WS Stage - Quick question

thewait

Hi all,

Appreciate all the support available on this site. I have used it to put together a Defence and now in the process of putting together my Witness Statement.

However I have a quick question I wanted to get your thoughts on. The lawyers have reached out letting me know the Claimant will not be attending in person and they used this opportunity to provide me with a copy of their witness statement. 

But they actually forgot to attach their Witness Statement in their email. Now I am keen to see what their claims are but not sure if I should be letting them know they forgot to attach their attachment in the email to me? Does this mean the Witness Statement would be  struck out (provided they still don't realise before the court date)? Or should I make them aware and ask them to resend this? 

Just wanted to see what best course of action is here and if there is any advantage here.

Fruitcake

The claimant not attending in person is normal. They are afraid they will be asked questions they are unable or unwilling to answer.

It is not unheard of for PPCs to claim they didn't receive something you sent to them, and to claim they did send something to the defendant that they didn't actually receive. 
Since these companies are such fine, upstanding pillocks pillars of the community, judges tend to believe them, especially as it is virtually impossible to prove they didn't send something.

I think you would better off seeing their WS than just claiming it never arrived. I suggest you contact them asap and inform them they have failed to supply their WS. Warn them if it hasn't arrived by the court mandated deadline you will ask the court for the claim to be struck out.

Please tell us who you are dealing with, and where the alleged event occurred as it may have cropped up here before.

Show us their WS as soon as you get it. Only redact YOUR personal data. 

Coupon-mad

Depends if they copied you into their email to the court, or if they emailed you alone.

If the former, DON'T point out their error!  

thewait

Thanks Fruitcake said:

The claimant not attending in person is normal. They are afraid they will be asked questions they are unable or unwilling to answer.

It is not unheard of for PPCs to claim they didn't receive something you sent to them, and to claim they did send something to the defendant that they didn't actually receive. 
Since these companies are such fine, upstanding pillocks pillars of the community, judges tend to believe them, especially as it is virtually impossible to prove they didn't send something.

I think you would better off seeing their WS than just claiming it never arrived. I suggest you contact them asap and inform them they have failed to supply their WS. Warn them if it hasn't arrived by the court mandated deadline you will ask the court for the claim to be struck out.

Please tell us who you are dealing with, and where the alleged event occurred as it may have cropped up here before.

Show us their WS as soon as you get it. Only redact YOUR personal data. 

Thanks Fruitcake and Coupon-mad. They have emailed me alone and have not copied me into their email to the court so have gone back to them as you suggested Fruitcake. 

I have also put together a first cut of my witness statement for which I will expand to with any additional points (or update accordingly) once I get their Witness Statement. 

Witness statements are due mid next week, so if they don't come back to me before the 14 day deadline, should I just submit my witness statement and raise this with the judge at the time? Lawyers are Gladstones and the PPC is PCM.

I will submit two further replies after this message outlining my Defence that I have already submitted and my current draft Witness Statement. Any comments on the Witness Statement would be greatly appreciated. 

But first just to give you a quick overview, I live in a HA and the agent stuck a PCN on my windscreen whilst I was unloading my shopping and using the restroom when my car was parked outside my house. Can't have been more than 10-15 mins or so. I came out as he was writing the PCN. So based on this, I did state I was the driver as wanted to use the no contract and unloading defenses (in case one of these defenses alone wasn't suitable). Not fighting the PCN based on Signage issue or not declaring who the driver was.

thewait

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle at the time in question, but liability is denied. 

3.       It is denied that the Defendant was in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant as a resident, for which the tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

4.       The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

5.       Furthermore as the Defendant was at the time of question unloading his vehicle there can be no legitimate interest in punishing authorised unloading, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted unloading by a driver who has legitimate business and rights to do so.

These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).

Accordingly, it is denied that:

5.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

5.2. there was any obligation (at all) to display a permit; and

5.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

6.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

7.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant and will seek further costs pursuant to CPR 46.5.

