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Leaseholder - Fighting back
Camel_Landy
post Fri, 13 Jan 2017 - 19:44
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Hi All,

First post, so go easy on me please. wink.gif

I'm a leaseholder in a block of apartments where the tenants association have engaged the services of one of the 'usual suspects'. Over the past 18mths or so, I have been issued with a handful of PCNs and have received the usual intimidating letters demanding payment, despite me telling them I am a resident. However, a few months back, I told them I was a leaseholder and since then it has gone quiet.

Quiet... Even to the point where they have ignored my requests for them to confirm they have no further claim against me.

So, I now want to take the fight to them.

Before I carry on too far, some things to note:

  • The parking company have been brought in by the Tenants Association.
  • The property management company has no involvement and have no wish to get involved.
  • The Tenants Association have refused to get involved, saying they don't want to get involved with parking disputes.
  • Parking on-site is on a 'first come, first served' basis. i.e. There is no allocated parking.
  • There is no mention in the lease regarding parking, let alone allocated parking!!


I've been doing some reading & searching to see what's possible and here are some questions:

  • Can I force them to confirm they have dropped their claims against me?
  • Can I get them removed from site?
  • Can I go for compensation and counter claim against them?


I have also just noticed the DPA/DVLA 'thing'... Now that interests me too as I'm already engaging with them on the DPA front anyway.

...and on top of all that, there are a couple of other little 'twists':

  • The parking management company filed an 'appeal' without my knowledge.
  • All of this has been happening while going through a divorce.


Regards,

CL
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nosferatu1001
post Mon, 21 Aug 2017 - 16:54
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That's my understanding anyway - worth having a printout anyway!
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bargepole
post Mon, 21 Aug 2017 - 16:55
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QUOTE (nosferatu1001 @ Mon, 21 Aug 2017 - 16:58) *
It means
IF that person turns up they're not authorised to conduct litigation. They need someone else along with them. So you raise the matter that they have no,right of audience, and should be excluded from the hearing. That means they don't have anyone here and should lose.


That's not correct. They do have a Right of Audience, but must be instructed by a Solicitor who has conduct of the case.


--------------------
We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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nosferatu1001
post Mon, 21 Aug 2017 - 16:58
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Thanks for correcting as ever !
So does that mean physically present with them?
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bargepole
post Mon, 21 Aug 2017 - 17:15
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QUOTE (nosferatu1001 @ Mon, 21 Aug 2017 - 17:58) *
Thanks for correcting as ever !
So does that mean physically present with them?


No, that would only apply to the Solicitors' Agents / Unregistered Barristers who often appear in parking cases.

Provided that all the steps of conducting litigation - issuing of claim, filing of witness statements etc., has been carried out by a solicitor, a registered barrister (which this is) can then be instructed to appear as the advocate in court.


--------------------
We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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SchoolRunMum
post Mon, 21 Aug 2017 - 17:33
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QUOTE (cabbyman @ Sun, 20 Aug 2017 - 18:45) *
"15. lt is the Claimants contention that the Defendant could readily have avoided each PCN, simply by displaying their permit correctly. The Claimant believes the Defendants conduct to be vexatious. The Defendant is an active member of an internet 'group'; http://forums.pepipoo.comlindex.php?showtopic=111107. The sole purpose of this consumer group is to assist motorists in avoiding liability for matters such as this. The Defendant has had ample opportunity to appeal against each PCN but has chosen not to do so."

I'm probably far too late for this but I would suggest a response along the following lines:

The claimant fails to understand that its own inability to adhere to appropriate legal requirements necessitates the existence of such consumer groups who have, indeed, highlighted to me the unreasonable demands of the claimant from the outset.

Just a thought. smile.gif



Just to add for court tomorrow, if 'White Lists' get an airing (if not, you should air it because it would avoid PCNs for residents) you can say:

To balance the argument put forward by the Claimant's barrister using mere (unsupported) opinion to dismiss ''White Lists'' at 15 of the SA., it is the Defendant's contention that the Claimant themselves could readily have avoided each PCN.

