PCo used temporary address to obtain CCJ, when they had permanent one

Jenni_D

I think (post set-aside) it is recommended to file both a defence and a WS. (Even though the judge's ruling only mentions a defence to the original claim).

EwanHusarmee

Thanks @Jenni_D. I don't think we have enough time to do a Witness Statement before the 4pm deadline tomorrow. Should we just await the judges directions or submit one as soon as we have it prepared? 

Fruitcake

Submit one asap. It can't hurt, especially if you have not been instructed to submit one.

Coupon-mad

You can just copy from the two examples I linked for you already and it'll be done tonight.  This WS is different as it supports the defence and includes exhibits and the costs assessment.

EwanHusarmee

Coupon-mad said:

You can just copy from the two examples I linked for you already and it'll be done tonight.  This WS is different as it supports the defence and includes exhibits and the costs assessment.

As our main defence outwith the standard template is mental health, do we need anything other than a statement from his therapist in the exhibits? Also @Fruitcake mentioned some issues with the contract that was included in their WS (link on page 2), is it just the redactions?

Coupon-mad

Yes you need all the usual exhibits (see WS by @jrhys) and a link to, and wording about, the new Code of Practice (see WS by ricky_balboa).

Plus your mental health evidence.

This is contract law, so you must show the D can fight it on legal grounds as well as mitigation.

Fruitcake

Issues with the WS/contract (Service Agreement) : -

No map defining the boundary of the area they are contracted to manage.
No map defining the boundary of the car parks where the car was allegedly parked,
No map defining the location or boundary of the Restricted Area meaning no proof that the vehicle was within a restricted area.
No correlation between the close ups of signs and the precise position of the vehicles.
No readable signs in any of the photos that show the vehicle.

There appears to be a pink permit in some of the photos, but there are deliberately no close up images to prove this was not the correct permit for the specific location where the car was parked. (If this was a "medical permit" issued by the Uni because of the defendant's medical condition, then say so).


Redactions. See the Redactions in Disclosure thread by Johnersh, quote the Hancock vs Promontoria case he refers to, and quote the judge's comments. 

Redactions in Disclosure — MoneySavingExpert Forum

Contract Authority. Due to the redactions it is impossible to determine if the signatories had the authority to form a contract with another party in accordance with Sections 43 and 44 of the Companies Act 2006.

This is something I knocked up for another poster a while ago. Have a read and modify it as you see fit.

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.

Due to the redactions, the identities of the two signatories is not known. Had they had authority, there would have been no reason to redact the names. In addition, their positions within their respective companies has been omitted. It is therefore averred that neither party had express or implied authority to form a contract.

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 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.

 

This is an extract form a case where the judge stated one of the signatories didn't have the authority to form a contract.

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."

However, the judge may decide that the Uni must have known the PPC was on site, therefore the PPC must have had authority to operate there. 
Only include the parts about the Companies Act if you have time, because you have several much stronger points to use.

EwanHusarmee

3 months later we have received a Notice of Proposed Allocation to the Small Claims Track with the following
"TAKE NOTICE THAT

1. This is now a defended claim. A copy of the defence has already been sent to you by the defendant
2. It appears that this case is suitable for allocation to the small claims track. If you believe that the track is not appropriate....
3. You must by 4 July 2022 complete the Small Claims Direction Questionnaire (Form N180) and file it with the court office..."

A bit confused by the second part of 1 - as we are the defendant, but I assume this is the same form sent to both parties

There has been some movement from the PCo. First they wrote to say that " given the mental health of the defendant as set out in the defence, it may be that our policy will be to not enforce the PCNs if you can prove it. " We provided a letter from our son's therapist for which we were charged but have heard nothing since on the subject.

We have also received a settlement offer at a huge discount to the CCJ they initially obtained.

What are the best reasons to put in box D1 on the N180  to support having an in person hearing?

Do the PCo have to pay a new set of court fees?

Coupon-mad

A bit confused by the second part of 1 - as we are the defendant, but I assume this is the same form sent to both parties.

Yes it is.

How to fill it in (apart from the new questions) is set out in the NEWBIES thread.


"What are the best reasons to put in box D1 on the N180  to support having an in person hearing?"

See the thread by @Grizebeck this month.

Do the PCo have to pay a new set of court fees?


There will be a hearing fee that they must pay, if it gets that far. £25.