Virgin Active Solihull - legit overstay £100 charge

IamNotAllowedToUseMyName

I've just rejected a parking notice that my wife acquired using Virgin Active.

My wife has been a member there for many years, well over 5, and of course has a written contract with the club. Additionally there are terms and conditions on the main web site and there are notes about parking on the web site for this club.

The quick and dirty summary is that some time ago they delegated car park management to MET and they put up signs putting conditions on parking. My wife, as a regular user, never bothered reading the signs as they were surely not intended for her as a member, but for people who might otherwise be inclined to use the parking. However, my wife did have a chat in the sauna with another member who was ranting about a charge they'd received that he wasn't going to pay.

One day, my wife knew she would be overstaying and based on what she had picked up and saw on the web site, contacted reception. They then instructed her to use a machine to enter her details. My guess is that she cocked it up, in part because the software was rubbish and timed out and required several screens to be selected.

I have written a long rejection based on contradictory terms posted, useless registration system and an unreasonable charge for an extended stay in a free car park that she is entitled to use and simply failed to register correctly (there was no real loss from her failure to correctly use the system) and there being no notice about the mechanism to extend the stay (the sign simply states there is a 4 hour maximum). As registered keeper I also refused to name her as they could not show they had a valid contract.

I am quietly optimistic - and am the sort of person who will enjoy a good battle (secretly hoping that they will go to court so I can rip them apart!).

Anyway, to the point of the post. My wife has a written contract with VA which deals with parking as part of the conditions (amusingly one clause refers to clamping, so is unenforceable as it is clearly wrong). As she has already established a contract, can VA unilaterally amend the terms of her contract simply by posting a notice in the car park. I would say not. For a private members' club with a written contract, surely it is the case that it is an entirely different system and VA and their sub-contractors have other means to create a contract. It is also unfair for them to attempt to vary the terms of her contract simply by the placement of signs - she should clearly be able to reject the change in terms and conditions, and unlike a public car park, they have many different means of communicating with members to notify and change conditions of use of the club.

So amateur lawyers out there - what do you think? Do you think a court would uphold a change in terms and conditions via a signpost when the member has a pre-existing contract?

Coupon-mad

I think if the VA contract grants a parking space without conditions, it would be a worthwhile point alongside others, at Court (won't happen as you can win at POPLA* based on our advice). Loads of MET cases on here and I wrote a POPLA appeal for someone only the other day, which is on a thread on a recent page.


*I am presuming this was in England/Wales.

IamNotAllowedToUseMyName

I was wondering, especially for parking places where it is fairly trivial to contact the owners, whether it is also trivial to reject the terms of a contact established purely by the presence of a notice.

For example, if I wrote to A.N.Other, owners of a car park along the lines of

Dear Sir,

I am a member of your business and have a signed contract with you, which includes terms related to car parking. I recently noticed on parking at the site that you or your agent are seeking to unilaterally change the terms of our contract. I consider the terms as posted unreasonable and therefore I give you formal notice that I reject this alteration to our contact.

Or perhaps for a general car park that you use frequently, perhaps I could just write rejecting the unreasonable terms. Perhaps stating that if you are not stopped from entering the site that they are deemed to have accepted the terms of the contract as amended by the letter. As there would be no obligation to provide vehicle details, this might generate a whole new level of confusion as they could not relate the driver with the letter by anpr.

Coupon-mad

Plenty of people have done that and some have even threatened to take their Managing Agents to court in their own residential block of flats, if they don't butt out of their parking spaces! A guy even sued UKPC for trespass (claimed the cost of an injunction back) when they kept ticketing his car in his freehold space just because it was within a residents' car park they infested.

So you could say (if I have these details right):

Dear Sir,

I am a member of your business and have a signed contract with you, which includes terms related to car parking. I recently noticed on parking at the site that you or your agent are seeking to unilaterally change the terms of our contract. I consider the terms as posted unreasonable and therefore I give you formal notice that I reject this alteration to our contact.

I do not recognise any authority of MET, or other parking or other agent, to 'ticket' my vehicle when visiting the gym and I require my usual car registration xxxxxxxx to be added to an exempt list (I do not expect to have to register it each time I visit). If I use another car I will require that you arrange to immediately cancel any 'fake' (private) PCN issued, because to allow MET of another agent to persist would be harassment. I cite 'Davey v UKPC' 2012 as a persuasive county court decision and reserve the right to make a claim against the parking company and all signed parties to their contract, if I should be harassed about any 'parking charge notice' now that I have made my position clear.

Please confirm that these instructions have been noted and my usual car registration has been recorded as exempt from the ticketing regime with immediate effect. If the scheme was brought in by the Freeholder please pass a copy of this to them and ask them to respond to confirm same. I will not accept a unilateral change to the terms of my contract with Virgin Active, which has the potential to cause me detriment.

prowla

If I was a member of a club and got ticketed there, I would leave the club.

IamNotAllowedToUseMyName

prowla wrote: »

If I was a member of a club and got ticketed there, I would leave the club.

The trouble is that we get a massive discount there through PruHealth - even if we paid the £100 we would be better off than switching clubs - and it is the right club for what my wife likes to do.

However, without cutting off our noses, we are not averse to making life difficult in return, (without being rude). So opportunities like reviews on Facebook, mentioning the ticketing problem, their unenforceability and this forum, are being done.

Generally, these organisations spend millions on their public image, so using social media and the newspapers to embarrass them does work. Elsewhere, we had Sainsbury's who had land banked our town centre and announced that they were not going to build. We couldn't get rid of them, but they were embarrassed into changing their mind - a multi-million pound decision driven by a lady posting pictures on their Facebook page, catching the attention of local radio and national press.

