LBCC - County Court Claim - Enterprise Parking Solutions

happych4ppy

Le_Kirk said:

This is regularly posted by @Fruitcake: -

In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court  are being asked to interpret the contract.
The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Also look up sections 43 & 44 of the companies act regarding signatures because it is important that they are signed in accordance with that act.  Also are they contracts or service agreements?

Thanks, the documents are titled "Enterprise Parking Solutions Contract Service Agreement. How can I discern if it's a contract or a service agreement? Shall I post a copy here or is that not a good idea?

Fruitcake

Please post their WS here including the alleged landowner contract/agreement for comment. Redact personal information if it is not already in the public domain.

Please tell us if you have redacted anything, and if so, what.
Please also tell us if the PPC has redacted anything, and if so, what.

When is your hearing date? I am surprised you haven't established the landowner's identity yet.

happych4ppy

Fruitcake said:

Please post their WS here including the alleged landowner contract/agreement for comment. Redact personal information if it is not already in the public domain.

Please tell us if you have redacted anything, and if so, what.
Please also tell us if the PPC has redacted anything, and if so, what.

When is your hearing date? I am surprised you haven't established the landowner's identity yet.

My hearing date is 1st June 2022, I will post their WS...

Things I've redacted are personal details, the PCN, debt recovery reminders and some useless pictures of small signs.

Other than that everything else in the WS including the landowner contract/agreement is redacted by them as you see it (you will see they have redacted some parts of the service agreement including names/signatures etc.)

Thanks again

happych4ppy

..........

Coupon-mad

So the entrance sign clearly advertises that parking is free for Griffin customers, which you were, so why would you expect to read the pay and display terms?  Who would?  If there was anything needed to register for this free offer, you'd expect the pub staff (and/or clear and prominent notices that were 'bound to be seen') to alert you.

You said:

I have since looked at the car park on google street view and (according to the microscopic signs) it's one of those places where you're supposed to validate/register parking when you're inside the pub (which I was never in knowledge of, informed/reminded or prompted to do so).

My thoughts for you to raise:

- where is their machine or ipad log evidence that this car was not exempted by Griffin staff at the bar?  It may have been - would have been a quick and unmemorable one-liner question - and the burden was not on you to do so if the bar staff held the ipad, which was clearly out of sight.

- where is their evidence that there was a prominent ipad at the pub bar and clear warnings, for customers to be left in no doubt what they had to do?

- where is their evidence that the supposed ipad (that they've shown no images of) was working that day?  These systems are notoriously unreliable even if 'in your face' obvious.

happych4ppy

Coupon-mad said:

So the entrance sign clearly advertises that parking is free for Griffin customers, which you were, so why would you expect to read the pay and display terms?  Who would?  If there was anything needed to register for this free offer, you'd expect the pub staff (and/or clear and prominent notices that were 'bound to be seen') to alert you.

You said:

I have since looked at the car park on google street view and (according to the microscopic signs) it's one of those places where you're supposed to validate/register parking when you're inside the pub (which I was never in knowledge of, informed/reminded or prompted to do so).

My thoughts for you to raise:

- where is their machine or ipad log evidence that this car was not exempted by Griffin staff at the bar?  It may have been - would have been a quick and unmemorable one-liner question - and the burden was not on you to do so if the bar staff held the ipad, which was clearly out of sight.

- where is their evidence that there was a prominent ipad at the pub bar and clear warnings, for customers to be left in no doubt what they had to do?

- where is their evidence that the supposed ipad (that they've shown no images of) was working that day?  These systems are notoriously unreliable even if 'in your face' obvious.

Great points thank you. I'm working on my crib sheet i'll post a draft when it's ready. Thanks again

happych4ppy

Le_Kirk said:

This is regularly posted by @Fruitcake: -

In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court  are being asked to interpret the contract.
The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Also look up sections 43 & 44 of the companies act regarding signatures because it is important that they are signed in accordance with that act.  Also are they contracts or service agreements?

@Fruitcake might you have any feedback on the Contract Service Agreement provided by the claimant as evidence, I posted it just above as requested. Thanks

Fruitcake

The signature of the person signing for the landowner has been redacted, so there is no proof that it was signed by Richard Williams, or that the signatory has authority to sign a contract. If they had, there would be no reason to redact it. 
Use the redactions in disclosure point from the Hancock vs Promontoria case about hiding the signature being unreasonable. Note that this was an appeal court decision so is persuasive on the lower courts.
Combine that with there being no proof that the signatory had the authority to sign on behalf of the landowner and therefore failed to comply with the strict requirements of Sections 43 and 44 of the Companies Act 2006.

Below is what I produced for another poster, so pick out all the parts that are relevant. I suggest you look up Joseph Holt Limited using the Companies House online portal and check whether Richard Williams was an officer of the company or a person with significant control/interest in the company at the time the contract was signed.

