Questions about Schedule 4 of POFA

Coupon-mad

A witness statement deadline is never two days before the hearing, unless this is a short Directions Hearing?

ihatetrump

I didn't know much about Deeds but it did come back to me about the witness requirement from miscellaneous land dealings I've had in the past. That's why I researched & quoted:

1.      Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 states:

(3)An instrument is validly executed as a deed by an individual if, and only if—

(a)it is signed—

(i)by him in the presence of a witness who attests the signature; or

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b)it is delivered as a deed

The Lease does not bear the witness signatures required to be a deed.

ihatetrump

Thanks @Coupon-mad - earlier in my thread (back in April) i mentioned my confusion and frustration about lack of Court Directions concerning filing a WS and evidence.
  
On June 24th BWL dumped their WS and evdience bundle on me and on the Court. Then on June 26th I received 2 letters form the Court as follows:







The Second Letter (General Form of Judgement or Order) is very confusing to me:

1. It carries a date of June 25th, but then at the bottom is dated June 10??
2. 2ns sentence - It is not possible to list small claims for hearing in the normal way and yet last sentence of the letter - this is not a small claims trial - what is it then?

On the basis of BWL preparing their WS and evidence (including their use of the word nonsensical!), I've drafted my WS that I posted earlier today - which I need to clean up and amend after getting further feedback.

The whole process with the court seems such a mess and leaves me very confused.

Coupon-mad

So it is only a 30 minute Directions Hearing, not the actual hearing.

Directions Hearings are glorified Mediation, only sometimes worse because it's a Judge not a Mediator, and some of them have no experience of parking claims and many of them tell Defendants that they have a weak case and that they should settle now because the costs will be higher at the main hearing.

But occasionally a Directions Hearing is held by a Judge who DOES know the score, and dismisses the claim, like this one:

https://forums.moneysavingexpert.com/discussion/comment/78453187/#Comment_78453187

Expect to get a clueless Judge.  It'll only be half an hour of pseudo mediation - resist the suggestion to pay.

ihatetrump

Understood - comment from BWL in their letter was as follows:

".. our client will not be in attendance at the hearing and wish for the Court to decide the claim in their absence. Please note that our client will be represented by an advocate"

I wonder where that will leave things? An opportunity to kill them off maybe?

In the meantime, do I go ahead and file my WS (once I've had feedback and made changes) for the hearing?

Coupon-mad

No, they wil send a rep to the call (a hired gun). 

Of course you must comply with the Directions about what you must do, or you will lose due to failure to follow a Court Order.

ihatetrump

@Fruitcake said:

The surname of the person who signed the management agreement, Charles "somebody" has never been an officer of Milton Keynes Development Partnership LLP. This means the agreement fails the strict requirements of S44 of the Companies Act 2006, and part of S43 of the Act.
Milton Keynes Council are both a director of the above LLP as well as the landowner.
Therefore, in order for a Chief Exec (who you would think should be capable of printing their name and job position in the correct spot on such an important document) to have the authority to sign a contract with another party, they must have implied authority from Milton Keynes Council.
No such proof of implied authority has been provided. It is therefore reasonable to assume this person whose name is illegible, and who is not an officer of either the LLP or the landowner, did not have implied authority to sign a contract in accordance with Section 43 of the Companies Act 2006.

As for the redactions, this is probably reasonable where sensitive financial details are concerned. Other redactions would be unreasonable as determined by the appeal court case of Hancock vs Promontaria.

Have you checked to see if Advertising Consent has been obtained for signage at the site?
Not having it is a criminal offence, a breach of Para 12 of the PoFA, and a breach of the lease between the claimant and the landowner in your case.

What a can of worms (very tasty ones however.....) that you have opened!

The following link seems to illustrate that the Board of MKDP was probably not run as well as it should have been (and encompasses the period when the Napier contract was signed). The Chief Exec (Charles Macdonald is no longer there - went last December)

https://www.mkdp.org.uk/wp-content/uploads/2016/12/MKDP-Review-Report-Feb-2017.pdf

Thanks for your input and guidance - I'll press ahead with integrating this failure into my WS - from my accountancy study days, the words "ultra vires" come to mind................

I will also seek to push home the lack of Advertising Consent - not sure where in my WS I should include this?

Fruitcake

Make reference to lack of advertising consent just before or just after you address the inadequate signage points, as the one follows on from the other.

ihatetrump

Thanks for the valuable contributions so far.

My updated WS is at the following location:

https://www.dropbox.com/s/zl3apqref7h53fr/MSE WS v2 as pdf.pdf?dl=0

I need to deliver by 4pm Friday (tomorrow) so any further input/guidance would be appreciated - I know I do need to check and double check the page/paragraph numbering in the final version. 

Le_Kirk

Looks like a good WS.  Small point its' should be its.  You have four instances of this.