WS Stage - Quick question

D_P_Dance

These may be wort reading f you have not already dobe so.

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

Have yo commplained to your MP?

Fruitcake

thewait said:

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?

Not if it is two people from one company and none from the other. It is neither a simple contract signed by both parties nor a validly executed document signed by two authorised people from each party.

Yes, the bigger point is that the PPC has not signed the contract and neither has the landowner, and there is no proof that Hallmark have landowner authority.

We still need to know the full name of the management company because we/you can't check if Tony Rutt and Sarah Willis are officers of their company, or persons with significant influence in their company registered at Companies House and therefore capable of or authorised to signing a contract with another party.

thewait

D_P_Dance said:

These may be wort reading f you have not already dobe so.

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

Have yo commplained to your MP?

Thanks for the Prankster link, I was looking for that in all the links I had open. 

Complaining to my MP is next on my to-do list. 

thewait

Thanks again for all your help Fruitcake and Coupon-mad. I have re-written my Witness Statement based on the links shared in this thread and comments raised. Hopefully this captures all the points raised but would welcome any further comments!

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.         I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Statement of Defence. I assert that I am the hirer of the vehicle in question, registration xxxxxxxx. I can also confirm that I was the driver of the vehicle.

3.         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 and signage:

4.         I am a resident of <ADDRESS> where the alleged offence occurred. I had stopped as close as I could to the entrance of my house to unload heavy shopping as this could not reasonably be carried from where I typically park, or at the very least would require multiple trips. At no time was I parked, and my vehicle was only unloading for a matter of minutes as I was carrying on with my journey once I unloaded the grocery shopping for my family. (Exhibit XX-01 – Credit Card statement showing total spend)

5.         I was a resident of the premises at the time and the tenancy agreement (Exhibit XX-02) has absolutely no requirement for any permits or restrictions of use in relation to the parking areas nor does it impose any Loading /unloading conditions. 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. (Exhibit XX-02).

6.         The tenancy agreement permits the loading and 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-02, pages xyz).

7.         There are also no markings where I stopped to state that this is a no loading area so there was no reason to think a resident can’t unload there. (Exhibit XX-03)

8.         The tenants were issued with a key card that provided unrestricted access to the secure indoor vehicle parking area, thus considered unfettered access (Exhibit XX-04).

No parking has taken place therefore no Parking charge can be issued.

9.         The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

10.       Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

11.       In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

12.       In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

13.       In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

14.       In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.

''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

15.       If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

Signage

16.       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. The claimants signs only mention "parking" and at no time was my vehicle "parked" otherwise than in accordance with.

17.       The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

No Authority

18.       It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Control Management Ltd (UK) and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the tenant who is expressly allowed on site.

19.       The claimant has only shared an agreement with who they claim are the managing agents, with no agreement between the supposed managing agents or the Landowner being provided.

20.       Company Act 2006 Section 43 - A contract may be made by:

(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.

21.       Company Act 2006 Section 43 - A document is executed by a company by:

(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.

 

22.       The alleged contract has not been executed in accordance with paragraph 1 because 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.

23.       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."

24.       There is no proof that Tony Rutt or Sarah Willis has express or implied authority to act on behalf of his/her employer. They are neither an owner or director or company secretary.

25.       More importantly, the PPC have not signed the document at all nor is there mention of the landowner. It therefore neither constitutes a valid contract nor a validly executed document. There is no contract with or flowing from the landowner.

26. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(a)   As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question

(b)   The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;

(c)   The penalty bears no relation to the circumstances as I was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.

(d)   The clause is specifically expressed to be a parking charge on the Claimant's current signs.

Abuse of process – the quantum

27.       In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is described variously as ‘further charges’ or ‘debt collection costs’. However, when referring to the signs, as presented by the claimant (exhibit F) the only charge mentioned was of £100. Therefore, if a contract was agreed – which is denied – the only sum payable would be £100, as it is impossible for new terms to be added to the contract without the agreement of both parties.

28.       If instead of a contractual charge, the claimant wishes to pose this additional sum of £60 as recovery of debt collection costs incurred, the claimant is put to proof that this sum was incurred. Given that the letters are merely generic templates from the claimant’s own ‘debt management team’, it is contested that the debt recovery stage could have cost the claimant £60.

29.       Furthermore, referring back to ParkingEye Ltd v Beavis [2015] UKSC67 (exhibit I), the Supreme Court allowed the £85 parking charge against Mr. Beavis because it “was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available” (para. 98).

30.       In this case however, the claimant wishes to charge a fee of £100 based on the authority of the Bevis case, but also add £60 for costs. This clearly constitutes double recovery, and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge); I refer to Excel vs Wilkinson [2020] G4QZ465V (exhibit H), a similar case in which £60 had been added to a parking charge. For the reasons set out above, the Judge asserted that such claims are “proceedings with an improper collateral purpose” (para. 41). Concluding:

 “The Claimant must be shown that including irrecoverable heads of loss in its claims has consequences otherwise I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases. Having regard to all elements of the overriding objective and the need for a sanction to be proportionate I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown.” (para. 43-43)

Leave to appeal was refused and that route was not pursued.

31.       After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others have since echoed Judge Jackson’s words and struck out dozens of cases.

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

32.       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.

thewait

Fruitcake said:

thewait said:

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?

Not if it is two people from one company and none from the other. It is neither a simple contract signed by both parties nor a validly executed document signed by two authorised people from each party.

Yes, the bigger point is that the PPC has not signed the contract and neither has the landowner, and there is no proof that Hallmark have landowner authority.

We still need to know the full name of the management company because we/you can't check if Tony Rutt and Sarah Willis are officers of their company, or persons with significant influence in their company registered at Companies House and therefore capable of or authorised to signing a contract with another party.

I forgot to add, I found the full company name, Hallmark Property Management Ltd and checked the CompanyHouse and couldn’t find either names under there.

https://hallmarkpml.com/contact-us/

Le_Kirk

2.         I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Statement of Defence.

Is it really. I thought it was a witness statement!

Coupon-mad

I think you said that you were living there before the PPC?  If so, say so and state you have primacy of contract and parking operators can't interfere with existing residents' rights.

Fruitcake

Para 21 should refer to Section 44 of the Companies Act, not Section 43.

You should split out the reasons why the alleged contract fails to comply with S 43, and separately, why it is not a validly executed document as per S44. You seem to have lumped the two together whereas I had already separated the two arguments out for you.

If you know the name of the landowner, you should quote it.

You should point out hat the name of the managing agent does not appear on the alleged contract, and no company of that name is registered at Companies House.

thewait

Hi all, just wanted to update you and thank you all for your support on this (especially Coupon-mad and Fruitcake). 

I attended the session yesterday and won! PCM didn't attend in person so couldn't refute any of my claims. The main points the judge ruled on was the fact that I was not provided enough time to unload my vehicle (pictures taken of my car only spanned a period of 3 mins) and as per my tenancy agreement, I was not blocking the road and I had an implicit right to be able to load/unload my vehicle. Jopson case reference was useful here.

Asked whether any of my other points were valid, he said he only needed to rule on those two points as they were sufficient for him to dismiss the claim against me. He also agreed for me to recover the maximum cost of £95 once I told him my monthly salary and the fact I had to use leave to attend in person. I got the sense billing for a few hours of prep work would have also been fine but I was fine with recovering the £95.

Thank you all again for your help, you guys provide an amazing service here so appreciate you taking the time to guide us!

Le_Kirk

Well done, a good outcome for you.