8.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

thewait

Above was the Defence. Below is the current draft of the Witness Statement. Forgot to add, the offence they are claiming is "Parket outside of the confines of a marked bay".:

1.         I am <NAME> of <ADDRESS>, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.         In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events:

3.         I was approaching my place of residence to briefly unload some household shopping before carrying on with my journey. Upon approaching my place of residence, a car parked outside one of multiple garages in the estate, started moving before I approached it and entered the nearest garage before my house. At a later point I realised this was the company representative who placed the Parking Charge Notice (“PCN”) on my vehicle. By entering the garage, this meant he could not see the volume of shopping I was unloading from my vehicle and taking into my house (Exhibit XX-01 – Credit Card statement showing total spend).

4.         Upon unpacking the shopping and briefly using the restroom I then come out to the company representative preparing a PCN for my vehicle which was parked outside my place of residence.

5.         The signage in the residential estate at the time the notice was issued (Exhibit XX-02) is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit, or not parked in a marked bay, because the signage does not offer an invitation to park on certain terms.

Tenancy Agreement

6.         I was a resident of the premises at the time and the tenancy agreement (Exhibit XX-03) has absolutely no requirement for any permits or restrictions of use in relation to the communal parking areas. The tenants were issued with a key card that provided unrestricted access to the secure indoor vehicle parking area, thus considered unfettered access.

7.         The Tenancy agreement makes no assertion that a car must be parked in a marked bay, nor that a penalty of £100 must be paid in the event of a failure to do so. Further, the tenancy agreement permits the parking of a vehicle with the only stipulation being to “not block local roadways, other vehicular access and footpaths, and to keep the road, car parking spaces and footpaths clear of unroadworthy, unlicensed and untaxed vehicles…” (Exhibit XX-03, pages xyz).

8.         I believe that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms as none of the terms specified in the tenancy agreement were breached. My vehicle clearly was 'authorised' as per the lease and primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. I believe that any parking management company with a legitimate interest in protecting the parking rights of a residential space – which is surely their only purpose – would immediately rescind any charges issued to residents.

Loading / Parking outside of Bay

9.         The claimant may argue that I parked outside of the allocated bay for loading. I refer to the case of Jopson v Homeguard [2016] B9GF0A9E (Exhibit XX-03), where on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. There are also no specific bays classified for loading/unloading within the estate.

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14

10.       Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

Statement of Truth

I believe that the facts stated in this witness statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Coupon-mad

Don't say it took 15 minutes if ex-clamper chancers PCM only have photos spanning two minutes.

Don't say the ticketer couldn't see you.  The opposite is what you should be arguing, that the predatory ticketer must have lurked and watched you unload heavy bags and could see from your permit and where you went (briefly indoors) that you were a resident.

You should point out that in Jopson, she was a tenant and wasn't in a bay either, due to needing to stop temporarily close to the flat to unload, so that case is on all fours with your case in all facts.

Can you take a photo of your key fob and add that as an Exhibit to show that you have unfettered access?

Can you add that the place you stopped is not marked as a no loading area so there was no reason to think a resident can't unload there before parking in a bay, if there are bays.

You don't appear to have mentioned the lack of landowner authority that was in your defence.  You should repeat that you do not believe the claimant's contract with the landowner (if one exists) allows them to penalise permitted residents for loading/unloading activity.

You haven't said anything about the false added £60 'admin' costs!  Look at the recent new WS posted by @rapidon

https://forums.moneysavingexpert.com/discussion/comment/78890645#Comment_78890645

thewait

Thanks for your comments Coupon-mad, will update the Witness Statement to reflect those as well as the point raised in their Witness Statement. I realised I messed up by saying I was the registered keeper when in fact I am not as I lease the car. But in the same breath they use the statement to state that I was the driver and admitted to as such, so I think that point is moot and shouldn't cause too much issues.

