EXCEL claim, Admiral staff car park in Swansea

Loadsofchildren123

I'm back with a new one. Again not mine, but I am helping the driver/RK.

The carpark no longer exists - it is now having flats built on it. It was one of 2 staff car parks at Admiral, where the driver/RK worked. There is now only one carpark. I am posting links to the sign (this is the sign now on display in the 2nd carpark, and we are assuming it is the same as the ones displayed in the other carpark, but if anyone reading this can shed light on that, that would be helpful). Also a link to the t&cs on the back of the permit, and an extract of the LBC which is wrong at law, aimed to pressurise unknowledgeable LiPs and is giving me the rage. [edit: I skim read it and am probably getting over excited because to be fair it does say that this only happens if you don't pay it....]

Facts:
Driver/RK no longer works at Admiral, but did at the relevant time.
2 PCNs, both 2013.
Employees have to apply for a staff carpark permit: there is a waiting list. Parking is not first come first served, and whilst you are not given an allocated space, the same number of permits as there are spaces are handed out.
When you reach the top of the list (which only happens as other permit-holders leave or for some other reason no longer want a permit and hand it back) you get offered a permit and have to pay £50 pcm which is deducted from you salary at source.

I say this is a the point at which a contract is formed, when you are offered the permit and accept it, and the consideration flowing from Admiral is the parking and from the driver is the £50 pcm.

The permit is given to you with a plastic windscreen display pocket, rather like the old ones used for tax discs. This has on the back of it t&cs.
The PPC named on there is Excel.
In the carpark there are signs which name VCS - am posting a link to the wording.

There are 2 separate claims for 2 tickets:
1. the stupid plastic display envelope was not fit for purpose and fell off the windscreen and onto the dashboard. The attendant would have been able to see it, but the only photo PPC has provided is taken from an angle where you can't see it. Driver didn't think to take her own photo.
2. Most of the carpark was tarmac with marked areas. But there was part of it that was rough chippings and not marked. This area held several cars. People would park there when there wasn't any space on the tarmac - this was a daily occurrence. On the day in question, this is where driver parked and got a pcn.

Proceedings have been issued in name of Excel, not VCS which was named on the signs, but Excel was named on the T&Cs on the back of the permit.

Any thoughts?

Loadsofchildren123

permit t&cs:
https://www.dropbox.com/s/vbade4xugd4vhbl/IMG_0307.JPG?dl=0

sign:
https://www.dropbox.com/s/c80dge9voe1adkc/IMG_0308.JPG?dl=0

LBC extract:
https://www.dropbox.com/s/xwxhhag7zisuh06/LBC%20extract.jpg?dl=0

Loadsofchildren123

Driver asked Admiral to intervene: they refused

Loadsofchildren123

My points, in no particular order:
1. Wrong Claimant - signs said "you are entering into a contract with VCS" (in spite of the T&Cs mentioning Excel) - but I say there was never any contract with VCS or Excel, but with Admiral and therefore there's a primacy of contract argument.
Notwithstanding if there is a contract with VCS/Excel:
2. Stupid plastic display envelope not fit for purpose, they have breached their obligations to the permit holder. It fell off when she wasn't even in the car.
3. She was paying £50 for a parking space. Not the hope of parking, on a first come first served basis. They had an obligation to provide her with a space. Even if she was obliged to display her permit, she did and it is not her fault that their rubbish plastic windscreen pocket was not fit for purpose and fell off.
4. Lots of cars parked every day on the gravel area and she was displaying a permit on that day (I think - but if not, then ditto 2 above). Nothing saying you have to park in a marked bay in the signs or the permit T&Cs. I've seen a permit, it has a reg number on it - so the PPC must have a record of all permit-holders' reg numbers so must have been aware that she was a permit holder.
5. Reasonable endeavours were taken to display the permit.
6. Usual arguments re double recovery re added in charges.
7. Confusion over which document contains the T&Cs, the permit or the signage.


