DCBLegal/Excel Parking - Hearing Date June 2023

WoodyTheCowboy

Potentially a very stupid question incoming...

I can refer to Excel's WS within my own right? Or would my counter to their points raised come at the hearing?

Just want to make sure I can use their own material against them within my WS

Fruitcake

You can refer to anything the claimant has put in their claim and WS in your WS.

CBRE stands for Coldwell Banker Richard Ellis. It's an American owned property management company, so they appear to be the Managing agent acting for Sainsburys.

The UK division is registered at Companies House as CBRE Investment Management Group (UK) Ltd.

Sarah Pritchard has never been an officer nor a person with significant interest in CBRE, therefore was not authorised to sign contracts on behalf of CBRE.

That Contract Witness Statement hasn't been signed by anyone else, so it isn't a contract between two parties. It's just a statement with no proof that Excel have a contract with Sainsbugs.

Umkomaas

WoodyTheCowboy said:

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

That's some ancient contract - 2014 - referencing Excel's membership of the BPA AOS, of which they haven't been a member since around 2016.  I'm not sure that it's a showstopper, but adding it in your WS alongside the other contract issues you are raising will do no harm. 

WoodyTheCowboy

You can refer to anything the claimant has put in their claim and WS in your WS.

CBRE stands for Coldwell Banker Richard Ellis. It's an American owned property management company, so they appear to be the Managing agent acting for Sainsburys.

The UK division is registered at Companies House as CBRE Investment Management Group (UK) Ltd.

Sarah Pritchard has never been an officer nor a person with significant interest in CBRE, therefore was not authorised to sign contracts on behalf of CBRE.

That Contract Witness Statement hasn't been signed by anyone else, so it isn't a contract between two parties. It's just a statement with no proof that Excel have a contract with Sainsbugs.

Appreciate the digging you've done there. I'll include that.

Umkomaas said:

That's some ancient contract - 2014 - referencing Excel's membership of the BPA AOS, of which they haven't been a member since around 2016.  I'm not sure that it's a showstopper, but adding it in your WS alongside the other contract issues you are raising will do no harm. 

I also noticed that in the Contract Witness Statement it claims the lease started on 4th June 2004. Yet the actual underlease paperwork is dated 12th November 2014. Can that be possible or is that a fantastic oversight on their part?

Fruitcake

Whilst the contract and Contract witness statement each have a date, there is no contract period nor renewal process. There is nothing that shows there was a contract still in place at the times of the alleged events.

All the questions about the discrepancies that have been highlighted on their own may not sway a judge, but added together I would suggest it puts enough doubt to say on the balance of probabilities that Excel never had a contract with or flowing from the landowner, and any alleged contract with a managing agent did not authorise them to issue court claims in their own name.
Add in that there is no proof that there were any signs at the site or in the alternative, there is no proof that signage could form a contract with a motorist. The claimant should be put to strict proof that the contrary is true.

WoodyTheCowboy

In my WS I've added my own pictures of the signs that were in place at the time. If I add in there is no proof by Excel there were any signs (totally agree with you and totally get your point) am I just contradicting myself? If so, do I remove my evidence of the signs in place and the associated points related to them?

WoodyTheCowboy

WoodyTheCowboy said:

In my WS I've added my own pictures of the signs that were in place at the time. If I add in there is no proof by Excel there were any signs (totally agree with you and totally get your point) am I just contradicting myself? If so, do I remove my evidence of the signs in place and the associated points related to them?

Keen to get someone's take on this and any input is massively appreciated. The help so far has been incredible so thank you.

Below is the latest version of my WS with @Fruitcake additions and I feel I'm in a strong position but again, any insight into areas that I could strengthen it further would be a great help. 

https://www.dropbox.com/s/ahof7qa846xcpn9/Draft WS redacted.pdf?dl=0

Coupon-mad

Absolutely NEVER remove points and good evidence about a lack of signs.  Most hearings focus on signs (clear or unclear) so you must hit that subject head on.

Remove the brackets around Excel in the top heading. Looks weird.

Remove the word 'nearby' from paragraph 3.

In paragraph 4, remove the sentence starting "This sign states" (eek no!) and don't show any photo of readable signs.

Finally, para 14 talks about frustration of contract but misses the point.  That bit isn't about signs. The Claimant should be put to strict proof that their machines and app were working properly at the material time.  You could also add that this situation (impossibility to pay) falls within the 'unfair terms and consumer notices' examples in Schedule 2 of the Consumer Rights Act 2015 which s71 confirms the court has a duty to consider.

WoodyTheCowboy

Thanks @Coupon-mad

Some great points highlighted there, thank you for taking the time to look at that. Really appreciate it. 

Using Schedule 2 of the Consumer Rights Act is a nice touch!

Coupon-mad

I've used it at every hearing I've attended.