Company Car- left employment now being chased for upgrade costs...

[m2000]

Hi All,

 

Update time - not good news!

 

Well, a few weeks back there was a letter from the court, basically the Claimant hadn't returned the AQ within the iniital given timescales, they were given a few extra days.

 

Clearly they have since filed an AQ as today i recieved notification of court date

 

 

"It is directed that

 

1. This claim be allocated to the Small Claims Track.

2. The parties shall file and serve the following not later than 4.00pm on 21 may 2010.

a) The written statements of evidence of any witness whose evidence is relied on in suport of or in defence of the claim.

b) copies of any documents which a party proposes to rely on.

 

3. The case be listed for a hearing before district judge XXXXX in the small claims list on 17th June 2010.

 

A hearing fee of £300 is ppayable by 29th April 2010 by the cliamant unless you make an application for a fee concession.

 

Failiure to pay the fee will result in the hearing being removed from the list."

 

 

So basically, worst fears have developed and I have to go to court!!!

 

The Claimant has not replied to any of my points in the defence i put forward... i.e. strict proof on numerous points... will this happen in court??

 

I am totally gutted and stressed, I honestly thought they may try and be amicable and write to me to offer to keep it out of court and accept my proposed payment plan

 

 

Any advice ??

 

Thanks for all the support receievd so far

[MrShed]

I cant advise too much - I would simply say not to worry too much that they have taken it to court

[m2000]

Hi MrShed,

 

Thanks for your support. I know it's not the end of the world, i am just disappointed that despite offering token payments etc they are still taking it right to the extreme i.e. court.

 

Onwards and upwards!

[m2000]

Hi,

 

Can someone please clarify the situation here:

 

Basically, in my defence and AQ I asked the Claimant to supply certain documents (you can read my defence further back on this thread if you want to look at it)

 

To date, they have not supplied any documents - should these not have been provided by now?

 

Also, with regards to the Court date, how does it proceed.. i.e. can I simply read out a written statement explaining my side or is there a certain protocol to adhere to?

 

Thanks again

M2000

[The GodMother]

You need to wait as the courts may have told them to produce the info.

 

Also with the courts you can ask the courts to order they produce the info.

 

Also no with the hearing you will not be able to turn up and read out a statement you will have to produce folders full of evidence submitt docs etc.

[m2000]

Hi TheGodmother,

 

Thanks for your reply!

 

" You need to wait as the courts may have told them to produce the info."

 

How do I know when they have or have not provided the information? Will this be prior to the court date?

 

 

 

"Also no with the hearing you will not be able to turn up and read out a statement you will have to produce folders full of evidence submitt docs etc. "

 

How does this work? I know I have to provide documents to support my case prior to the hearing.... do I also take them to the court hearing and questions will be asked about what I have submitted and my argument etc?

 

Sorry if being OTT, I am just very nervous about the hearing and don't know what to expect.

[teaboy2]

Hi all

 

Just came across this thread after being away from the employment forum for a while. I had a some what quick browse though. And i am surprised non of you picked up on the restrictive covenant issue here, which would throw the employers claim right out of the water.

 

Basically the terms of the car agreement was an addendum to the terms and conditions of the employment contract, as confirmed in part 3-4 of the claiments POC.

 

Now am not a legal expert but even i know that once a contract is terminated, and as the company accepted his resignation they agreed to the termination of the contract, that as a result neither party are any longer bound to the terms or addendum terms of the contract. Therefore theirs no case to answer.

 

And yes it is a restictive covenant as it prevent the employee from leaving the company within the first 36 months without suffering a financial burden (restriction)

 

Now we all know that the starting point for any such post-termination restriction is that it is void on the grounds of illegality. However, if the ex-employer can convince a court that the covenant is:

• designed to protect his legitimate business interests; and
  
• that it extends no further than is reasonably necessary to protect those interests
  

then it will be upheld and enforced. However in this case i can not see how the ex employer can justify such a clause as being designed to protect his legitmate business interests when clear they have the benefit of use of the car, where if the defendant had paid up they would have gain procession of a car at far lesser cost than the market value plus the benfit of use of the car. That being said i do not see any way in which such a clause can extend no futher than is reasonably necessary to protect those interests. Especially where in this case the car in question has been passed to another new employee, and no doubt under the same agreed terms that was offered to the defendant.

