Urgent help needed - County Court Claim - First Parking / DCB Legal

AlwaysTrying23

Coupon-mad said:

Yes that works.

#9 misspelling: breech should be breach

#13 misspelling:  renumeration should be remuneration

#37 misspellings 'alegedy' and 'latter'.

Who do you mean by 'contractor' here, please explain to the Judge who that party is?

7. On returning to my vehicle, I noticed the PCN attached to the windscreen. I raised my concern to the contractor

And where you have transcripts, you shouldn't copy and paste them so they are not the original transcripts any more.  You've copied them and thrown out the original Auscript confirmation of authenticity so to me, this is no longer a true transcript.  Also, you've used a badly scanned version of Excel v Wilkinson which is blurry and fails to cover her first name.  The one in my Discussion thread is the better version, isn't it?

Wow, a late one I appreciate this so much!! I’ll amend the spelling. Contractor is an electrical company working at the uni. I’ll amend and use the company name. 

Regarding the transcripts, the Excel v Wilkinson was already present on the template I used. I’ll amend to your one. Regarding the rest, when I copy and paste, the layout is never pasted in the same format. Do you feel I should just screenshot each page and paste so it’s in its original format? Or is there a more efficient way you know of?

Coupon-mad

Merge the PDFs of all your exhibits is what I would do, then they keep their original formats.  Don’t forget to add page numbers after (I think you can do that after).

AlwaysTrying23

Coupon-mad said:

Merge the PDFs of all your exhibits is what I would do, then they keep their original formats.  Don’t forget to add page numbers after (I think you can do that after).

Will give a go thank you. 

The swines have finally sent their bundle over, link below. They really portray an arrogance, no wonder so may people pay up!

https://www.dropbox.com/s/nj07m97eo8zqken/Index%20Paginated%20Hearing%20Bundle%20%2850%20pages%29.pdf?dl=0

Anything out of the ordinary? 

Le_Kirk

Does it refer to a template defence?  What a surprise!  Makes no difference, judges have commented "so what" when told this by claimants.

Fruitcake

Further costs/damages are not mentioned in the service agreement.

The amounts of these alleged costs are not detailed on the signage, which is the point at which a contract is formed as determined in NCP vs HMRC.

The picture of the sign appears to have been damaged or defaced as some of the writing in the white section at the bottom appears to have been obliterated by a slightly diagonal slash.
The majority of the wording on the sign is illegible with tiny font. The parking attendant has conveniently provided photographic proof that the wording and the amount of the charge are not legible even at one car length.
A stock image of the sign has been included, but there is no proof that it is identical to the image of the damaged/distorted sign.
There is no evidence that there was a legible sign anywhere near the defendant's car.

There are no images of the side windows or views of the car taken from the side. This is a BPA CoP breach which (I think) requires a thorough search of the windscreen and windows.

The images of the car were all taken within two minutes, failing to allow the motorist to read the sign as and comply or leave, or to fetch a permit/

Parts of the contract have been redacted, including the names of the signatories. You should aver that this breaches the strict requirements of Section 43 and 44 of the Companies Act 2006 because you believe the signatories did not have the authority to sign the service agreement. Had they had the authority to sign a contract with another party, it is reasonable to assume on the balance of probabilities that their names would have been given.

The following is a standard comment I knocked up concerning contracts and the Companies Act.
S43 and 44 of the Act are very short so you read them in order to understand my interpretation of both sections. Adapt it as necessary to fit your case.

Companies Act 2006 (legislation.gov.uk) Section 43 

 

Companies Act 2006 (legislation.gov.uk) Section 44

 

For S43

 

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.

 

1 (a) Rarely used

1 (b) Express authority means a statement from a person such as the owner, a company director or company secretary, or someone with significant interest in the company, has the authority to form legally binding contracts with another party.

Implied authority would usually be found in the company’s Articles of Association or similar as held by Companies House stating that a person holding a specific title such as Regional Manger or Property Manager has authority, or a person specifically named by the owner, director, company secretary, or someone with significant interest in the company has authority.

 

 

For S44

 

44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company.

The alleged contract has not been executed in accordance with paragraph 1 because the neither party has affixed its common seal, it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

 

 

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

With regards to the redactions, I will send you a pm. Keep an eye on your Messages (envelope icon) box at the top of the page.

 

AlwaysTrying23

Wow. Thank you!! I will digest and apply! Will also keep an eye on that envelope. 

Fruitcake

You should also look at the thread by Johnersh where he refers to a court case about redactions being unacceptable at the disclosure (exhibit) stage.