Attached is a redacted version of the lawyers pack. I have only redacted all personal information just in case of data protection laws. 

https://drive.google.com/file/d/1XJaipWCegZxkOvv1iFdbFPNIaKKHoZhd/view?usp=sharing


Based on that I can see my main points to raise are:

• No contract with the land owner - they have shared a contract with a managing agent who I've never heard off. So my tenancy agreement supersedes this and 
• We received a fob to the gated garage before they came in to "manage" the area. Fob is one per household and gives us unfettered access.
• I have never requested, paid for or received a "Permit" from them as we park one household car in the garage and another in another area.
• There photos only show me parked outside between 13:49 and 13:51 so clearly not been provided enough time to unload my shopping.
• Their own photos shows there is no Marked Bay or any loading Bay's for where I parked which was as close to my house as possible. The manner I parked was also not causing any road block or any other inconvenience to fellow residents.
• They mention the Beavis case for the fact that a contract can be made by an offer in the terms and conditions set out on the sign, so will need to the primacy of contract point here.

These are my initial thoughts for my updates to be made to my Witness Statement. Any further points/advice would be much appreciated.

Coupon-mad

You are the driver so don't wriggle out of that; as you say, points about the POFA are moot.  Your main focuses should be:

- that the woeful 2 minutes between predatory photos is not long enough to allow the mandatory grace period to allow a person to read the signs and/or to go indoors (in your case you were unloading bags) and come back out with the permit, to park in a bay,

- this breaches the IPC Code of Practice applicable at the time (quote and provide a link to it)

- the car was not unattended

- you were already living there with rights to park flowing from the freeholder, before PCM arrived and they made no allowance for residents with existing rights snd easements that give primacy of contract.

Fruitcake

Please will you confirm that you only redacted your personal data from the claimant's WS? The reason I ask is because the legal's name and signature have been redacted, as has part of the name on the alleged contract as well as their signature.

Do you know the full name of the managing agent? The alleged contract does not have a name that is registered at Companies House, nor does it have a registered address or company number. 
It is on PCM (UK) Ltd headed paper but has no details of the managing agent at all. It could have been written and signed by anyone, including the claimant themselves.

I knocked this up a while ago for someone else, but much of it applies to 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 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."

In your case, there is no proof that Tony Willis has express or implied authority to act on behalf of his employer. He is neither an owner or director or company secretary.

More importantly, the PPC have not signed the document at all. It therefore neither constitutes a valid contract nor a validly executed document. 

There is no mention of the landowner. 
There is no contract with or flowing from the landowner.

One minor point, the payment line displayed on the sign is a prohibited premium rate 'phone number.

thewait

Fruitcake said:

Please will you confirm that you only redacted your personal data from the claimant's WS? The reason I ask is because the legal's name and signature have been redacted, as has part of the name on the alleged contract as well as their signature.

Do you know the full name of the managing agent? The alleged contract does not have a name that is registered at Companies House, nor does it have a registered address or company number. 
It is on PCM (UK) Ltd headed paper but has no details of the managing agent at all. It could have been written and signed by anyone, including the claimant themselves.

I knocked this up a while ago for someone else, but much of it applies to 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 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."

In your case, there is no proof that Tony Willis has express or implied authority to act on behalf of his employer. He is neither an owner or director or company secretary.

More importantly, the PPC have not signed the document at all. It therefore neither constitutes a valid contract nor a validly executed document. 

There is no mention of the landowner. 
There is no contract with or flowing from the landowner.

One minor point, the payment line displayed on the sign is a prohibited premium rate 'phone number.

I went a bit over board and redacted all identifiable info. But there are two people's name specified "Tony Rutt/Sarah Willis" with a position in company stated as "Property Managers(s)". 

Based on this, would this satisfy the "signed by two people from each company" or do they still need to be authorised signatories and therefore the claim is still valid as they have no provided proof they are authorised signatories? Also I imagine the bigger point here is more the PPC having not signed and there being no mention of landowner, with no contract with or flowing from the landowner being provided here?