 

 

Id sure like to see your opinions on my thoughts above, as if am right it will without doubt be worth pressing for an admendment of the defense.

[m2000]

Hello Teaboy2,

 

Many thanks for your reply! Your input is VERY much appreciated...

 

If this is the case I will certainly need to look at trying to submit a reised defence.

 

 

Does anyone else have any input here? more views would certainly be appreciated.

 

 

Thanks

M2000

[teaboy2]

yeah i reckon we all need to put or heads together and see if its an arguement that we could try using and how we go about presenting it to the courts in the defense.

 

Am pretty certain it would make the solictiors jump to attentiona nd have them rushing around panicking checking their legal books etc.

 

put it this way if you do use it in your defense, the worse thing the judge can do is dismiss such argument. which i dont think it would effect the rest of the defence in anyway.

[m2000]

Hi Teaboy,

 

Thanks again, good to have you on board assisting!

 

Anyone else have any opinions??? would really appreciate further assistance in what to do next!

[teaboy2]

Maybe another way of arguing it, would be on the terms being void upon termination of the cotract, which was a mutually agreed decision to terminated the contract on 'so and so a date', after you give you resignation and they accepted your resignation and therefore agreeing to the terrmination of the contract. A term or addendum terms in a contract can not be enforced when the contract either no longer exist's or was mutaully terminated upon acceptence of your resignation. Therefore the addendum terms can only be enforce if a breach of contract had occured, which clearly was not the case. because in order for their to be a breach there needs to be a active contract in place, which there clearly is not, as claiment had mutaully agreed to terminate the contract upon their acceptence of my resignation! Such resignation being a request to terminate my employment contract with the claiment, after the given notice period contained within my resignation which the claiment agreed too.

 

Come on guys your thoughts are needed.

 

think about it, its like a consumer credit agreement, where you take out a loan then stop paying half way through. the creditor then chasing you for payments or outstand balance, you CCA request them, they default on the CCA or fail to provide one in court, the debt as a result is unenforcable as their is no contract that exists and therefore no repayment terms.

 

only in this case its a simple matter of them trying to enfore a term that is and addendum term to the employment contract terms, when the contract of employment was mutaully terminated when the M2000 handed in hi resignation requesting to terminate his employment contract after the end date of the notice period he had given, in which his employer accepted. Therefore mean the contract was terminated as soon as m2000 walk out the door after his last day of working for them.

 

So they are now trying to enforce a addendum term of a contract that M2000 is no longer legally bound too.

Edited April 21, 2010 by teaboy2

[m2000]

Bump

[teaboy2]

I think they may all have their thinking caps on, and considering the new arguement carefully prior to posting their thoughts! M2000

 

Or atleast that what i hope they doing.

[Mossycat]

I'm not sure that this argument would work.

 

The OP had a contract of employment, additional and seperate to that the OP signed acceptance of terms and conditions relating to a better spec car, a condition of that was that if the OP left within a given timescale then they acknowledged and confirmed that they were liable for the additional costs associated with the higher specs.

 

The OP did leave within the given timescale, so I can't see that you can argue that the car agreement is in anyway linked to the contract of employment.

 

It's very much like when an employer pays for an employee to sit professional exams, a common condition of them paying the cost is that you will work for them for x years, if you leave within x years you have to pay back the cost of the exams. That's fairly standard and totally enforceable.

 

Mossy

[teaboy2]

I'm not sure that this argument would work.