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.

The alleged contract fails S 43 of the Companies Act because it has not been signed by an officer of the landowner company nor by someone with express or implied authority to form a contract with another party.

  

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 fails S 44 of the Companies Act because it 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.

 

The paragraph below was from another case where the judge said the person who signed the contract was not authorised to do so, so it supports the point that a contract must be signed by an officer of the company or by someone with significant control/interest.

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."

You should also note that the two pages you have posted appear to be from different documents. The first page is Page 1 of 8, whereas the second page is page 3(?) of 14, and has not been signed or dated by the client.

Is that all the claimant provided with regards to the contract/service agreement, because if they are, you should aver they are from different documents for different sites, and put the claimant to strict proof that the contrary is true.

happych4ppy

Fruitcake said:

The signature of the person signing for the landowner has been redacted, so there is no proof that it was signed by Richard Williams, or that the signatory has authority to sign a contract. If they had, there would be no reason to redact it. 
Use the redactions in disclosure point from the Hancock vs Promontoria case about hiding the signature being unreasonable. Note that this was an appeal court decision so is persuasive on the lower courts.
Combine that with there being no proof that the signatory had the authority to sign on behalf of the landowner and therefore failed to comply with the strict requirements of Sections 43 and 44 of the Companies Act 2006.

Below is what I produced for another poster, so pick out all the parts that are relevant. I suggest you look up Joseph Holt Limited using the Companies House online portal and check whether Richard Williams was an officer of the company or a person with significant control/interest in the company at the time the contract was signed.

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.

The alleged contract fails S 43 of the Companies Act because it has not been signed by an officer of the landowner company nor by someone with express or implied authority to form a contract with another party.

  

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 fails S 44 of the Companies Act because it 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.

 

The paragraph below was from another case where the judge said the person who signed the contract was not authorised to do so, so it supports the point that a contract must be signed by an officer of the company or by someone with significant control/interest.

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."

You should also note that the two pages you have posted appear to be from different documents. The first page is Page 1 of 8, whereas the second page is page 3(?) of 14, and has not been signed or dated by the client.

Is that all the claimant provided with regards to the contract/service agreement, because if they are, you should aver they are from different documents for different sites, and put the claimant to strict proof that the contrary is true.

thank you

happych4ppy

@Fruitcake @Le_Kirk @Coupon-mad @KeithP @D_P_Dance

Hi all, so it's two weeks before the hearing and looks like it's going ahead, no sign of being discontinued and QDR even sent me a "Statement of Costs" (to sum of £352, higher than the £294 stated in their WS - is this normal?)

Anyway, here is my crib sheet first draft, I would really appreciate any feedback or advice. Sorry of it's too long. Many many thanks in advanced