It is disingenuous to paint a picture to the court of a 'White List' being cumbersome. It is the opposite, and (despite the Claimant not liking the idea, since it would restrict the number of penalties they could issue) it would be the fairest way to deal with genuine, authorised residents' cars.

Rather than residents displaying permits which can slip down, overturn or be mislaid, it would have been simple and good business practice to create a database, or a “White List” which is used in many car parks (particularly to exempt staff cars in retail car parks). Far from being 'laborious' it is an automated and immediate way to exempt any vehicle because the employee uses a hand-held machine which is linked to the VRN database and will not allow a ticket to be generated to an exempt vehicle.

Since the Claimant only makes money from penalties, it follows that they are undoubtedly incentivised to issue tickets, so this Claimant seems content to issue them even to residents who are clearly seen as fair game at this location, as they were by the same Claimant in Jopson.

There can be no 'legitimate interest' in treating and charging residents as if they are a trespasser when this is avoidable. The Claimant merely not liking the idea of an automated White List, is not a reason to dismiss that simple remedy to avoid a breach of the Consumer Rights Act 2015 by causing significant imbalance in the rights of the residents, to their detriment.


Consumer Rights Act 2015

Provisions relating to unfair terms are contained in Part 2 Consumer Rights Act. According to S.61 - Part 2 CRA 2015 applies to:

1. Consumer contracts between a trader and consumer
2. Consumer notices between a trader and consumer

s.62 (4) A term or notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
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SchoolRunMum
post Mon, 21 Aug 2017 - 17:47
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I also like the way the barrister has dismissed the idea that there is no offer made by the signs.

One look at your post #55 proves it, surely?

There is no offer of parking without a permit - it's a mess and the largest signs say 'no parking'. The Claimant's signs are nothing like the clear and prominent terms that the Supreme Court Judges lapped up in Beavis. Have you got the Beavis sign in your bundle by way of comparison?

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbC...%2Bsign_001.jpg

If the Judge doesn't like some of your arguments, this one has simpler legs...there are simply no contractual terms offered, no consideration flows from the Claimant for people without a permit. There could be if they worded the signs well. Their failure.
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SchoolRunMum
post Mon, 21 Aug 2017 - 17:47
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duplicate post deleted

Good luck tomorrow!

This post has been edited by SchoolRunMum: Mon, 21 Aug 2017 - 17:48
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bargepole
post Mon, 21 Aug 2017 - 18:04
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The case tomorrow will be heard by Deputy District Judge Iacopi.

Profile here: http://www.ipsllp.co.uk/legal-team

Not sure if she's heard many parking cases before.


--------------------
We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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Camel_Landy
post Mon, 21 Aug 2017 - 19:18
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Thanks all...

...we'll see how I get on!!

CL
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Dub_cat
post Tue, 22 Aug 2017 - 10:09
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QUOTE (bargepole @ Mon, 21 Aug 2017 - 19:04) *
The case tomorrow will be heard by Deputy District Judge Iacopi.

Profile here: http://www.ipsllp.co.uk/legal-team

Not sure if she's heard many parking cases before.


she appears on Parking Prankster and seems clued up on contracts having favoured the defendant in a recent residential parking case - even awarding costs! Fingers crossed for CL!

break a leg!!
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Camel_Landy
post Tue, 22 Aug 2017 - 15:22
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OK... Quick update:

It was a long session, with only a partial partial success. I was found liable for £240 + £100 costs instead of the £1,520.80 of the original claim.

...and yes, she did appear to be clued up.

Firstly, it would appear my lease isn't as clear cut as the modern leases. I'm guessing it's down to the age of the property but essentially my lease does not explicitly state I have a right to parking. Therefore, I have no parking rights for them to interfere with.

Then there was no evidence of legal status, of landowner, MA, TA, etc...
...however, in the contract between PPC & TA there was the clause:

QUOTE
You give us the company permission (or if you are not the freeholder of the premises, you agree that you are responsible for obtaining permission of the freeholder if needed and that we can rely upon you having done so) to install, inspect, maintain and keep our system and service at the premises as defined in the area, without charge to the company. You confirm that if you are not the freeholder, you are the owner of a lease not less than the length of the contract plus 30 days as outlined in schedule 3.