My plan:
1. Write LBC to Admiral saying that she is going to join them as a party and claim against them, they are in breach of their contract with her to provide a parking space in return for £50 pcm. They must have the power to get pcns issued to genuine permit holders and cannot simply wash their hands of the matter. She had given them her car reg number so they were aware that this car belonged to a permit holder.
2. Write to BW Legal making the points, asking them for the contractual documentation and all photos and invite them to withdraw, and also jump up and down criticising them for issuing 2 claims on the same day: this is a waste of costs for which she cannot be liable. There obviously should have been just 1 claim for the two pcns.

I didn't make it clear in my OP, but she ignored everything - she will say she was assuming that Admiral would get them cancelled.

Loadsofchildren123

If there are any other posters who have evidence of the signage or have been involved in a dispute over the same car park, that would be very helpful!

Coupon-mad

you get offered a permit and have to pay £50 pcm which is deducted from you salary at source.

I say this is a the point at which a contract is formed, when you are offered the permit and accept it, and the consideration flowing from Admiral is the parking and from the driver is the £50 pcm.

I agree. No contract with Excel or VCS because the bargain has already been concluded between Admiral and the employee.

And there is nothing at all about a £100 parking charge in those permit T&Cs anyway.

The PPC named on there is Excel.
In the carpark there are signs which name VCS

Sounds very like the Albert Street Birmingham arrangement where they always discontinue, like the poster from here who was assisted by the BMPA and referred to me (a case you know about from an update this week). A letter from the defendant to Excel got that one discontinued just before the hearing and it was written in this style:

http://parking-prankster.blogspot.co.uk/2017/03/bw-legal-discontinue-albert-street-claim.html

Sorry I have no personal knowledge of this car park in your contact's case. Maybe someone else will see this who does. But I reckon they will discontinue when push comes to shove.

LBC extract:
https://www.dropbox.com/s/xwxhhag7zisuh06/LBC%20extract.jpg?dl=0

Very misleading. I hate the bit that says 'if the IAS have declined an appeal it is likely a court would find the same'. Utter rubbish, as we know.

Lamilad

There are 2 separate claims for 2 tickets:

Are the alleged contraventions 'not displaying a valid permit' or 'not parked in a marked bay'? Or is it one of each?

Wrong Claimant - signs said "you are entering into a contract with VCS" (in spite of the T&Cs mentioning Excel) - but I say there was never any contract with VCS or Excel,

How on earth can this possibly form the basis for a valid contract in law? Utter nonsense, although seeing that BWL are involved (via the LBC) it's no surprise.

Can't imagine this ever seeing the inside of a court room, and if it did it would have to be DJ Fruit-Loops in the chair to find for the claimant.

Loadsofchildren123

Nope, both letters say failure to display permit, so same facts (although she thinks that one might be from when she parked on the gravel, but isn't 100% sure). At DQ stage I'll ask for them to be joined together.


We've found another employee who is in the same position: Excel are proceeding (but as we all know on here they will proceed at least initially just to try it on).

bargepole

This is the wording I used in a similar case, which was discontinued by the Claimant after the Witness Statement / Skeleton had been served:

The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. This fact can be confirmed by reference to the images contained in the Claimant’s bundle. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. VCS were not a party to such a contract, and therefore cannot sue on it.

Loadsofchildren123

Thanks bargepole, much obliged.


This is the letter I intend to send to BW, any comments appreciated:


I have received the above claims from the County Court Business Centre.

I intend to defend the claims and I invite you to withdraw them at this early stage, before costs are incurred by me in defending them. I believe they are baseless and misconceived and are bound to fail.

At the time in question (17 April and 25 June 2013) I was employed by Admiral. As an employee I was entitled to apply for permission to park in the staff car park. Such permission was granted to me after my employment started, and in return I paid Admiral £50 per month for the parking, deducted at source from my salary. I had understood that as I was a permit-holder I would not be charged and that Admiral would speak to you to arrange for the PCNs issued on 17 April and 25 June 2013 to be cancelled.

