Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

B789 said:

milkybk said:
I'm going to mail a recorded signed for copy too.

What if the person who "signs" for it just puts an illegible scribble and then dumps your package in a bin somewhere?

Recorded delivery is no guarantee that it will ever get to who it's supposed to. You may as well save yourself the extra expense and just do as everyone here is advised and go to a post office and get a free "proof or posting" cert.

At least then you have proof that you posted something to the court and it is up to them to prove you didn't. Who has the evidence?

Then again, either way does not prove that you actually sent what you claim you sent if they can't find it.

Yeah, it's odd isn't it, especially for legal documents! You would think it would be a very rigid process. I'll post anyway, then on Monday ring the senior clerk/Team Leader guy and ask him to confirm they're received both electronic and hard copies. Thankfully plenty of time before trial, whereas the set aside was a bit more rushed (shorter time scale). Thanks.

Probably best I just focus on having arguments ready for all the Claimant's WS points etc. 

Snakes_Belly

Umkomaas said:

There is no evidence of a contract with or flowing from the landowner, merely a statement from an Excel employee saying that, honest guv, there was a contract in place at the material time. The claimant has failed to provide any proof that the landowner has authorised Excel to issue parking charges nor issue court claims.

Occasionally we see landowner 'contracts' signed by 'Alun Cockcroft' of Excel.  These seem to be suggesting that Excel are leaseholders of the land. Excel are known to be more involved than most PPCs in acquiring car parks on a leasehold basis. I'd be a little cautious in suggesting otherwise in this case. Stronger points to chase. 

If Excel own the land or are leaseholders they should be paying business rates. You may be able to check this. 

Took a look at the car park and I doubt that it is owned by Excel as it is above shops. Could be leased. Signage is poor on entrance. 

Snakes_Belly

https://www.google.com/maps/place/Eurospar/@53.3778054,-1.5018755,3a,75y,171.35h,77.74t/data=!3m7!1e1!3m5!1s4sES7cGANB9n6lWSu64SMQ!2e0!5s20170701T000000!7i13312!8i6656!4m14!1m7!3m6!1s0x487983e1b8593ff7:0xd8500c0d74952807!2sBroomhill+rooftop+car+park!8m2!3d53.3776982!4d-1.5018221!16s/g/11js8pgg8n!3m5!1s0x4879826d2f58003f:0x9c26bfb02e4224e5!8m2!3d53.3773396!4d-1.5019522!16s/g/1tdjwjn6

Image from 2017. 

I have not read all the thread and I am unsure what the actual transgression is. The signage at the entrance (where the contract is formed) does not indicate that it is a pay car park unless the large P in car Park is a clue.  I cannot see from that signage on entry how a contract could have been formed.   

milkybk

Snakes_Belly said:

https://www.google.com/maps/place/Eurospar/@53.3778054,-1.5018755,3a,75y,171.35h,77.74t/data=!3m7!1e1!3m5!1s4sES7cGANB9n6lWSu64SMQ!2e0!5s20170701T000000!7i13312!8i6656!4m14!1m7!3m6!1s0x487983e1b8593ff7:0xd8500c0d74952807!2sBroomhill+rooftop+car+park!8m2!3d53.3776982!4d-1.5018221!16s/g/11js8pgg8n!3m5!1s0x4879826d2f58003f:0x9c26bfb02e4224e5!8m2!3d53.3773396!4d-1.5019522!16s/g/1tdjwjn6

Image from 2017. 

I have not read all the thread and I am unsure what the actual transgression is. The signage at the entrance (where the contract is formed) does not indicate that it is a pay car park unless the large P in car Park is a clue.  I cannot see from that signage on entry how a contract could have been formed.   

Hi - Yes, that image you sent is the same as the sign looked when my alleged event occurred (Jan 2017), it's also the same it looks now, just more faded. The main terms are "hidden" on this wall:



So as you turn in as a RH car driver, your lights only illuminate the main sign you highlighted, you never see the sign on the LH side and it has no illumination etc on it. Here's one from my WS showing it at night (and one with flash showing terms I changed this for my submission, this was from a draft):


And here's a video from a drivers perspective driving into the car park at night - link

milkybk

Snakes_Belly said:

Umkomaas said:

There is no evidence of a contract with or flowing from the landowner, merely a statement from an Excel employee saying that, honest guv, there was a contract in place at the material time. The claimant has failed to provide any proof that the landowner has authorised Excel to issue parking charges nor issue court claims.

