EXCEL claim, Admiral staff car park in Swansea

Loadsofchildren123

If you a lessee though, you are the sole lawful occupier of the land, so wouldn't you have all rights in relation to it?

Loadsofchildren123

But I will say they should produce it, there may be something in it

System

the contract between the council and Excel has primacy.

.. err no. All that Excel do is to lease the space so they can run the car park**. Excel, by virtue of the lease, are the occupiers.

As regards the Excel-Admiral-Driver issue, that bares close examination by the court and you'd want this one to go all the way.

** If you check with Swansea CC you can see who pays NDR. Should be Excel the same as all their other car parks. Which is why all the Excel "contracts" are just a statement by Alan Cockroft that there is a lease.

Loadsofchildren123

Just shamelessly bumping this to see if anyone else has anything to say about the contracts in my post #28.

I think my core argument is that the contract was with Admiral, not with Excel, although the excel t&cs were incorporated into it (those on the piece of paper ,not on the back of the plastic window thing and not those on the carpark signage).
As for the breach, she made reasonable endeavours to comply with it, but that element of the contract was frustrated by them providing the not fit for purpose plastic display pocket.

Lamilad

3. At the same time as she gets 2 above, the employee is given this document which sets out terms and conditions - these are referred in the above document which states she agrees to abide by them:

I must be missing something but where does it state she agrees to abide by the Excel T&Cs in the Admiral-Employee agreement? As far as I can see she's only signing to say she agrees with the salary exchange/variation of contract (page 1 & 2) and the conditions for parking (page 2)

Loadsofchildren123

I'm assuming those Excel t&cs are the "rules for parking" referred to.

So she applies for parking, she's eventually told there's a space and when the contract is entered into she is given the t&cs and signs the salary exchange agreement. She is then given the permit and the plastic windscreen thing. She's not asked to sign the excel t&cs and I very much doubt she is given any time to read them. They may even be given to her afterwards.

If the latter is the case then they cannot form part of the contract. And I suppose also if she is given them but not given the time to read them then it is arguable that they are not part of the contract.

The Admiral-Excel contract says Admiral must make reasonable endeavours to bring the t&cs to her attention.

The trouble is she, like other employees, didn't really pay much attention to the documents. She's a young girl in a junior clerical role. I think it was her first job after leaving school. She thought she was getting to park and understood what it would cost her. She didn't worry about the t&cs, probably didn't even read them - she knew she had the parking rights and assumed that if the permit fell off her windscreen there would be some reasonable method (since Admiral had her Reg) for cancelling a pcn. Note that the excel t&cs didn't say what amount any charge may be. She would assume that the scary signs in the carpark warning of £100 charges were aimed at discouraging non-permit holders with no right to park there.

Thinking it through I say she was either not given them or not given the opportunity to read them. She certainly cannot remember being told about the importance of displaying the permit in the windscreen thing provided and neither can she recall being informed that she'd have to pay a charge if it fell off or was not displayed (particularly as she gave them her car Reg). I'd say this is a "red hand" clause as per Lord Denning to which special attention should have been drawn (it quite clearly wasn't). So they excel t&cs don't form part of the contract. Her contract is with Admiral. There is no contract between her and excel - even if the signs in the carpark are capable of forming a contract.

And if the t&cs do form part of the contract then she used all reasonable endeavours to comply and they frustrated the obligation by providing a display pocket that fell off the windscreen and was not fit for purpose.

A bit garbled, but I'm thinking it through as I am typing.

What do you think?

System

and signs the salary exchange agreement

See: L'Estrange v Graucob

This comes up often in non-parking employment disputes. But it will turn on the wording of the Admiral contract and not the Excel one.

This is a low risk for the OP relatively speaking but a high risk for Excel.

Lamilad

I confirm that I have read and understand the salary exchange rules and that I have read and understand the conditions for car parking at Admiral.