It is therefore the case that I entered into a contract with Admiral in respect of the parking. The contract did not include any obligations, other than (on Admiral’s part) to provide me with a parking space and (on my part) to display the permit I was subsequently given (not in any specific, prescribed manner) and to pay £50 per month. There was no reference whatsoever in the agreement with Admiral that I would be penalised in any way, including the payment of any charges, for failing to comply with the terms of the agreement, and there was no reference whatsoever to complying with further terms and conditions imposed by your client.

After entering into the contract with Admiral, I was given a parking permit and a plastic pocket to use to display the permit in my windscreen (“the windscreen pocket”). The permit bore my car registration, which I had provided to Admiral.

On the rear of the windscreen pocket were what purported to be terms and conditions, in very small lettering, which referred to the parking and how the permit should be displayed, with a vague reference to “charges” for any breaches. They referred vaguely to further terms and conditions displayed in the car park. At the foot of the rear of the windscreen pocket is your client’s name, Excel Parking Services Ltd, and the company registration number, and a helpline telephone number. There was no reference anywhere in the wording to the creation of a contract between Excel and the holder of the permit. By the time I received the permit I had already entered into the contract with Admiral for it to provide me with a parking space in return for £50 per month.

As for the signs in the car park, these were clearly aimed at discouraging non-permit holders from parking there (the clear intention of your engagement by Admiral to manage the car park), and made reference to a different company, Vehicle Control Services Limited. The wording states “By entering into this private land you are entering into a contract with Vehicle Control Services Ltd” and then in large, contrasting lettering there are the words “Valid Permit Holders” followed by wording that those parking on the site must display a valid permit and those not doing so “agree to pay the Parking Charge” of £100. At the foot of the sign are the details of VCS Ltd (registered office and company registration number).

All of this clearly demonstrates that I cannot have entered into any contract with your client. I ask you to consider the above and respond to the following points:

• I had already been granted the right to park by the party in control and occupation of the land, namely Admiral Group Plc. Your client, a third party with no relationship to me, had no legal locus to amend, alter, add to or limit those rights by imposing new or further contractual terms on me.
• No contractual terms were ever “offered” to me by your client (or for that matter by VCS Limited), and I never accepted any contractual terms that may have been “offered”. No consideration flowed either from your client to me, or from me to your client. I already had the right to park granted to me by Admiral Group Plc. The three elements required for the formation of a contract (offer, acceptance, consideration) are therefore completely absent.
• In any event, the terms and conditions which you client seeks to impose upon me (set out on the back of the windscreen pocket) fail to define the “charge” that could be imposed for any failure to comply with them. The “charge” is defined in the signage, which states specifically that any contract created is between the driver and Vehicle Control Systems Limited (your client being Excel Parking Services Limited).
• The “contract” allegedly offered by the signage (and which did define the parking charge) was offered by Vehicle Control Systems Limited (Company No. 04298820), not by your client, Excel Parking Services Limited (Company No. 02878122). The two are completely different legal entities. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between VCS and me – Excel was not a party to such a contract, and therefore cannot sue on it. For the avoidance of doubt, I reiterate that I deny the formation or existence of any contract.
• To the extent that I was obliged to display the permit given to me by my employer (and it is denied that there were any such specific terms), the requirement must have been reasonable and capable of being complied with. The windscreen pocket was not fit for purpose because it fell off the windscreen while the car was unattended. I used all reasonable endeavours to comply with it by displaying the permit in the windscreen pocket (if there was any such specific obligation, which I deny). When I left the vehicle, the windscreen pocket was in situ. The fact that it fell from the windscreen was completely out of my control and not because of any act or omission on my part, and I could not have done anything more than I did to comply with the obligation your client relies upon to bring its claim.
• On the dates in question, although the permit was not displayed by being stuck on the windscreen in the windscreen pocket, it was in fact clearly visible on the car’s dashboard, where it had fallen.
• Your client could easily have checked with Admiral to see if I was a valid permit holder: Admiral held my registration number which was recorded on my permit. The intention of any agreement between your client and Admiral was quite clearly to prevent unauthorised parking, not to penalise genuine permit holders for events which were out of their control.
• You have issued two separate claims, on the same day, but in which the facts and the cause of action are identical. This is a waste of court time and resources and a waste of costs. There should have been only one claim and one set of costs incurred.
• Your client has added in costs/administrative charges which are not defined in any contractual document: there is simply a vague reference to these on the signs in the car park. For any contractual term to be capable of acceptance, it must be certain and clear.