It would appear this indemnifies the PPC and gives them the right to charge. ohmy.gif

We then continued through the other points of the SA.

The judge wasn't interested in the contractual details, wording of signage, forbidding signage, etc... essentially she was of the opinion that on a site like that, you expect to have to display a permit. (Well, that's what I took from it...)

However, the points she did pick up on were:
  • Photographic evidence.
  • PoFA
  • The incorrect amounts claimed.

Within their photographic evidence, you could see the permit in a number of their photos. I had seen it in 2x of the PCNs but as she had better quality images, she noted its presence in 2 other PCNs. She dismissed these 4x PCNs as the permit was actually on display, even though you could only see a tiny bit of it in the photo.

The judge felt that despite me mentioning "I parked in a communal area" on my 'Statement of Defence', the PoFA still applied. Unfortunately, they had produced a compliant NTK, so she couldn't dismiss the claims completely. However, as the NTK stated £60 and not the £100 (or even the £160 on the claim form), the judge ruled the charge on these PCNs should be for £60.

As nice touch was in her summing up, the judge described their actions as "Predatory". The other side wanted to appeal that point to which she clearly stated "No". biggrin.gif

So... What now?
  • Do I appeal, don't I??
  • How to clear up the parking status on site?
  • Next steps with the ICO and the DPA breaches?

...and finally a BIG thank you to everyone on here for your help. cool.gif

CL
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Camel_Landy
post Tue, 22 Aug 2017 - 15:34
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...it's interesting to see some of the 'unidentified-lurkers', with no posts to their name, straight in there for a read of my update. wink.gif

CL

This post has been edited by Camel_Landy: Tue, 22 Aug 2017 - 15:36
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SchoolRunMum
post Tue, 22 Aug 2017 - 15:36
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QUOTE
It was a long session, with only a partial partial success. I was found liable for £240 + £100 costs instead of the £1,520.80 of the original claim.

The judge felt that despite me mentioning "I parked in a communal area" on my 'Statement of Defence', the PoFA still applied. Unfortunately, they had produced a compliant NTK, so she couldn't dismiss the claims completely. However, as the NTK stated £60 and not the £100 (or even the £160 on the claim form), the judge ruled the charge on these PCNs should be for £60.

As nice touch was in her summing up, the judge described their actions as "Predatory". The other side wanted to appeal that point to which she clearly stated "No".


Do you know, this was a difficult case as I was saying to bargepole last night - but that almost feels like a win!

QUOTE
Do I appeal, don't I??
Only if she erred in law...reads to me like she bent over backwards to help you!

This post has been edited by SchoolRunMum: Tue, 22 Aug 2017 - 15:37
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Camel_Landy
post Tue, 22 Aug 2017 - 15:46
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QUOTE (SchoolRunMum @ Tue, 22 Aug 2017 - 16:36) *
QUOTE
It was a long session, with only a partial partial success. I was found liable for £240 + £100 costs instead of the £1,520.80 of the original claim.

The judge felt that despite me mentioning "I parked in a communal area" on my 'Statement of Defence', the PoFA still applied. Unfortunately, they had produced a compliant NTK, so she couldn't dismiss the claims completely. However, as the NTK stated £60 and not the £100 (or even the £160 on the claim form), the judge ruled the charge on these PCNs should be for £60.

As nice touch was in her summing up, the judge described their actions as "Predatory". The other side wanted to appeal that point to which she clearly stated "No".


Do you know, this was a difficult case as I was saying to bargepole last night - but that almost feels like a win!

QUOTE
Do I appeal, don't I??
Only if she erred in law...reads to me like she bent over backwards to help you!

Noted... Thanks. smile.gif

M
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Lynnzer
post Tue, 22 Aug 2017 - 16:49
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If no appeal is made, and I wouldn't bother having won the majority of the case, then you could go onto the attack.
Where the judge dismissed the cases for there being a permit on display you could go for a claim for damages for breach of the DPA.

I also note that the display of a permit is enough to get any action dismissed so I'd continue parking but just put the permit in the windscreen each time and hope they ticket you again. More BPA breaches.


