Virgin Active Solihull - legit overstay £100 charge

IamNotAllowedToUseMyName

Thanks. I'll have a ponder on that, typos mainly due to typing with 1 arm tied behind my back.

Coupon-mad

It will be fine and MET will throw in the towel within a fortnight anyway when they see it!

IamNotAllowedToUseMyName

More trouble for MET:

Dear Ian,

Thank you for your email. I have checked the assessment for Virgin Active from the Valuation Office website. It does not include car parking spaces in their assessment. So I need to find out if the car park has been rated in business rates. Therefore I will send our inspector to visit the site and find out more information. If this car park has not yet been rated, we will report it to the Valuation Office to bring it in and charge MET as the liable party.

Thank you once again for your email. We will investigate this issue in further.

Regards

Coupon-mad

It gets better!

4consumerrights

Coupon-mad wrote: »

It gets better!

Sure does - but the OP should not take his eye off the ball here and get distracted with other avenues of complaints to the extent that he misses the POPLA appeal deadline.

IamNotAllowedToUseMyName

4consumerrights wrote: »

Sure does - but the OP should not take his eye off the ball here and get distracted with other avenues of complaints to the extent that he misses the POPLA appeal deadline.

Got until 10th March, but thanks for the oversight!

The court case just mentioned elsewhere did seem to suggest tightening up the contact part, emphasising the penalty/deferent therefore unenforceable contract with reference to the judgement just given.

Next step is local Facebook group to stir up the local masses into revolt.

IamNotAllowedToUseMyName

I've asked this question of Virgin Active:

If a member has a signed contract which in part says that a member agrees to abide by the rules as published on the website, is the contract governing parking:

A) as described by rules 52 & 53 on the website?
as described by rule 52 only on the website - as 53 is struck out as it suggests an unlawful course of action and is therefore an unreasonable term.
C) Only as per the MET signage.
D) as in a or b above modified by the signs plastered all over the car park by MET which limit parking to 4 hours maximum regardless?
E) As per C or D modified by the signs on the entrance to the building which modify the terms further by suggesting members can stay as long as they want by giving their registration to reception?
F) As per E modified by the signs internally that ask people to use a computer system to enter their registration?

Is that worth adding to the appeal (expanded with the wording of the clauses for readability where appropriate)? I think it makes the point about an unreasonable contract. FYI the complete section of the club rules on car parking.

CAR PARKING

52. Our car parks (if your club has one) may only be used by Members, guests, and visitors while they are on Club premises. You may not leave your car in our car parks at any other time (for example, you may not leave it there following a Club visit while you go shopping elsewhere).

53. No unauthorised parking is permitted on Club premises. Where car parking spaces are designated for use by Members, cars must be parked properly in such spaces or they will be clamped and a fee may be charged (where applicable) for removal of the clamp.

Coupon-mad

Yep there is nothing to lose by adding more.

IamNotAllowedToUseMyName

Dear Sir

In submitting this appeal as registered keeper I do not accept the validity of the claim by MET, I am simply using the appeal as a method of minimising the harassment as MET have made it clear in their response to my complaint that they are not acting reasonably. Note that I also reject the suggestion that I am appealing on behalf of the driver.

In reading this appeal, please note that the driver was a member of the club and bound by conditions of membership, so you must consider that aspect in addition to questions of what contract may have been formed by signage.

My reasons for appeal are:
1. The charge is not a genuine pre-estimate of loss.
2. No contract with driver/Signs are not compliant with BPA code.
3. Putative contract terms are misleading.
4. No valid contract of enforcement with the landowners.
5. Not a valid invoice.

To expand on these points:


1. No genuine pre-estimate of loss

MET Parking Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require MET to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations 2008, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, and further, the landowner invites members to park all day (see attachments x & y) there is no loss to MET nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.'' Further, it is clear from the scale of the charge that the true intention of this is to be a penalty and is therefore unenforceable in contact law.


2. No contract with driver/signage not compliant with BPA OCP

MET have kindly provided a document that they claim represents the type and location of the signs on the VirginActive Solihull site. You will note that there is no alternative entry sign of suitable design, MET have simply placed their standard sign facing the entrance. This is not compliant with BPA guidance, as detailed the notice cannot be read safely on entry, yet the presence of a non-compliant sign indicates there is no physical difficulty in installation. As there is no prominent wording on entry to the site, there is nothing to guide a driver, especially a regular user of the club, that there was signage that must be read before entry into the club and therefore no contract could be formed.

To form a contact there must be a clear offer, consent and agreement on terms. Unlike the common situation, this is not a parking situation where the public are invited to park, instead the members have a context which already covers car parking. To make clear that there is no clear definition of the terms of a cognac between a driver who is a member, as I know to be the case here consider the following.

A member signs an agreement which has as one clause to undertake to abide by club rules. Rules 52 and 53 are of interest as they say:

CAR PARKING

52. Our car parks (if your club has one) may only be used by Members, guests, and visitors while they are on Club premises. You may not leave your car in our car parks at any other time (for example, you may not leave it there following a Club visit while you go shopping elsewhere).

53. No unauthorised parking is permitted on Club premises. Where car parking spaces are designated for use by Members, cars must be parked properly in such spaces or they will be clamped and a fee may be charged (where applicable) for removal of the clamp.