I invite your client to withdraw its claims before further costs are incurred by me in dealing with them.

If your client will not withdraw, then I ask for your response to the matters above and for the following documents:

• The contract (or chain of contracts) between your client and Admiral Group Plc giving your client authority to carry out parking management and on what terms;
• Any and all photographs taken of my car on 17 April and 25 June 2013;
• A copy of any document your client asserts sets out the terms of the alleged contract between it and me (this may be the same as 4 below);
• A copy of the signs on display and a plan of where in the car park they were displayed on those dates;

These are core documents, central to your client’s claim. As such, they are documents which should have been produced at an early stage (regardless of whether or not I asked for them) in the pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct. The contract requested under 3 above should have been appended to your client’s Claim Form according to Practice Direction 16 (which accompanies Rule 16 of the CPR) - if the contract is claimed to be written, the Claim Form must include a copy of the document constituting the agreement (paragraph 7.3(1)), or general conditions (paragraph 7.3(2)), or if the agreement is said to have been created through conduct the particulars must specify the conduct relied on, and by whom, when and where acts relied upon were done (paragraph 7.5). Your client’s Claim Form does neither.

I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to the Claims, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 6 of the Practice Direction – Pre-Action Conduct, Rule 16 and Practice Direction 16 – any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and will be drawn to the court’s attention as unreasonable conduct pursuant to Rule 27.14(2)(g) and as a failure to comply with pre-action obligations. You will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into any meaningful discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.

Since there is clear evidence that these claims have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act because your client has accessed my keeper details from the DVLA when it had no right to do so. Should this matter proceed then I put you on notice that I will make a counterclaim for damages in respect of such breaches (in respect of each PCN). I understand that there is case law which supports a damages award of £750 for each breach (so £1,500 in this case). In this case, I believe I am entitled to claim an award of aggravated damages because I understand that your client was admonished for wrongfully accessing and storing/using data in 2012 (less than a full year before my PCNs were issued) and suspended by the DVLA from accessing further data – all of which means that your client must have been aware of the provisions of, and its duties pursuant to, the Data Protection Act.

Loadsofchildren123

• And this is the letter I intend to send to Admiral.
  
  I am writing to ask for your assistance, and to put you on notice that I intend to add you as a party to two claims issued against me by Excel Parking Services Ltd (“Excel”) and to make a counterclaim against you for damages arising out of a breach of contract.
  
  The two claims relate to parking charge notices (“PCNs”) issued to my car on 17 April 2013 (PCN reference XL05564306, court claim number D1DP95Q7) and 25 June 2013 (PCN reference XL05485571, court claim number D1D95Q8). In total the amount of £515.18 is being claimed from me.
  
  The basis of the claim
  
  I was employed by Admiral at your Swansea office between 20xx and 20xx. During this period, we entered into a contract by which you granted me the right to park in one of two staff car parks, and I agreed to pay the sum of £50 per month, which was deducted at source from my salary.
  
  Once this contract had been entered into, you provided me with a paper permit and a plastic envelope/pocket designed to be stuck to the inside of a car windscreen, in which I could display the permit (“the windscreen pocket”). It was not, however, an express term of our contract that the permit had to be displayed using the windscreen pocket. Neither was it a term of our contract that there would be any penalty for failing to display the permit, either in the windscreen pocket or by any other means.
  
