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

B789

Maybe a supplementary WS with the above or is it worth a sabotage attempt in front of the judge?

Fruitcake

B789 said:

Maybe a supplementary WS with the above or is it worth a sabotage attempt in front of the judge?

You cannot introduce new evidence at the hearing. You can rebut anything stated during the hearing or included in the claimant's claim and WS.

milkybk

Fruitcake said:

B789 said:

Maybe a supplementary WS with the above or is it worth a sabotage attempt in front of the judge?

You cannot introduce new evidence at the hearing. You can rebut anything stated during the hearing or included in the claimant's claim and WS.

You can send in supplementary WS's before the trial though I think can't you? I'm pretty sure I did that in the Set Aside hearing as a few more bits and pieces came out leading up to the trial (as long as the info is sent to the Claimant and the Court).

milkybk

Fruitcake said:

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.

Thanks for this, much appreciated.

Will take a more detailed look at it this evening after work and make some notes etc.

MysticDad

milkybk said:

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.

In my recent win against Excel, the Directions following Set Aside required that they provide evidence that they were authorised to conduct parking operations on the site.  Excel provided a similar 'Leaseholder witness statement'.  The judge agreed with me that this did not constitute evidence of landowner authority, and described the document Excel produced as "inevitably self-serving".  He said that this alone would have been enough to dismiss the Claim.

Snakes_Belly

The images are brilliant especially the video. Sometimes people respond to images better than loads of text.

Daniel made some very good images when he and his partner defended a claim against Excel and they won. 

milkybk

MysticDad said:

milkybk said:

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.

In my recent win against Excel, the Directions following Set Aside required that they provide evidence that they were authorised to conduct parking operations on the site.  Excel provided a similar 'Leaseholder witness statement'.  The judge agreed with me that this did not constitute evidence of landowner authority, and described the document Excel produced as "inevitably self-serving".  He said that this alone would have been enough to dismiss the Claim.

Hey - thanks for your comments, much appreciated! That's good news to hear, seems like everyone is in agreement on the fact. Do you have a court transcript/Judgement at all from your hearing with the Judge's comments on? Just to be used as a reference/exhibit on this specific point. That sort of thing may not be available, I'm not sure, so if not no worries and also if you didn't want to share then obviously that's fair too! It's positive news, just as long as the Judge I get seems it the same way, without any evidence etc to back me up - Although I will obviously make notes from everything everyone is sharing, which will help regardless. Thank you. And congratulations on the win, beating the crooks! 

Snakes_Belly said:

The images are brilliant especially the video. Sometimes people respond to images better than loads of text.

Daniel made some very good images when he and his partner defended a claim against Excel and they won. 

Thanks, yes that's my hope, they paint a pretty clear (well unclear ironically) picture of how poor Excel's signage is, on purpose. Apologies, is Daniel "MysticDad" who posted above? If so I will check their thread out too! Thanks.

Appreciate the continued support all.

Snakes_Belly

Daniel's case involved paying for parking and parking in a spot at the end of the row that looked like a parking bay. Excel said that it was not a parking bay. The judge said that he would have parked there. It was a car park in Nottingham. In the lace market from memory.  

Same happened with Keep Calm and Carry On who was ticketed in the same car park as myself. She parked in what she thought was a parking bay and paid for parking. Excel said that it was not a parking bay. Judge said that it had all the hallmarks of a parking bay.

Second claim against Keep Calm she was not even parked on the car park. She got costs for unreasonable behaviour in that hearing. 

People receiving CCJ's for the most trivial of trangressions such as inputting of wrong VRN's must stop. 

milkybk

Snakes_Belly said:

Daniel's case involved paying for parking and parking in a spot at the end of the row that looked like a parking bay. Excel said that it was not a parking bay. The judge said that he would have parked there. It was a car park in Nottingham. In the lace market from memory.  

Same happened with Keep Calm and Carry On who was ticketed in the same car park as myself. She parked in what she thought was a parking bay and paid for parking. Excel said that it was not a parking bay. Judge said that it had all the hallmarks of a parking bay.

Second claim against Keep Calm she was not even parked on the car park. She got costs for unreasonable behaviour in that hearing. 

People receiving CCJ's for the most trivial of transgressions such as inputting of wrong VRN's must stop. 

Yes, no surprises. My journey with Excel has been similar, including a secret CCJ I had no idea about for a long time. The alleged event was in early 2017, they served a CCJ in late 2020 to an address I hadn't lived at for years. They didn't run a single check in 3 years etc to see if I'd moved, hence not been responding - Judge agreed that it was ridiculous, as every bank card, insurance policy, driving license, council tax/utility bill and electoral role clearly showed me leaving at a different address.

The woman who represented Excel at the hearing didn't have a clue and just kept repeating "Your honour, the Defendant is the victim of his own caused misfortune" - she said it about 6 times, she was late too. The Judge saw straight through it, pretty much dismissed her arguments within a few minutes and awarded me the set aside and strongly advised me to defend the claim, rather than pay "as I had a very real chance of defending it" - paraphrasing the last part, as I don't have a transcript.

Excel repaid the N244 fee instantly and the Judge advised I hold off on claiming any further costs until after the actual claim hearing - I was quite excited/overwhelmed to just have won and to get rid of the illegal CCJ, so didn't ask too many questions. But she told me that she thought I if I won the Claim hearing I would likely me able to claim for sustainably more, or at least that's what she seemed to be implying at the time. She definitely seemed like a Judge who was sick of seeing companies like Excel wasting her Courts time and who can blame her/them for feeling that way.

milkybk

Just checked this morning, Excel received and signed for my hardcopy of my WS, so I have the proof of sending etc too. Although that wasn't so important anymore, as Mr Jake from their litigation team had already acknowledged receiving it

I posted a copy to the Court, I know it's overkill as it will likely just be received by the same people I spoke to last week and deposited in the same box but at least I have proof of sending, for peace of mind. I reached out to them via email again for confirmation that they had received my electronic copy but haven't heard anything as of yet. Will give it until the end of this week and then will ring again, not letting anything be missed this time as the WS and Evidence is thorough and comprehensive, want to ensure Excel are put to the sword.

In terms of my own "running order" for the day (sheet I will have to glance at during the trial for reference) I have been adding additional points over the weekend, after the advise various posters have made:

• I have made some notes about Excel's provided 'Leaseholder witness statement', as mentioned by @Fruitcake. 
• Also backed up my @MysticDad post - any additional info you could share from your case on this specific topic would be appreciated.
• Also noted @Coupon-mad comments - For the Claimant's WS para 26, which has now been overridden by the appeal in Excel v Smith. So I know to refer the Judge to it, if required.

I may also draft something official about the above couple of points and send it to the Claimant & Court as an appended WS to be added to my bundle. Seems worthwhile (referring to the Leaseholder stuff).