Horizon Parking / Gladstones Claim - Help with Witness Statement

Fruitcake

With regards to the redactions, have a look at this thread that refers to an Appeal Court case, where the judge effectively said that redactions in disclosure (such as their WS and exhibits/evidence) are unacceptable. Being heard in the Appeal Court means the judge's findings are persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

It's a very poor quality document, but the scammers have missed a few bits from their attempts to redact. Whilst the landowner's identity has been well hidden, the agent acting for the landowner is Workman LLP, one we have come across here before. 

The Ts and Cs hurt my eyes to read, but I can't see any specific mention in there or in the main part of the contract about court claims.
I suggest you state that since court proceedings are not included in the contract, the scammers have no standing to do so.

I'll cover the contract signature failures in a separate post.

Fruitcake

The contract is between Horizon Parking and Workman LLP who are purported to be an agent of the landowner.
The identity of the landowner has deliberately been redacted. If Workman LLP truly was an agent of the landowner, there would be no reason to hide the landowner's details.
There is no contract between the unidentified landowner and their alleged agent, Workman LLP.

It is reasonable to assume that since no contract with or flowing from the unidentified landowner and the claimant has been produced, The Man on the Clapham Omnibus would believe that no such contract exists, or there is no proof that the landowner is even aware that a parking contract exists.

The contract has not been signed in accordance with the strict requirements of Sections 43 and 44 of the Companies Act 2006.

Section 43 of the above Act.

Companies Act 2006 (legislation.gov.uk)

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.

Since the signatories have been redacted, there is no proof that either person has express or implied authority to sign a contract on behalf of their employer, and certainly not on behalf of the landowner, in accordance with the above Act.

It is reasonable to assume that any formalities required by law would include the authority to form a contract with another party.

Section 44 of the above Act.

Companies Act 2006 (legislation.gov.uk)

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 contract has not been validly executed in accordance with the above Act because: -

(1) 

(a) The document has not been signed under either company's common seal.

(b) Since both signatures have been redacted, there is no proof that either person is authorised to sign on behalf of their respective employers, and certainly not on behalf of the landowner.

(2) 

(a) The document has not been signed by two authorised signatories from each company

(b) The document has not been signed by a director and a witness to the signature from each company

(3) (a) and (3) (b)

Since both signatures have been redacted, there is no proof that either one is a company director or company secretary.

Consequently the document has failed to form a simple contract, or be a validly executed document in accordance with either Sections 43 and 44 of the above Act.

Coupon-mad

Look at any witness statement for a Horizon case or any witness statement about a Notice to Hirer and adapt it tonight, and show us. The D will need to be referring to the POFA and showing that hirer liability was not met and appending any evidence they have that they were not driving. 

They need to understand the POFA Sch 4 to explain to a Judge how the requirements Hirer Liability were not met, because Judges are not familiar with the POFA.

rickw1986

Okay so here's the WS. Note that I've put this together for the defendant (I'm his partner), and I'll be asking to be his lay representative if this comes to court.
hxxps://www.dropbox.com/s/l4ldwov6ntrtrva/Draft%20WS%20Redacted.pdf?dl=0

Fruitcake

https://www.dropbox.com/s/l4ldwov6ntrtrva/Draft%20WS%20Redacted.pdf?dl=0

Fruitcake

I've only had a brief look, and I think you have covered the main points. I would add the comment about the scammer's statement of truth not complying with the CPR because a company is incapable of believing anything, and this appears to be an attempt to mislead the court.

Have crib notes ready to hand with reference numbers to both your and their evidence/WS so you can note anything the scanner's rep or judge says and have your comments ready. For example, your comments about their para 24, Elliot vs Loake, or be ready to expand on your comments about the signature failures of the contract with regards to the Companies Act 2006.

I wonder if a summary paragraph just before your statement of truth might help, summing up the PoFA compliance failures, contract failures, signage failures etcetera. Just a brief list really why you believe you cannot be held liable.

Fruitcake

I can't see a boundary or anything showing the area they are allegedly contracted to scam. There is no map or description in the alleged contract, and nothing in the map or aerial photos to this effect. In other words they have shown where the car was allegedly parked, but have not proved they are authorised or contracted to issue scamvoices for that specific location

Fruitcake

Print of or have to hand a copy of the Lay Reps right of audience in case you are queried about this at the hearing.

The Lay Representatives (Rights of Audience) Order 1999 (legislation.gov.uk)

rickw1986

Thanks for all your help on this

Coupon-mad

At #6 add the words:
... purported - but non-POFA compliant - 'Notice to hirer'.  This was a hybrid document that was incapable of actually holding a hirer liable, just as their Notice to Keeper before that was uncapable of holding the registered keeper company liable.  This Claimant does not use the POFA 2012 so has no cause of action against a registered keeper or a hirer, at all.

Remove #15. You can't talk about mediation!!

#16 onwards about the failure to use the POFA 2012 is so important why is it not higher up?  I'd be putting it around para #7 onwards!  That IS your main defence in the first instance - lack of lawful liability, as long as you are confident you understand what Horizon did wrong.  By the way, the NTK to the registered keeper lease firm will have been non-POFA as well because Horizon choose not to use that law, at all.

Drop Britannia v Crosby and replace with Excel v Wilkinson and update your witness statement ending because that is really old.  Have a look at the one shown by @Nosy which I think mentions Excel v Wilkinson.  The transcript you need to exhibit instead of Britannia v Crosby is here:

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

Show us the next draft once you've removed all the really old stuff from around para 20 onwards.  That is not the latest version of a WS.