  On the back of the windscreen pocket was wording which included an instruction to use only the windscreen pocket to display the permit and vague reference to a “charge” (undefined) for any breach of this.
  
  I proceeded to use the windscreen pocket to display my permit. However, on various occasions, it fell off the windscreen when the car was unattended. If it was a term of our contract that I was obliged to display the permit in the windscreen pocket at all times (although this is denied) then it was an implied term of the contract that the windscreen pocket should be fit for purpose. Clearly, it was not and you have therefore breached this obligation. Your breach has led to the proceedings being issued, in respect of which £515.18 plus accruing interest is sought from me.
  
  Your breach of your contractual obligations will cause me to suffer financial loss and a considerable amount of time and stress in respect of defending those claims. I intend to apply to join you as a party to those proceedings and to issue a counterclaim against you for damages arising out of your breach of contract.
  
  Summary of the facts
  
  The arrangements for staff parking were as follows:
• At the time of my employment, there were two dedicated staff car parks (now there is only one). To park there, the employee had to have your prior permission, in return for which they paid Admiral £50 pcm (which was deducted from salary at source). Once permission was granted, the employee would be given a permit to display in their car;
• There was a waiting list for permission. Employees could put themselves on this waiting list and when a space became available, Admiral would offer the right to park to the employee at the top of the list;
• If the employee accepted the offer, they would sign an agreement with Admiral in which Admiral confirmed the offer of parking and the employee agreed to the monthly payment of £50 and to it being deducted from their salary. There was no reference in this agreement to the manner in which the permit had to be displayed, nor to any right of Admiral, or of any third party, to issue charges for any failure to display the permit in a prescribed manner. No mention was made of any further terms and conditions, whether on the back of the windscreen pocket or in signage in the car park;
• Once the agreement was signed, Admiral would issue the employee with a paper permit bearing their car registration number, along with the windscreen pocket;
• Parking was offered strictly according to availability, with the same number of permits as there were spaces – in other words, the parking was not a “first come, first served” arrangement (as you would expect when a monthly charge of £50 was being collected by Admiral);
• On the back of the windscreen pocket (given to the employee after they had signed the parking agreement with Admiral), is wording headed “PARKING PERMIT DISC – TERMS & CONDITIONS” underneath which various requirements are set out. At the bottom of these is the name Excel Parking Services Limited with contact details for that company. These Terms and Conditions are only provided to the employee after they have already reached a concluded agreement with Admiral. These terms and conditions do not form therefore part of the contract between employee and Admiral. In them there is vague reference to charges for failing to comply, and vague reference to further terms on display in the car park;
• The car park no longer exists, but at the relevant time in the car park itself were some signs which purported to create a contract between those parking there and a company called VCS Limited (“VCS”). This indicates that Admiral employs VCS to manage the car park to ensure that it is only used by permit holders. I do not know why Excel is identified on the back of the windscreen pocket when the signs clearly state that VCS manages the car park (although I understand that VCS and Excel are under common ownership);

I applied for a parking space as soon as I started my employment and shortly afterwards was offered, and accepted, a space. I signed the agreement provided by Admiral’s HR department which confirmed that I was being granted permission and that I would pay £50 per month for the parking. I was then given a paper permit bearing my car registration and the windscreen pocket. At no stage was my attention drawn to the wording on the back of the permit or to the signage – from a cursory reading of the signage it was obvious that it was aimed at non-permit holders and was designed to discourage them from using the car park.

It is my case that I entered into a contract with Admiral (“the original contract”): all the elements required to form a contract are present: offer (you offered me a parking permit), acceptance (I accepted it) and consideration (you provided a parking space, I paid £50 per month for it). I deny that once I had entered into the original contract there can have been any “new” or supplemental contractual arrangement with VCS or Excel affecting or altering my rights under the original contract. Therefore, the terms and conditions set out on the rear of the windscreen pocket and on the signs in the car park itself cannot have bound me insofar as they contained new terms not contained in the original contract (most importantly the imposition of a recoverable penalty for any failure to display the permit in a highly prescribed manner).