I understand that I will be charged for my space until this agreement is cancelled. I cannot cancel this agreement until next April at the earliest or earlier if experience a lifestyle change as defined in the salary exchange rules

Nothing there about agreeing to 'rules for parking' or any Excel T&Cs

If this is the only doc she has signed then it doesn't even mention Excel... It doesn't even mention a 'parking company' or a 'car park operater'

In my layman's opinion t is clear she has not entered into any contract with Excel. I would dispute (if it is argued) that the 'rules for parking' are the Excel T&Cs doc - she could just as easily say she assumed the 'rules for parking' were the facilities person telling her to display the permit when she parks. In any case (as above) she has not signed to say she understands and agrees with any 'rules of parking' whatever they are.

the claimant should take the matter up with their client as the defendant has fully complied with her contractual obligations under the agreement she signed with Admiral

Loadsofchildren123

The salary exchange agreement says this on the preamble at page 1:
At the start:
"The rules set out below apply in addition to the rules for parking as agreed with Facilities" - the bit in italics is the bit I'm worrying about. The "rules set out below" must be the "conditions for parking" on the next page- these are about the salary exchange scheme, the deposit and how spaces can or can't be shared/sublet etc.


Then at the bottom of that first preamble page it says:
"REMEMBER! Once you've signed the Car Parking agreement you are bound by the terms and conditions"
This is the first time "t&cs" are referred to. It is unclear if these are the "conditions for parking" set out in the agreement, or if they are the "rules for parking as agreed with Facilities" referred to at the top of the same page.


This wording signifies to me that there were additional terms/rules not set out in the agreement. The question is whether these were communicated to the driver, and when.


Then we come to the agreement itself, the last 2 pages. On the second page, just above the signature clause, it says:
"I confirm that I have read and understand the salary exchange rules and that I have read and understand the conditions for car parking at Admiral".
Unlike the wording above, this does NOT signify that there were additional terms/rules.
I would say that "the conditions" referred to are those set out on the previous page, and not any additional ones not included in this document.


The driver is unlikely to remember clearly - this was her first job out of school and as we all know people sign things without a second thought (a few years ago I hosted a children's party at a council-run place, where the contract I was asked to sign said that I would indemnify the council in respect of any personal injury claims - I crossed this clause out, but I bet you I was the only person ever to have read the document and done this - I said to the lady that if someone fell because of the council's negligence and broke their neck, and if the council was liable in negligence then there was no way I was indemnifying it for a claim that might extend into £millions). What I do not know is whether she was given the Excel t&cs before she signed this agreement, or afterwards. If before, the secondary issue is whether she was given the opportunity to read them.


1. If she was given them before, then potentially L'Estrange means they are part of the contract, even if she wasn't given the chance to read them. I'd argue that as they contain a load of new gumph and she was not given a chance to read them then they cannot form part of the agreement to park. Particularly since they introduce onerous new terms, such as a highly prescribed manner in which the permit had to be displayed and the agreement to pay a charge for failure to do so. Those terms should have been drawn to her attention a la Lord Denning's Red Hand Rule.


2. If she was given them afterwards, then they cannot form part of the contract.


3. Even if 1 above occurred, and even if it is decided they do form part of the contract, two points follow:
a. the "charge" is undefined - the only place it is defined is in the car park, and the terms on the car park signage cannot have formed part of the contract because no piece of paper was given to her prior to signing which contained those terms.
b. the term was incapable of performance because the plastic display envelope was not fit for purpose and that part of the contract was frustrated. And she used reasonable endeavours to comply with it.


I'm not sure the defence needs to include anything else, other than the primary point that the agreement to park was made with Admiral and Excel has no standing whatsoever to sue. You can't enter into a contract with A, and at the moment you are signing be given a piece of paper with B's t&cs on it which then creates a second contract with B. The contract is still with A, even if B's terms are incorporated into the contract with A.

Loadsofchildren123

Spoke to driver - she recalls that she went up to HR/facilities, signed the salary exchange agreement THEN was given the "Excel pack" which comprised the Excel t&cs and the permit.

So the Excel t&cs cannot form any part of the contract. Nor can there have been any supplemental contract with Excel. No after-the-event contract can have been imposed by the carpark signage, or by the Excel t&cs.