CCJ Set Aside Hearing due – claimant One Parking Solution via DCB Legal Ltd

mike58

Defence and updated Witness Statement including further evidence exhibits now submitted to court and claimant prior the deadline 18th.

I included photographs demonstrating that selective angles can show either obscured OR fully visible permits in weedscreens.

I will post any outcomes. Thanks all.

Coupon-mad

mike58 said:

Defence and updated Witness Statement including further evidence exhibits now submitted to court and claimant prior the deadline 18th.

I included photographs demonstrating that selective angles can show either obscured OR fully visible permits in weedscreens.

I will post any outcomes. Thanks all.

i am concerned you may have missed the great news in February about the new statutory Code of Practice.  The Defendant needs to know about it.

I've created a new paragraph 4 onwards to replace the template defence:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

Showing you and others, even though your defence & WS are in, because it is vital you know this for your hearing, unless they run away and discontinue!

Debt recovery 'cost/fees' are now banned from being added to parking charges, and that new wording explains to a Judge why that is relevant for existing cases, too.

Also read the whole new DLUHC Code of Practice because it covers all the ususl points and issues, and states the best practice position.

Not retrospective but you can use it in court, to effectively say 'Here's what a professional parking firm should have done'.

mike58

Following success in getting the 2021 'made in my absence' County Court Judgment set aside in February this year...

Claims hearing in Brighton was set for 17th November 2022.

Whilst the Court instructed me to send it and the Claimant my Defence Witness Statement February immediately after the CCJ set-aside, the Claimant's WS has only just come to me in November.

So, eight and a half month's rebuttal preparation time for the Claimant - less than two days for me to assess and add anything necessary to my Defence evidence bundle!

Done it though.

And thank you goes to whoever posted advice about a parking management contract needing 2 signatures from the company (or 1 signature plus 1 witness) per Companies Act 2006 44. I checked. It hadn't.

Hope to post the outcome of the hearing.

Fruitcake

mike58 said:

Following success in getting the 2021 'made in my absence' County Court Judgment set aside in February this year...

Claims hearing in Brighton was set for 17th November 2022.

Whilst the Court instructed me to send it and the Claimant my Defence Witness Statement February immediately after the CCJ set-aside, the Claimant's WS has only just come to me in November.

So, eight and a half month's rebuttal preparation time for the Claimant - less than two days for me to assess and add anything necessary to my Defence evidence bundle!

Done it though.

And thank you goes to whoever posted advice about a parking management contract needing 2 signatures from the company (or 1 signature plus 1 witness) per Companies Act 2006 44. I checked. It hadn't.

Hope to post the outcome of the hearing.

Upload the claimant's WS Dropbox or similar then post it here, redacted of personal information but leave anything else that is already in the public domain.
Don't forget that the Consumer Rights Act 2015 about fairness must be considered by the courts even if it hasn't been brought up by either party beforehand.

That might have been me as I've posted something about this several times on other threads. Section 43 of the Companies Act also applies for simple contracts whereas section 44 is about execution of documents.

This is what I normally post but it then needs tweaking to suit each individual case. (My comments/interpretation are in italics).

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 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."

Coupon-mad

mike58 said:

Following success in getting the 2021 'made in my absence' County Court Judgment set aside in February this year...

Claims hearing in Brighton was set for 17th November 2022.

Whilst the Court instructed me to send it and the Claimant my Defence Witness Statement February immediately after the CCJ set-aside, the Claimant's WS has only just come to me in November.

So, eight and a half month's rebuttal preparation time for the Claimant - less than two days for me to assess and add anything necessary to my Defence evidence bundle!

Done it though.

And thank you goes to whoever posted advice about a parking management contract needing 2 signatures from the company (or 1 signature plus 1 witness) per Companies Act 2006 44. I checked. It hadn't.

Hope to post the outcome of the hearing.

Can you clarify: just checking that you HAVE now filed & served (this week) your WS and evidence bundle, plus your costs assessment?

As advised in the NEWBIES thread and as your hearing Order required from both sides.  

That Order probably said your WS and evidence had to be done 'not less than 14 days before the hearing'? So you were told about your deadline much earlier than now...

The Claimant has complied, nothing wrong with that. It's not an ambush, they've just followed exactly what your Order tells both parties to do.

You both had the same deadline to file & serve your evidence bundles and WS (your defence wasn't a WS - and nor was your first WS that supported the set aside argument only).

Read the thread by @aphex007 to see an example WS bundle from 2022.

Is your hearing in person at Brighton?  Myself and @ParkingMad sometimes go and watch hearings.  We are the 'Brighton ladies' v OPS!

mike58

All done from me and in good time.

Yes, hearing in person at Brighton County and Family Court. I will be there.

Claimant WS had a stock para excusing attendance by that witness (HG) but allowing for an advocate to attend.

mike58

Outcome of the Hearing:

Hearing today of the original alledged infringement claim. Claim by One Parking Solution thrown out.

Judge had no time at all for the Claimant's assertion that its agent's selective photograph angles provided proof of incorrect display of my valid parking permit. Judge pointed out any permit could be obscured by selective angles and crouched down on the desk to demonstrate (thank you all on this thread with helpful suggestions that led to me taking a series of photos showing how easily a selective angle could be used even though a permit is clearly displayed - those photos were among my exhibits).

He was also not impressed that the so-called terms on the OPS signage called for display of the green parking permit - only to be offered as evidence by OPS black and white copies of their selective photography of my green permit.

Judge hammered home that we should be in the business of what a reasonable person would do, not what OPS did.

There is a lot more to my defence that was not even called on - reporting the above just to help anyone travelling this journey.

Remember that this was the THIRD time OPS had abused court time pursuing this case over a 5 year period. Once to get a CCJ having engineered my absence, again in the Set-Aside hearing to overturn that CCJ, and now today failing in the original claim. The claimant does not attend. Nor does the claimant witness - the witness statement was an edited boilerplate from other cases and kind of electronically signed. OPS did though run to the expense of sending an advocate from London to Brighton and back. My only speaking part was to point out that the claimant is known to appeal - judge asked the attending advocate if they were going to make that request, advocate shook his head.

Le_Kirk

Well done, brilliant outcome and well done to the judge for seeing through OPS shenanigans!

Johnersh

Costs???? 

Coupon-mad

In my experience, Brighton Judges never grant costs at a PCN hearing, not even ordinary costs.

But hopefully this OP was already granted the £275 Application fee back by the first CCJ set aside Judge - and had that fee refunded ages ago?

WELL DONE @mike58 !

ANOTHER OPS ONE BITES THE DUST!

Was the rep a chap from LPC Law, a bearded guy called Chamberlain? Or someone else?

Which Judge?

@ParkingMad will be interested in this success.