Put simply, I cannot have entered into any new contract with VCS/Excel, because the right to park had already been granted to me in the original contract.

Whatever arrangements exist between you and VCS/Excel, they cannot interfere with, nor alter, the terms of the original contract. Furthermore, whatever agreement existed between you and VCS/Excel to manage the car park, its intention was clearly that it should be for the intended benefit of the permit holders – it would go wholly against the intention of that contract for it to empower VCS/Excel to sue permit holders.

As confirmed above, because it was a convenient method of displaying the permit, I used the windscreen pocket you had given to me. However, from time to time this would fall off the windscreen with no prior warning, including when the car was unattended. This led to the two PCNs which form the basis of the claims now brought against me, which rely on the fact that my permit was not “validly” displayed (although it could in fact be seen on the dashboard, having landed there after it fell from the windscreen).

It is of course the case that Admiral had granted me permission to park and retained a record of my registration number so it would have been easy for you (or Excel/VCS) to check these records to establish that I was a permit holder. I emailed the relevant person in Admiral to ask that these tickets be cancelled. I was told it was nothing to do with Admiral but was in the hands of Excel. This cannot be the case because Admiral had contractual obligations towards me. What happened to me was a regular occurrence, not just for me but for others employed by Admiral. I simply cannot believe that there is no process by which Admiral can instruct Excel/VCS to cancel a PCN issued to a genuine permit holder.

The relief claimed

There seem to me to be two options open to you in order to avoid being joined as a party to the proceedings:

• To intervene with Excel and arrange the cancellation of the two PCNs (reference numbers XL05564306 dated 17 April 2013 and XL05485571 dated 25 June 2013) and the unconditional withdrawal of the proceedings D1DP95Q7 and D1DP95Q8; or
• To pay a sum of money to me so that I can settle the claims and to compensate me for your breach of contract. £515.18 is required to settle the claims (plus about £5 in additional accruing interest) and I ask for a further £150 to compensate me for your breach of contract (a total of £670.18).

If you will not do either, then I intend to apply to join you as a party to the proceedings D1DP95Q7 and D1DP95Q8 and to issue a counterclaim against you for damages arising out of breach of contract in the sum of £515.18 plus interest (the amount being claimed from me by Excel), together with the court fees and legal costs incurred in applying to join you as a party and for issuing the counterclaim (together £280), and a sum of £150 for inconvenience and stress.

Documents upon which I will rely

I enclose a copy of the purported “terms and conditions” printed on the rear of the windscreen pocket, together with a photograph of the sign I believe was displayed in the car park in 2013.

Next steps

I refer you to the Practice Direction - Pre-Action Conduct, part of the Civil Procedure Rules governing civil litigation, which can be found on the internet in the following link:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

The Practice Direction sets out the steps that each party to a dispute of this nature is expected to follow before resorting to court proceedings. I refer you to paragraphs 13-16 of the Practice Direction, which sets out the costs consequences of any failure to comply with it. I also refer you to paragraph 6, in particular 6(c) which obliges you to produce the documents upon which you will rely if this matter proceeds.

In accordance with paragraph 6(c) when you reply to this letter please send me the following documents:

• Any contract between Admiral and Excel or VCS setting out the terms on which they manage the parking in the Admiral staff car park in Swansea
• A copy of the agreement I signed and which I returned to your HR department in which you granted me the right to park in the staff car park.

In accordance with the Practice Direction, I will wait for 10 days before taking any further action. You will appreciate that I am bound by a court timetable because Excel has issued proceedings against me. If I have not heard from you within this time, then I will proceed to issue a counterclaim and an application to join you as a party without further notice.

I have copied this letter to Admiral’s Facilities Manager in Swansea.