DCBLegal/Excel Parking - Hearing Date June 2023

WoodyTheCowboy

In that case I won't refer to BPA as it appears that would just be brushed aside. I'll stick with IPC CoP.

WoodyTheCowboy

Is it appropriate to post the Claimants WS? I'd like some clarification/input on some of the points raised.

Boat_to_Bolivia

Yes no problem.

B789

WoodyTheCowboy said:

Is it appropriate to post the Claimants WS? I'd like some clarification/input on some of the points raised.

yes.     

Snakes_Belly

The cases that the cite are irrelevant and out of context. Thornton v Shoe Lane, Beavis, Vine and Chaplair-ltd-v-Kumari-2015-ewca-civ-798. 

WoodyTheCowboy

https://www.dropbox.com/s/98cgghhotuvnacy/Witness Statement - 153 Pages - Paginated (Compressed)[53] REDACTED.pdf?dl=0

My most specific question regards around landowner authority. They've presented the contract but it appears to be between the landlord and not the landowner directly?

I have email correspondence with a third party that claims the landowner does not have a 'direct relationship' nor 'employs' Excel Parking. This was obtained after I tried to identify the landowner in order to request they cancel the PCNs.

WoodyTheCowboy

For comparison I've posted my own draft WS and would gladly welcome any input on its weak points.

https://www.dropbox.com/s/szgz3qhexqzv9u0/Draft WS REDACTED.docx .pdf?dl=0

Fruitcake

I haven't read either WS yet, but with regards to landowner authority, you should be attacking the fact that there is no contract with or flowing from the landowner. Where there is a contract with an agent or sub-contractor and the PPC, there must be a contract between the landowner and the agent/sub-contractor stating that the said agent can employ a PPC, and that the PPC has the right to issue PPCs and court claims.

The Companies Act 2006 details how a contract must be formed, and how documents must be properly served. Below is something I did for another poster so you should be able to adapt it to suit your case.

The text in italics is my interpretation of the Act. The final paragraph details a case where the judge found for the defendant because the contract wasn't signed by an official (director) of the landowner.

Companies Act 2006

 

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

 

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

 

From 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.

 

 

From 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."

Fruitcake

I think Excel have chucked so much drivel in the hope that the important stuff is buried.

Things to note from Excel's WS

Contract witness statement (P76) by alleged managing agent states they are authorise by Sainsburys to contract with Excel.
The landowner and superior landlord is Rocco International. No contract with or flowing from them to Sainsburys authorising them to engage a PPC.

Para 9 of that Contract witness statement states the operator is authorised to pursue charges in accordance with the BPA AoS COP. Excel are no longer BPA members, so the alleged contract no longer applies. 

I can't see anywhere in the massive contract, nor in the Contract WS on P76 that Excel are authorised or permitted to issue court claims.

The image of a sign is a stock image held on a computer. There are no images of signs at all from the site. If there were it is reasonable to assume on the balance of probabilities that they would be provided. There is no proof that the stock image is a true representation of the signs on site at the material time. Again, if it was, the signs would have been provided. The fact that they have not been provided would lead the "man on the Clapham omnibus" to reasonably believe they were either not there or are different.

The are no images showing the vehicle parked, nor that it was parked near any signs, nor that signs would have been seen by the driver.

Schedule 6 of the big contract, paragraph 18 states that parking charges must be consistent with those at comparable car parks in the town of Hitchin. I would suggest that council car parks would be included in that schedule (interpretation that favours the consumer as per the CRA 2015). Check council charges, but they would normally be around £50 reduced to £25 for early payment, and no fake add on charges.

WoodyTheCowboy

Thanks @Fruitcake that's a real help! 

What they've provided is the underlease between the landlord and Excel which makes no mention of being able to issue PPC's or Court Claims. The underlease itself has a common seal and has been signed by two people, who are stated as authorised signatories, but it does not state their positions so hard to know who they were.

There's then a random page at the very end which suddenly they are 'authorised' to do all these things. This has been signed by an Estate Manager, on behalf of the Managing Agent. Seems fishy to me. I've linked it below.

https://www.dropbox.com/s/crnff5tc4s7gyxr/Contract last page.pdf?dl=0