 

The OP had a contract of employment, additional and seperate to that the OP signed acceptance of terms and conditions relating to a better spec car, a condition of that was that if the OP left within a given timescale then they acknowledged and confirmed that they were liable for the additional costs associated with the higher specs.

 

The OP did leave within the given timescale, so I can't see that you can argue that the car agreement is in anyway linked to the contract of employment.

 

Were not, they are! they clearly state that the terms for the car were addendum to the terms of the employment contract. So in other words, the terms for the car were part of the employment contract terms, and not a seprate contract. See part 3-4 of their POC. Basically their claiming the terms for the car became an additional term of his employment contract when he accepted the car. So the timescale in the company policy booklet is irrelevent, as the contract which contained the term was terminated (mutually between the claiment and the OP upon acceptence of the OP's resignation) and therefore any such terms are now void.

 

It's very much like when an employer pays for an employee to sit professional exams, a common condition of them paying the cost is that you will work for them for x years, if you leave within x years you have to pay back the cost of the exams. That's fairly standard and totally enforceable.

 

Mossy

 

Although they state in the POC that by agreeing to the term he had read, understood and acknowledged the companys company car policy. It doesnt change the fact that a policy is just a policy and not a contract or that the term in question was an addendum to his now terminated employment contract. so he therefore has not signed an independent contract in relation to such a car policy, which if he had then it would still have been an active contract even though his employment contract had been terminated.

 

They are basically trying to enforce a contract that is in legal terms terminated and all terms of the contract VOID.

 

A policy is simply nothing more than a set of rules and precedures for you or the company to follow, yet you are by no means legally bound to such rules and procedures. It also states in the policy that the company will RECLAIM the money, but it does not state he actually has to PAY it

 

Another point would be, where does OP stand in regards to the consumer crdit act, as it is clear that the company has issued credit to the OP for the cost of the trade up and reclaiming the costs by 36 monthly deductions (installments) from the OP, effectively making it a loan between the company and the OP. regardless of whether any interest is added or not.

 

Of course these are just speculative and somewhat hypothical arguments, but i do belive they warrant some serious consideration.

Edited April 22, 2010 by teaboy2
added additional comments

[m2000]

hmmmm..... keep it coming all!

[m2000]

Any more advice?

 

Do we think that it is a good idea to submit a revised defence? is this straightforward to do?

 

Thanks all!

[teaboy2]

Personally id wait see what a more legal minded person thinks of the possible extra arguments.

 

I dont see how adding the argument on how the contract is terminated and as such the terms and addendum terms to that contract are void, will do any harm, as you will still have all of your original defense, but then am not a legal expert. Kraken1 might beable to give some helpful input on it though so it maybe worth your while sending him a PM and asking him to have a look at your thread and the possible legal arguments, and see what he says.

[m2000]

Hi Teaboy2,

 

Many thanks - i'll drop Kraken1 a PM now.

 

Cheers

M2000

[teaboy2]

Your welcome M2000.

 

Kraken1 does have some in depth legal knowledge, so hell no doubt beable to confirm whether you would have grounds to argue the contract terminated so terms void argument or not, as well as possibly provide further advise to you. With myself owning a company its never something i have had to look into on a legal point of view, because we dont provide a company car scheme, as yet. So its not something i can advise on and advise with any surety about it. Which is why i provided the new arguments in a speculative and hypothical basis.

[m2000]

* bump *

[Kraken1]

Looking in as requested.

 

First thing to note is that employment law can have weird nuances, and I'm not an expert, by any imagination. The last time I worked with employment law was perhaps a decade ago, the last time I looked at a textbook more than that. This means that I can't really add much. It also means that the following might be rubbish.

 

As for the points Teaboy has raised with regards to the contract, while they are interesting I don't think that they will fly. A contractual obligation like this can be enforced after the 'end' of the contract, just like a restricted covenant or even a car insurance contract. Further, I don't see that this is a termination of the contract in the same way that you might get with a finance agreement.