Redactions in Disclosure — MoneySavingExpert Forum

Quote the Promontoria vs Hancock case. This was in the appeal court so it is persuasive on the lower courts.

Aver that the redactions include contract requirements that may favour you. For all you know there might be a clause stating that court claims must not be issued for a first "offence" 
Again, use an expression like, on the balance of probabilities it is reasonable to assume that the redactions have removed clauses that would favour the motorist, otherwise there is no reason for them to be hidden from the court.
You could also supplement this with the well know legal phrase, "the man on the Clapham omnibus" meaning it is what the average person in the street would believe..

Coupon-mad

The landowner agreement misses out whole pages as well as being heavily redacted, so there is nothing to make it in any way certain that loading and unloading results in a parking charge, it being completely different activity than 'parking'.  

Contractors and persons allowed in and given verbal permission to deliver to a contractor, should reasonably be exempt or allowed a fair grace period to carry out this brief activity at a large University site.  In particular, where verbal permission and access through a barrier is granted then that formed an 'alternative contract' and this the driver held permission and was entitled to rely upon that license or 'permit'. 

Ask the Judge on the day, to consider please Sir/madam, how do you or the court know to their satisfaction on this redacted evidence, that the missing pages and redacted clauses don't set out exemptions for unloading, or for working contractors' deliveries, or indeed a stated grace/observation period?

The agreement jumps from page 7 of 13 straight to 12 of 13, and yet there is no page 13 (the signature page being separate, after a blank gap, and it is questionable whether this is part of the same document, especially given the heavy redaction and missing pages).  Why would pages be withheld from court evidence when this document is key to the court making its decision?  The Court of Appeal has held that such redaction in a contract is not allowed (as per the advice above, add that transcript from Promontoria vs Hancock).

23 x.v.i says something that is NOT on the sign at all.  It quotes wording in inverted commas that Stacey Smith says is in the contract - but it isn't on the signs anywhere.  And there is no evidence of any payment being made to any debt recovery agent, and they operate on a no-win-no-fee basis for this industry so those costs are certainly double recovery (doubling £60 to £120 without any reasonable or lawful justification and in breach of the POFA which only allows the unpaid parking charge to be recoverable, as happened in the Beavis case).  The earlier ParkingEye v Somerfield case had already exposed that to add an extra £60 for 'admin/recovery' was a penalty and not recoverable, according to the High Court and confirmed by the Court of Appeal.

Attach a link to the IPC Conference Exhibitors 2021 (Google it, find it, screenshot it) where both DRP and Trace Debt Recovery both openly advertise that they operate on a no-win-no-fee basis.  That shows how the members of both Trade Bodies work between them to enhance parking charges and in this case it's been doubled.  Surely this is wholly unreasonable conduct, knowing as the Claimant does that they've never paid any sum to any debt recovery firm.  The parking charge was £60 and cannot be artificially and falsely inflated to make it worth pursuing in court.  This is what the small claims costs rules prevent.

Rebut Chaplair v Kumari, by saying that is completely different because the hearing pre-dated the CRA 2015 which you are relying upon and that statute is far more robust than its predecessor,  the UTCCRs in that it adds a requirement for 'prominence' of consumer notices (signs) and bans clauses that have the object or effect of claiming 'costs on the indemnity basis',   Also Chaplair v Kumari was about prior, agreed and individually negotiated terms in a signed lease, which has no application to 'take it or leave it' terms buried in small print on a dense text, blue sign that couldn't override the verbal permission and access granted that day in your case.

I suspect your WS already rebuts the useless Britannia v Semark-Jullien damp squib of a decision by a Circuit Judge who had no idea that the Claimant's claim wasn't a one-off and therefore overlooked the fact that parking firms are being told literally every week, up and down the country, that they cannot add false costs that were never incurred.

Fruitcake

Without going back to check, do you have the (Laura) Jopson vs Homeghuard (Services) case where the judge stated that loading/unloading is not parking in your WS?
This was also an appeal court case so is persuasive on the lower courts.

The transcript is available online, and the relevant parts are around paragraph 19 - 20.

Fruitcake

Ha, I didn't even look at the page numbers.

Pages 3 and 4 (of 13) are also missing from the claimant's WS.

The man on the Clapham omnibus would assume that on the balance of probabilities, there are legally binding terms and conditions of the contract that have been deliberately withheld from the court, that favour the motorist.
The claimant is put to strict proof that the contrary applies.