--------------------
The Asda shopping trolley parking ticket enthusiast
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SchoolRunMum
post Tue, 22 Aug 2017 - 17:53
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Use some Blutack to secure the permit so they can't target you and rock the car.
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henrik777
post Tue, 22 Aug 2017 - 19:44
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QUOTE (bargepole @ Sun, 20 Aug 2017 - 09:42) *
QUOTE (Camel_Landy @ Sat, 19 Aug 2017 - 23:24) *
I have drafted a SA and could do with some feedback.

Also, should I be referring to myself in the third person in the SA??

Cheers,

CL


QUOTE
I am [xxxx] of [xxx], [xx], defendant in this matter.

The claim is denied in its entirety. The Defendant asserts that the Defendant is not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

The main points being:

i. Claimant cannot interfere with the terms of the Defendant’s lease
ii. The Claimant has no claim to the land and therefore no standing to bring a case.
iii. Lack of contract
iv. The Unfair Terms in The Consumer Rights Act 2015 applies.
v. Forbidding and Confusing signage
vi. Defendant was parked as per the terms of his lease, therefore no cause to approach the DVLA.
vii. Incorrect amounts claimed
viii. Claimant avoided ADR.

Additionally:

ix. PCN1418886a – No Notice to Keeper
x. Claimant’s photographic evidence shows permit on display.

i. Claimant cannot interfere with the terms of the Defendant’s lease
1. The Defendant’s lease has primacy and within that lease there is nothing stating the Defendant has to abide by the Claimant’s terms and conditions for parking on an estate his lease provides unfettered access to. There have been a number of recent examples where parking companies have attempted to override the rights of the leaseholder and failed:

2. Pace v Mr N – [Reference] In the opening paragraph by District Judge Coonan: “I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.”

3. Jopson v Home Guard Services – [Reference] Whilst this case is not strictly regarding parking, it is regarding the leaving of a car whilst unloading. It is a persuasive case as, in the Court of Appeal, Home Guard (the Claimant in this case) was told they were unable to override the terms of a lease and to issue a charge for parking.

4. Even if it could be shown the Claimant could interfere with the terms of the Defendant’s lease, the case of Saeed v Plustrade Limited [Reference] showed that parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well known and well established principle that “a grantor shall not derogate from his grant”.

ii. The Claimant has no claim to the land and therefore no standing to bring a case.
5. There is no chain of contracts between the Landowner and the Claimant. The Claimant is put strictly to proof that there is a chain of contracts between themselves and the landowner (Cromwell Business Centre Management Limited).

6. The Claimant is attempting to rely upon First Schedule, Clause 9, [Reference] which states “observe all regulations made by the Lessors from time to time relating to the parking of such vehicles”. This clause specifically states “Lessors”, it does not state “Lessors or their Managing Agents”. This is not an omission or up for interpretation as First Schedule, Clause 4 shows where this distinction has been made, stating “Lessors or their Managing Agents”.

7. The Claimant has not been instructed by the Lessor to manage parking on site, therefore they do not have any interest in the land and therefore the Claimant lacks the capacity to offer parking.

iii. Lack of contract
8. The Claimant is not in a position to offer the Defendant a contract. The Defendant already has the unfettered right to park anywhere on the estate, therefore the Claimant has no ‘Consideration’ to offer. The elements of ‘Offer’, ‘Acceptance’ and ‘Consideration’ both ways cannot be satisfied and therefore no contract can exist.

iv. The Unfair Terms in The Consumer Rights Act 2015 applies
9. Even if the Claimant had the authority and capability to issue a charge for parking on the property, the contract would be unfair under the terms of The Consumer Rights Act, Part 2 – Unfair Terms.

10. Section 72 “The Application of rules to secondary contracts” states:
(1) This section applies if a term of a contract (“the secondary contract”) reduces the rights or remedies or increases the obligations of a person under another contract (“the main contract”).

11. The Claimant is attempting to impose upon the Defendant, unreasonable and onerous new obligations by demanding the Defendant displays a ‘permit’ to park and that the Defendant pays a charge to the Claimant for any failure to do so.

v. Forbidding and Confusing signage
12. The signage the Claimant is relying upon for making the offer of their contract is both forbidding and confusing. The Defendant has provided pictures [Reference], which show the signage on site. It is clear the signage is both confusing and forbidding, and its existence waters any claim of authority by confusing the situation.

