landowners. No contract has been provided with, or flowing from the landowner via Elwood and Co. The claimant is put to strict proof that they had authority from, or flowing from the landowner to carry out car park management at the specified location.

The contract refers to Fines. A private company cannot issue fines to another individual.


The signs show that the claimant was a member of the International Parking Community at the time of the alleged event. The wording of the Notice to Keeper states, "We are an accredited operator and member of the International Parking Community ... and operates within their code of practice."
This is contradicted by the contract that states at 1.3, "The Company is a member of the British Parking Association and operates within the terms and the code of that association."


The site plan does not define the boundary of the managed area, so the claimant has failed to prove where they are allegedly contracted to operate.

The claimant has failed to show images of where the car was parked within the undefined car park boundary. The images were taken with the aid of flash. The claimant has not shown images taken at the time of the alleged event that prove the signage could have been seen in darkness.

The images of the car are not time or dated stamped, therefore there is no proof that the images were taken at the time of the alleged event.

The images of the signs are not time or dated stamped, therefore there is no proof that the signs were in place at the time of the alleged event.

The date at the beginning of the contract is the 1st of April 2010, and is stated that it shall remain in force for one year, and then continue until terminated by the client.
There is no proof that the contract was still in force over five years later at the time of the alleged event. The claimant is put to strict proof that the contract had not been terminated.

Thank you very much for this, it's very valuable.


Do you or does anyone here have specific knowledge regarding the DVLA request & how legitimate it is to make the request a full 4 months after the incident?
Do the time limits in POFA make doing this so late an issue for data protection & is this a strong line worth pursuing? 

Umkomaas

The PPC's KADOE contract with the DVLA allows them 6 months in which to access the data. They then have a further month in which to serve their NtK. 

Lockable

Umkomaas said:

The PPC's KADOE contract with the DVLA allows them 6 months in which to access the data. They then have a further month in which to serve their NtK. 

Does this not counter the provision of 56 days to serve the NTK within POFA '12?

Umkomaas

Lockable said:

Umkomaas said:

The PPC's KADOE contract with the DVLA allows them 6 months in which to access the data. They then have a further month in which to serve their NtK. 

Does this not counter the provision of 56 days to serve the NTK within POFA '12?

The parking firm only has to adhere to the PoFA timescales if they wish to pursue 'keeper liability' under the Act.  Otherwise, the should only be pursuing the driver. 

Lockable

Umkomaas said:

Lockable said:

Umkomaas said:

The PPC's KADOE contract with the DVLA allows them 6 months in which to access the data. They then have a further month in which to serve their NtK. 

Does this not counter the provision of 56 days to serve the NTK within POFA '12?

The parking firm only has to adhere to the PoFA timescales if they wish to pursue 'keeper liability' under the Act.  Otherwise, the should only be pursuing the driver. 

In my case they are assuming the defendant, driver & keeper are the same person judging by the wording of the particulars, they have no reason to make this assumption.
The particulars claim that as the 'defendant' didn't make the claimant aware of an alternative address for an alternative driver they can use POFA to pursue the keeper.
Am I right in thinking they can't invoke POFA if the NTK arrives very late?

Umkomaas

Am I right in thinking they can't invoke POFA if the NTK arrives very late?

You are right. You will need your head around PoFA to explain to the Judge should he/she not be au fait with the Act. But it's standard fare for unregulated PPCs to pump out any tosh they think they can get away with either by pressurising the defendant into caving and paying, or by hoping a Judge doesn't rumble them. It's a free shot for them because there has never been sanctions. 

They will also plead that they are pursuing you on the 'assumption that the keeper was also the driver, on the balance of probabilities', they will also quote Eliott v Loake (a criminal case which has no applicability in a civil case), which has been rejected by Judges up and down the country, but still they try in order to pressurise a naive keeper into paying, or hoodwinking an ill-informed, freshly spanked and brandied-up Judge!  They have little shame. 

But you need to see the bigger picture here in the context of PoFA. The Act only gives protection to the keeper if they were provably not the driver. If that isn't the case, you might get away with it if you stay schtum and hope the Judge will assume you weren't the driver and work within the letter of the law relevant to a keeper only, but he might want clarification before making that decision, and ask you the question, 'Mr Lockable, were you or were you not the driver on the day in question?', so you need to have prepared your ducks and got them in a straight line well in advance. 

Lockable

Umkomaas said:

Am I right in thinking they can't invoke POFA if the NTK arrives very late?

You are right. You will need your head around PoFA to explain to the Judge should he/she not be au fait with the Act. But it's standard fare for unregulated PPCs to pump out any tosh they think they can get away with either by pressurising the defendant into caving and paying, or by hoping a Judge doesn't rumble them. It's a free shot for them because there has never been sanctions. 

They will also plead that they are pursuing you on the 'assumption that the keeper was also the driver, on the balance of probabilities', they will also quote Eliott v Loake (a criminal case which has no applicability in a civil case), which has been rejected by Judges up and down the country, but still they try in order to pressurise a naive keeper into paying, or hoodwinking an ill-informed, freshly spanked and brandied-up Judge!  They have little shame. 

But you need to see the bigger picture here in the context of PoFA. The Act only gives protection to the keeper if they were provably not the driver. If that isn't the case, you might get away with it if you stay schtum and hope the Judge will assume you weren't the driver and work within the letter of the law relevant to a keeper only, but he might want clarification before making that decision, and ask you the question, 'Mr Lockable, were you or were you not the driver on the day in question?', so you need to have prepared your ducks and got them in a straight line well in advance. 

Solid advice, many thanks. 
Can I also invoke abuse of process as per Excel v Wilkinson? It seems to me there are strong similarities in the arbitrary  amounts sought & methods of extraction used.

Another question. They have been allowed to re-submit their PoC after incompetence & not complying with a court order, does this mean I will have a similar right to resubmit a defence to these particulars?