So we have established an understanding of the rules binding use of the car park. However, I would argue that as rule 53 refers to the now illegal practice of clamping it is struck out in its entirety. However, MET are suggesting that is not the signed contract that binds members, the mere act of driving onto the car park is sufficient to create a new binding contract.

So, I ask you what is a member's contract? Could you distil the wording based on the following?


If a member has a signed contract which in part says that a member agrees to abide by the rules as published on the website, is the contract governing parking:

A) as described by rules 52 & 53 on the website? (see “Virgin club rules.pdf” attached)
as described by rule 52 only on the website - as 53 is struck out as it suggests an unlawful course of action and is therefore an unreasonable term.
C) Only as per the MET signage (see “Virgin - car park notice.jpg” attached)?
D) as in A or B above modified by the signs plastered all over the car park by MET which limit parking to 4 hours maximum regardless
E) As per C or D modified by the signs on the entrance to the building which modify the terms further by suggesting members can stay as long as they want by giving their registration to reception? (see “Virgin - sign at entrance.jpg”)
F) As per E modified by the signs internally that ask people to use a computer system to enter their registration? (See “Virgin - notice at input screen.jpg”).
G) Some other variation dependent on the order the signs were read.

I think you would agree that it is a non-trivial question and therefore there is no clear offer, but I would suggest the answer is B as Virgin and the member have every opportunity to communicate and agree variations to a contract unlike a public parking arrangement on private land.


3. Putative Contract Terms Misleading

Having investigated the signs subsequent to the incident, I note the following:
a) The damages are claimed for exceeding a 4 hour maximum stay. As the notice is clearly for overstay (as the car is not identified to VirginActive or MET as part of the membership documentation it is clear that MET are not enforcing non-members staying less than 4 hours), MET are relying on the wording of the signs.
b) However, VirginActive have prominent signage inviting members to say as long as they wish both on the VirginActive web site and on the club entrance (see “Virgin - sign at entrance.jpg” for example) and further MET have provided VirginActive with a system for logging extended stay for members at no charge (see “Virgin - system at reception.jpg”) so it is clear that MET expects drivers to be able to stay longer than the maximum and drivers clearly will understand that they are allowed to do so in spite of the signs stating an absolute limit. When Trading Standards visited they identified no less than 16 signs within the club premises explaining the alternative parking system. Clearly, under Consumer Protection Unfair Trading Regulations 2008 contradictory and unfair terms are unenforceable and therefore there can be no breach as the time of stay clause must be deemed not to exist. To assert otherwise is to condone entrapment in this case.
c) There is no putative contract that insists on a successful registration by any system to allow extended parking. Note the wording of “Virgin - sign at entrance. jpg”.
d) Car parking is provided free with membership. In the event of an alleged breach, the charge must be reasonable. In this case, the charge represents approximately 3 months' membership fees for the driver which include the use of a wide range of sophisticated and expensive equipment with significant running costs with parking being a necessity to access the club being on an isolated site. Clearly, as the vast majority of members park without acquiring punitive charges, and have done for many years, the costs of an alleged minor infringement could not reasonably relate to the £100 figure, and no member would consider this a reasonable charge. As it is clearly disproportionate it must be considered an unfair term under Consumer Protection Unfair Trading Regulations 2008 and no reasonable person would accept such a term.


4. No valid contract of enforcement with the landowners

The VirginActive site is only part owned by VirginActive, some is leased - I believe this land is the extension car park where the car may have been parked. MET have made it clear in communication that their contract is with VirginActive. MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract.

I require MET to show the boundary of land they have acquired management rights with VirginActive which is freehold, any contract with the freeholder of the remaining land, and if they do not have such a contract, to show how they establish via the ANPR system whether a member is parking on land owned by VirginActive or on land owned by another party.

Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreements/contracts with the landowners (and not just a signed slip of paper saying that it exists). Witness statements do not provide the requisite proof that a valid contract is in place which grants MET the legal authority to pursue cases through the courts.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

5. Not a Valid Invoice

The original "Parking Charge Notice" is apparently an invoice for liquidated damages. Nowhere on the original notice is this suggested, the word invoice simply does not appear. Indeed this document is so obscure that MET have to explain what this document actually means on their letter of refusal (final paragraph page 1 and first paragraph page 2). The letter of refusal is not an invoice. MET are being deceptive and attempting to obscure the real nature of the invoice. MET cannot pursue an improperly presented invoice which does not clearly explain what it is. Under the Consumer Protection Unfair Trading Regulations 2008, the recipient of such an invoice is entitled to clarity as to what the speculative invoice is actually for.


Summary

Thank you for taking the time to read this appeal. I am sure you will conclude that MET have acted improperly in this case. I would ask that if you find fault with their case that you advise them to correct their business practices to avoid other members of the club being inconvenienced as nothing in this appeal need be specific to this one incident.




Yours faithfully



Ian Spencer

IamNotAllowedToUseMyName

Revised appeal. I'd appreciate any comments. If it is close enough I think I'll send it off today to avoid spending too much time fretting over detail. Spotted the x & y not corrected. ...and how did I miss cognac!