13. The Claimant’s signs on site offered parking to “Vehicles fully displaying a valid permit”. Therefore if vehicles are NOT displaying a valid permit, there is no offer of a contract. It is a forbidding sign that cannot create a contract and therefore there was no offer of a contract of parking made.

14. The Claimant’s lack of diligence of performance of their contract with the Cambray Court Tenants Association by getting these other signs removed is none of the Defendant’s concern.

vi. Defendant was parked as per the terms of his lease, therefore no cause to approach the DVLA.
15. The Defendant’s vehicle was parked under the terms of his lease, therefore the Claimant had no cause to approach the DVLA for the Defendant’s personal details. The Claimant should therefore not be in the position to benefit from a wrongdoing. (Ex turpi causa non oritur action)

vii. Incorrect amounts claimed
16. The court paperwork submitted by the Claimant states the claim for a charge of £160 for each PCN. The Claimant’s paperwork states [Reference] the PCN is for £60. Within the paperwork, it further states “£100, reduced to £60 if paid within 28days”. Therefore, the Claimant’s claim of “£160” for each PCN is clearly wrong.

viii. Claimant avoided ADR
17. As demonstrated in the Defendant’s letter [Reference], the Defendant attempted to approach the Claimant to request ADR. This and other approaches were ignored, contrary to the guidelines in the Practice Direction.

18. The suggestion from the Claimant they offered ADR by means of their ‘appeals’ process is rejected as this process is not independent and is well known to be heavily biased in favour of the parking management companies.

ix. PCN1418886a – No Notice to Keeper
19. The Claimant has never issued a Notice to Keeper for the charge ref: PCN1418886a, therefore PCN18886a should be cancelled.

x. Claimant’s photographic evidence shows permit on display.
20. The Photographic Evidence, as supplied by the Claimant [Reference] shows the ‘Permit’ on display in the Defendants vehicle. It is either on display or it isn’t. There is nothing in the Claimant’s contract stipulating exact placement or orientation of the permit. Therefore charges for PCN1418969 and PCN1418303 should be cancelled.



It is standard practice to write SAs in the third person. You should also lose this bit "I am [xxxx] of [xxx], [xx], defendant in this matter." That would be the introduction to your Witness Statement. This document should simply be headed "Skeleton Argument".

The reference to " The Unfair Terms in The Consumer Rights Act 2015" is confusing, the title is simply The Consumer Rights Act 2015. As you have correctly identified on the next line, Schedule 2 deals with Unfair Terms.

When citing authorities, it is conventional to italicise the case name, such as ParkingEye Ltd v Beavis [2015] UKSC 67.

This bit is wrong "Ex turpi causa non oritur action" it's actio, not action. Or, as one solicitor put it while we were discussing a case in the court waiting area, "A dirty dog gets no dinner from the court".

You could perhaps round it off with a concluding paragraph, along the lines of "For any or all of the reasons stated above, the Claimant's case has no lawful foundation, and the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such witness costs as are permissible on the small claims track, pursuant to Civil Procedure Rule 27.14"

Otherwise, very well written.


https://www.biicl.org/files/2223_skeleton_a...ments_guide.pdf

STRUCTURE AND CONTENT
19. Heading – “Skeleton argument on behalf of......." Three vital words which are
often omitted. It is rather important for the court to know whose skeleton it is,
and it is not always immediately apparent from the text. If this is a case in
which it is likely that several skeleton arguments will be submitted, number
them: “First Skeleton Argument of the Defendant (“John Brown”). In that way,
the judge can keep the skeletons in date order and immediately find the one
he wants to look at.
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FaeLLe
post Thu, 31 Aug 2017 - 20:16
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While I have nothing to add, this thread was a beautiful read and I stayed up till 2 AM to read the entire thread!
Surely taught me a lot about English law.

This post has been edited by FaeLLe: Thu, 31 Aug 2017 - 20:19
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