I guess my point is that there is amazingly good work here in making the ticketing system fail for those who know, but clearly there is a lot of money in this scam, so it would be better to work out ways to collapse the system.

The danger of campaigning with politics to get the system further changed is that you end up with a system that works (for the operators).

The reality is that the guidance on charges will have been written by some London-based bureaucrat who sees £20 an hour car park fees in Central London and has thought that a £100 charge seems reasonable in that context (which for a genuine misdeed in a Mayfair car park, I'd accept might be justified). That this guidance exists and is used by scoundrels to frighten people into paying unfair charges is something that should be addressed. I guess the question is: if the car parking fine was £5 or so, would we accept it as a fair rebuke? £100 is clearly taking the p%ss.

I guess that what the companies should be forced to do have their pre-calculated losses audited by the car park trade body for each site, and if they can't justify them, then they can't use the signage. Given that they cannot get anywhere near the numbers that they claim, that would force these £100 blanket charges to be removed from the signs. Remove the high value of the scam charges, you remove the business model and these firms fade away.

For example, in a private club, I would say that the charge for going to DVLA would be unreasonable in the normal case because they can avoid needing the charge by simply requiring members to provide their car registration details to the club. Only when there is an unregistered car need they go to DVLA, and that then becomes a genuine cost incurred by the specific incident. This routine use of DVLA is unreasonable. (See, there is another letter of complaint).

Coupon-mad

For example, in a private club, I would say that the charge for going to DVLA would be unreasonable in the normal case because they can avoid needing the charge by simply requiring members to provide their car registration details to the club. Only when there is an unregistered car need they go to DVLA, and that then becomes a genuine cost incurred by the specific incident. This routine use of DVLA is unreasonable. (See, there is another letter of complaint).

Now that sounds reasonable in theory but PPCs can't get the data by this method (which is a good thing really because what if you'd sold the car to another member and the records still showed you as the owner on VA's list?). A PPC can only hold the keeper liable (potentially) if they have got the data for each parking event from the DVLA, each time.

nigelbb

IanMSpencer wrote: »

My wife has a written contract with VA which deals with parking as part of the conditions (amusingly one clause refers to clamping, so is unenforceable as it is clearly wrong). As she has already established a contract, can VA unilaterally amend the terms of her contract simply by posting a notice in the car park.

Contract terms cannot be added to or amended after the contract is agreed. There are several famous cases in English law that establish the principle e.g.
http://en.wikipedia.org/wiki/Thornton_v_Shoe_Lane_Parking_Ltd
http://en.wikipedia.org/wiki/Olley_v_Marlborough_Court_Hotel

In the case of a car park any T&Cs that are to be relied on must be at the entrance or at the point where the motorist agrees the contract for parking e.g. by the ticket machine There cannot be a separate board somewhere in the car park with other T&Cs.

IamNotAllowedToUseMyName

Coupon-mad wrote: »

Now that sounds reasonable in theory but PPCs can't get the data by this method (which is a good thing really because what if you'd sold the car to another member and the records still showed you as the owner on VA's list?). A PPC can only hold the keeper liable (potentially) if they have got the data for each parking event from the DVLA, each time.

But isn't that you falling into the mindset of the PPC, rather than what is reasonable for the general public?

However, you raise a good point that needs to be refuted: Why should a 3rd party acquire liability for this private contract breach just to keep a PPC happy?

Within a private arrangement, it is feasible to set up any appropriate binding contract, and therefore if there is a club member, resident, or employee abusing their contract, the idea that a registered keeper needs to be involved to settle liability is inappropriate. Note, I understand the principle for private car parks for general public use where an operator has limited ability to identify the user.

More generally, why should we tolerate private parking arrangements being settled by contract by signage underwritten in the knowledge that DVLA enables this lazy contract formation?

That is different from the need to use ANPR to detect non-member breaches where DVLA access is necessary and reasonable.

Anyway, written to DVLA. Given that they are public servants rather than tools of the parking industry, they might be inclined to adopt this view.

Guys_Dad

Things are not cast in stone and can change. It is how they implement changes that are the issue.

I can't help thinking you are barking up the wrong tree, for if they say "We are giving notice that we are changing the parking part of the contract. You are free to leave if you don't agree" as you concede, you would be cutting your nose off to spite your face.

So, appeal to the club, appeal to the PPC, then win at POPLA if you get turned down.

Keep the letters of appeal brief and to the point. In the end, you are no different from others who have had PCNs and we get them off.

IamNotAllowedToUseMyName

Guys_Dad wrote: »

Things are not cast in stone and can change. It is how they implement changes that are the issue.

I can't help thinking you are barking up the wrong tree, for if they say "We are giving notice that we are changing the parking part of the contract. You are free to leave if you don't agree" as you concede, you would be cutting your nose off to spite your face.

So, appeal to the club, appeal to the PPC, then win at POPLA if you get turned down.

Keep the letters of appeal brief and to the point. In the end, you are no different from others who have had PCNs and we get them off.

For sure, the more it gets pointed out that these contracts are broken, the more likely it is that the more reliable operators will correct the gross errors.

My strategy when I get annoyed with something like this is to create a spiders web of nuisance, don't just complain about one ticket, but get at the site management, the corporate management, any other organisations that might object to be tarnished by association. Then once I've gathered some facts, is time to harass my MP for being party to a Government that condones this nonsense.

If they put these things into an initial contact, they will lose new customers who would be appalled at such punitive contracts - and of course they can still be challenged as unfair clauses - his do you justify charges of two or three months membership fees simply for parking badly? So it is a case of generating enough pressure that the retail industry abandon these cowboys and leeches.