1) Preliminary matter > Claimant did not submit their WS on time. Deadline was 4pm 11th March 2022.  Claimant WS was sent 23rd March 2022	Claimant evidence/WS should be considered void?
2) Claimant photographs purported as evidence of signage on a different date cannot be considered sufficient to evidence their presence on the date in question.	Defendant WS paragraph 5)
3) Any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas.	Defendant WS paragraph 5)
4) Photograph purported as evidence of entrance sign violates BPA regulation 19.1 (Exhibit #1) “use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start"	Defendant WS paragraph 4) terms/conditions not on entrance sign, nor visible/legible from the start, how can the drive be aware of terms/conditions from the start if not on the entrance sign ?
5) Photographs purported as evidence of signage violate BPA regulation 19.3 (Exhibit #1) “Signs must be conspicuous and legible…so that they are easy to see, read and understand”	Defendant WS paragraph 5) no evidence as to sign visibility from any car entering, parking in or exiting the car park, nor whilst walking towards the venue for which the car park serviced (not “conspicuous…easy to see, ready and understand”). Defendant WS paragraph 6) signage presented as “evidence” have vague/hidden terms with mix of large/small font (not “legible so easy to see, read and understand”)
6) No contract to pay an onerous penalty would have been seen, known or agreed.	Defendant WS paragraph 6) signage presented as “evidence” has vague/hidden terms with mix of large/small font > as such (Consumer Rights Act 2015) constitutes an unfair customer notice, any terms would be considered incapable of binding any person reading them under common contract law.
7) The terms the Claimant is relying upon were unclear/unfair and the Beavis case is fully distinguished. Consequently, no contract to pay an onerous penalty was seen, known or agreed.	Defendant WS paragraph 6, 22, 24, 25, 26, 27) The Beavis facts set a high bar that this Claimant has failed to reach. A key factor in the Beavis case was that the relevant signs  (Exhibit #2) were large, prominent and conspicuous and legible, so that any reasonable user of the car park would be aware of their existence and nature, that “motorists could hardly avoid reading the notice” (clear black on yellow) and “the charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it. Compare that to the Claimant’s signs, which have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them (CRA 2015 unfair customer notice = incapable of binding)
8) Photograph purported as evidence of entrance sign clearly advertises that parking is free for Griffin customers, which I was, so why would I be expected to read the pay and display terms? Who would?	Photograph purported as evidence of entrance sign states “FREE FOR GRIFFIN CUSTOMERS”
9) If there was anything needed to be registered for this free offer, what is the evidence of clear and prominent notices that were ‘bound to be seen’ to alert me? Where is the evidence that there was a prominent registration-machine/ipad inside the venue and clear warnings for customers to be left in no doubt what they had to do? The burden was not on me to register VRN if the bar staff held the registration-machine/ipad, which was clearly out of sight	Defendant WS paragraph 6) No contract to pay an onerous penalty would have been seen, known or agreed (Consumer Rights Act 2015 constitutes an unfair customer notice, any terms would be considered incapable of binding any person reading them under common contract law)  Defendant WS paragraph 7) the Claimant failed to alert visitors to an unexpected obligation to pay/register VRN or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable  Defendant WS paragraph 24) … Beavis case: The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests.
10) Where is the machine/ipad log evidence that prove this car was not exempted by Griffin staff?
11) Where is the evidence that the supposed registration-machine/ipad was working that day?
12) Abuse of process / double recovery / Claimant has added banned/outlawed (debt recovery/admin) costs they haven’t incurred.	Defendant WS paragraph 11,12,13) added costs constitutes double recovery > abuse of process (Excel vs. Wilkinson - Exhibit #8) - (this case should also be struck out?)  Defendant WS paragraph13) Claimant seeking to circumvent CPR 27.14 and breaching the Consumer Rights Act 2015  Defendant WS paragraph 14, 15, 16, 17, 18) adding “debt recovery” fees on top is unjustified and banned (government statutory Private Parking Code of Practice), “The parking operator must not level additional costs over and above the level of a parking charge or tariff as originally issued.”
13) Fairness and clarity of terms and 'consumer notices' are paramount in the government statutory Private Parking Code of Practice	Defendant WS paragraph 27)   Private Parking Code of Practice
14) Sum claimed exceeds the maximum potentially recoverable from a registered keeper	Defendant WS paragraph 19) Protection of Freedoms Act 2012
15) Claiming unexpected ‘costs/damages’ on an indemnity basis is stated to be unfair	Defendant WS paragraph 20) Unfair Terms In Consumer Contracts, CMA37, para 5.14.3, being the official Government guidance on the Consumer Rights Act 2015
16) Breach of Consumer Rights Act 2015 due to unfair terms and/or unclear notices, failed requirement for “prominence”, fair contract terms and fair consumer notices (unclear signage, non binding)	Defendant WS paragraph 20, 21) Consumer Rights Act
17) Contract Service Agreement: document is not whole first page is page 1 of 8, second page is page 3 of 14 …	Claimant WS) “Contract Service Agreement” Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 > the document must in all normal circumstances be placed before the court as a whole. Seldom if ever can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality… confidentially alone cannot be good reason for redacting an otherwise relevant provision
18) Contract Service Agreement:  different documents from different sites, first page is page 1 of 8, second page is page 3 of 14 … (claimant is put to strict proof that the contrary is true)	Claimant WS) “Contract Service Agreement”
19) Contract Service Agreement: second page no signed or dated by the client therefor failed to comply with the strict requirements of Sections 44 of the Companies Act 2006	Claimant WS) “Contract Service Agreement” Companies Act 2006) 44 Execution of documents …not signed by two people from each company nor by a director and witness of each company in accordance with the requirements
20) Signature of the person signing for the landowner has been redacted, so there is no proof that it was signed by Richard Williams, or that the signatory has authority to sign a contract on behalf of the landowner (if they had there would be no reason to redact it) and therefore failed to comply with the strict requirements of Sections 43 and 44 of the Companies Act 2006,	Claimant WS) “Contract Service Agreement” Defendant WS paragraph 28) Lack of landowner authority evidence  Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 > court of appeal are now clear that redactions are improper where the court are being asked to interpret the contract Companies Act 2006) 43 Company contracts (Richard Williams is not an officer of the company nor someone with express or implied authority) Companies Act 2006) 44 Execution of documents …not signed by two people from each company nor by a director and witness of each company in accordance with the requirements …Richard Williams is not (authorised to sign the contract) an officer of the company or someone with controlling interest, ref judgement case number F1DP92KF “Claire Williams could not have signed the contract on behalf of the owner because she is not a director or the owner”
21) Lack of any fair ADR	Defendant WS paragraph 29)