 

Some employment terms are subject to a test of reasonableness, such as repaying qualification fees. I don't know if that would be the case here. I doubt it to be honest though. The claim they are seeking to make seems, on the face of it, reasonable.

 

I think the best arguments are those about them proving an actual loss. No loss, no claim. You really want to see the terms of the leasing agreement, the other chaps request and what he is paying. I don't know how good this argument is, or how much the dj will look behind the contract, but it is your best bet.

 

As for disclosure, and their failure to do so, (is this right? I might have misread?) I would bring this to the attention of the court and ask for directions, possibly invite the court to strike out, but that is very cheeky. Play on the 'I'm a layman' thing and ask how you can properly defend when they have not complied with a previous order.

 

The points about the other folk that were not charged aren't really worth anything. I think they'd just say that a deal was done as part of the terms of their leaving, especially if they were pushed.

[m2000]

Hi Kraken1,

 

Many thanks for taking the time to have a look at my thread.

 

I think you have confirmed what a few other people have said off-forum, i.e. that the argument really rests on proving the loss and that they have tried to mitigate the loss.

 

Also, a strong point I need to make is that I offered to make payments each month (as cannot afford a lump sum of £4k) and they refused my offers. They said they want sight of bank statements and pay slips which I feel is unreasonable when I am openly offering to pay them each month!!

 

In terms of disclosure, I may not of explained very well. Basically, on my defence which was submitted prior to the Allocation Questionaire, I put the Claimant to "Strict Proof" on a number of points. On the allocation questionaire I also requested a copy of the lease agreement between my ex-employer and the fleet solutions company along with a copy of the vehicle order form and the details of what the new driver of the vehicle is paying.

 

Non of the above documents have yet been provided. Am I right in thinking that the Claimant will have to provide these by the date given n the directions from the court i.e. 21st May?

 

My problem is that I do not know what the court has requested from the Claimant....

 

How will it work in court... will each party basically "pitch" their case and then answer questions which are asked?? I am getting rather nervous of it now!

 

Many thanks

[Kraken1]

Non of the above documents have yet been provided. Am I right in thinking that the Claimant will have to provide these by the date given n the directions from the court i.e. 21st May?

 

No. You'll need to make a specific request for the docs you want, and then you need to file them at court if you want to rely on them. Google disclosure and civil procedure rules. Ask if you have any questions once you've done some reading.

 

How will it work in court... will each party basically "pitch" their case and then answer questions which are asked??

Yep. probably around a conference table or similar, or in an office.

[m2000]

Hello Kraken and all,

 

I have had a look at the CPR disclosure rules, think I have confused myself even more, but never the less, I have knocked together the following CPR document, I am not sure if I have hit the key CPR points, can you please cast your eye over and check it is ok???

 

FIRST DRAFT

 

 

"Dear Sirs,

 

Re: XXXXXX (Claimant) v Mr XXXX (Defendant) Case No: XXXXX

 

CPR 31.14 Request

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the following documents:

 

1) The lease agreement which exists between XXXXXX and XXXXXX Fleet Solutions. This should be the specific lease agreement for vehicle registration XXXXXXXXX.

 

You will appreciate that without sight of the original lease agreement I am unable to establish:

 

a. Whether the perceived loss claimed may have been mitigated by the returning the vehicle under the terms of any early redemption clause attached to this agreement.

b. Whether downgrading the vehicle would be possible under any relevant term of that contract which may or may not exist.

c. To establish whether the interest claimed upon the perceived loss is lawfully due.

 

 

2) A copy of the vehicle order form, specific to vehicle registration XXXXXXX.

 

3) A copy of the signed agreement between the new employee of XXXXX Financial Services who is now responsible for the said vehicle.

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested are copied to and received by me within 7 days of receiving this letter.

 

Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully,

 

Mr M2000"

 

 

 

I have done a LOT of copying and pasting etc, so not sure if it's right?

 

Can anyone think of futher documents I should request?

 

Thanks again!

M2000