Occasionally we see landowner 'contracts' signed by 'Alun Cockcroft' of Excel.  These seem to be suggesting that Excel are leaseholders of the land. Excel are known to be more involved than most PPCs in acquiring car parks on a leasehold basis. I'd be a little cautious in suggesting otherwise in this case. Stronger points to chase. 

If Excel own the land or are leaseholders they should be paying business rates. You may be able to check this. 

Took a look at the car park and I doubt that it is owned by Excel as it is above shops. Could be leased. Signage is poor on entrance. 

In terms of this, this is the only thing in the WS from the Claimant:

B789

I wouldn't call that "strict proof" that the claimant has a contract. They have been put to strict proof that item 5 in that letter is more than a figment of someone's imagination?

milkybk

B789 said:

I wouldn't call that "strict proof" that the claimant has a contract. They have been put to strict proof that item 5 in that letter is more than a figment of someone's imagination?

Interesting, I'm noting down everything people mention and looking into it further. Then making notes to refer to during the hearing. I honestly think Excel will mess this up themselves pretty quickly (if they don't discontinue and turn up) but I would still rather be prepared.

Fruitcake

If Excel is/was the leaseholder, then there is no reason not to show the lease signed by both parties. Indeed, there is no reason not to name the landowner from whom the site is leased.
The fact that they have not shown it makes me believe that either it does not exist, or does not permit Excel to issue court claims. I suggest "the man on the Clapham omnibus" would believe on the balance of probabilities that this is the case, so the claimant should be put to strict proof that the contrary is true.

The Leaseholder Witness Statement fails to comply with the strict requirements of Sections 43 and 44 of the Companies Act 2006.
S 43 covers the requirements for a simple contract to be formed. The LWS fails this because it has not been signed by both parties.

S 44 covers the requirements for execution of documents. The LWS fails this because it has not been signed by two authorised persons from each party.

Both sections are short and worth reading. I can post more detailed information about my interpretation of the Act if you wish. You don't need to add them as an exhibit since they are acts of parliament to which the judge will have access at the hearing, but you do need to mention them in your WS if you want to use the Act in your defence.

milkybk

Fruitcake said:

If Excel is/was the leaseholder, then there is no reason not to show the lease signed by both parties. Indeed, there is no reason not to name the landowner from whom the site is leased.
The fact that they have not shown it makes me believe that either it does not exist, or does not permit Excel to issue court claims. I suggest "the man on the Clapham omnibus" would believe on the balance of probabilities that this is the case, so the claimant should be put to strict proof that the contrary is true.

The Leaseholder Witness Statement fails to comply with the strict requirements of Sections 43 and 44 of the Companies Act 2006.
S 43 covers the requirements for a simple contract to be formed. The LWS fails this because it has not been signed by both parties.

S 44 covers the requirements for execution of documents. The LWS fails this because it has not been signed by two authorised persons from each party.

Both sections are short and worth reading. I can post more detailed information about my interpretation of the Act if you wish. You don't need to add them as an exhibit since they are acts of parliament to which the judge will have access at the hearing, but you do need to mention them in your WS if you want to use the Act in your defence.

Sure, thank you! I'm willing to have a look through anything that people suggest could be helpful. I don't have any more info in terms of documents from Excel though, everything has been posted in the 3 links (the one I updated this morning with the NTK etc).

Fruitcake

This is what I knocked up for another poster. It is my interpretation of what the CA 2006 means and can easily be modified to suit your case. 

Companies Act 2006

 

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, who 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 Manager 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 landowner signatories as defined in paragraph 3.

I would then expand on my previous comments: -

"If Excel is/was the leaseholder, then there is no reason not to show the lease signed by both parties. Indeed, there is no reason not to name the landowner from whom the site is leased.
The fact that they have not shown it makes me believe that either it does not exist, or does not permit Excel to issue court claims. I suggest "the man on the Clapham omnibus" would believe on the balance of probabilities that this is the case, so the claimant should be put to strict proof that the contrary is true."

If you are not already aware, "the man on the Clapham omnibus" is a term used by legal professionals and judges to indicate the average person or, the (wo)man in the street.