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CF2019
Hi,

This is an issue that has been ongoing over the last 7 - 10 days now, I have searched the net alongside these forums before finally joining and asking for help. It's quite a long post - sorry. Also, I hope I've quoted and attached everything necessary but apologies upfront in case I have done something wrong. Right, the problem:

I received an email from ZipCar informing me of a PCN (52M) dating back to Nov 2018:

QUOTE
We have received a Penalty Charge Notice ****. Unfortunately, having consulted our records I am sorry to inform you that responsibility has been attributed to your account.

The charge was issued during your reservation for traffic at ****. Your trip ran from ****.

We will pay the £65.00 charge in five days and will add this and a £15.00 processing fee to your bill then. The processing fee covers the cost of receiving, reviewing and paying the PCN on your behalf.

If you feel this Notice was issued incorrectly and would like to appeal it, please contact us by responding to this email within the 5 day window.

If we do not hear from you, the PCN and the processing fee will be paid and settled by Zipcar in 5 days’ time. So, if you are satisfied that the PCN has been issued correctly, no further action is required by you.


Attached to the email was a letter and two images:







This was for driving a ZipCar through Cornhill in London on a weekday. I drive a lot around London and have done for over ten years, this is my first PCN so I was a bit shocked. After searching these forums I learned it's quite a controversial hotspot and a lot of these PCNs are overturned. I responded to ZipCar informing them that I would like to appeal the PCN and used a template that I found on this forum:

QUOTE
I do believe this PCN was issued incorrectly and would like to appeal it on these grounds:

1. The contravention did not occur because of missing road markings.

ETA case 2170469229 is appropriate:-

"The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .

Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.

The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it."

2. The contravention given is untenable

The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).

With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.

In that case the adjudicator ruled as follows:-

Extract

“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.

“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.

Section 4 of the 2003 Act provides, so far as is material to this case,

“(1) This section applies where

(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or

(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.

(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice

(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and

(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following

(i) the person appearing to them to be the operator of the vehicle; and

(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.



(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign.

(6) No penalty charge shall be payable under subsection (5)(a) above where

(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.

Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)

I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.

------------------------------

This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.

The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:

An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong

It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”

The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.

Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .

"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle

(a) acts in contravention of a prescribed order; or

(b) fails to comply with an indication given by a scheduled section 36 traffic sign."

Section 4 (6) goes on to provide:

" No penalty charge shall be payable under subsection (5)(a) above where

the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”

The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)

It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.

The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.

The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.

The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.
---------------------------

For the above reasons I believe the contravention cannot be sustained and the PCN must be cancelled.


I then received this response from ZipCar with image attached:



QUOTE
I have attached the relevant signage at the start of the road, this can not be missed when entering Cornhill, as you can see the correct signage is in place. for more information on this please visit =

https://www.cityoflondon.gov.uk/services/tr...s-and-signs.pdf

or

https://www.cityoflondon.gov.uk/services/tr...-penalties.aspx

for further information on the violation. Unfortunately, the councils are quite strict in their enforcement of traffic fines and because this contravention occurred during your booking this fine was issued and attributed to your account correctly. I’m afraid we will therefore need to apply the associated charge.

I understand that this is a frustrating situation, but we need you to remember that PCNs are not issued by Zipcar, but by the local authority. We try to accommodate our members as best we can, but we, as a company need to recover the costs of these fines from the members responsible.


I responded:

QUOTE
So can you confirm that Zipcar are denying me my right to appeal this? My appeal is not based on there being no signage, it is based on a number of other factors. The first email zipcar sent me on this matter stated that if I would like to appeal this I have 5 business days to reply, I replied within one business day. This isn’t something I am doing ‘on a whim’, I have access to legal advice and I have a right to appeal this. It is absolutely not a decision that is made by zipcar as to whether or not the PCN is correct.


ZipCar replied:

QUOTE
To clarify no valid appeal can be made as shown in the attached photo previously sent to you, the street had the correct signage in place. I have attached a relevant term and condition confirming we are not taking any rights away from you. 11. 4 - The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion.

we give you the opportunity to appeal directly to Zipcar however reviewing the evidence we have decided no successful appeal can be made. This decision has been made at a managerial level and will not be over turned


They then went on to send this as well:

QUOTE
We have received a traffic violation following your reservation that took place **** (ticket number ****).

After receiving this Notice, we paid the violation on your behalf, to ensure that our vehicle was free of any obligations and ready to be reserved by our fellow members.

The cost of the violation was £65.00, which we have applied to your account.

For more information on our violations policy, please visit our Help Centre. Use the search box to ask a question or type in a key word to find the relevant article.


I responded:

QUOTE
I do not authorise ZipCar or any other party/parties involved in this matter to deduct any amount from my credit or debit accounts associated with my Zipcar account until this matter is resolved. If any amount is taken without my authority I will take action.

May I also remind you that an organisation’s ‘Ts and Cs’ do not override the rule of law. It is also important for you to understand that it is not the council, not TFL and certainly not ZipCar’s role to legally determine whether a PCN is valid, or whether an appeal will be ‘successful’. That is for a tribunal to decide.

It is very clear to me what has happened here - ZipCar has already gone ahead and paid the PCN, that is a mistake made by ZipCar and not myself. ZipCar are now trying to pass this mistake on to me.

The signage on the carriageway and the technicalities of the PCN are incorrect - this has been determined in a number of past cases that went to tribunal, however many times you send me the same reply, that doesn’t override this fact. I remind you, ZipCar cannot make a decision on the validity of a PCN, or the compliance of carriageway signage and markings, that is for a tribunal and ZipCar have denied me this right.


ZipCar eventually responded today:

QUOTE
I can again confirm we are not taking any rights away from you. The issuing authority will only accept an appeal from the owner of the vehicle (Zipcar) and its the owners decision to appeal or not. 11. 4 - The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion. We give you the opportunity to appeal directly to Zipcar.

Zipcar members are responsible for any parking tickets received by Zipcar as a part of their member contract with us. In taking a service out with ourselves you accepted the terms and conditions of our car club and by driving one of our vehicles agreed to abide by the highway code.

Therefore, I feel I must inform you that as the balance is due it will continue through the debt process. If left unpaid this will go to debt collections which could affect your credit rating or ability to obtain credit with other businesses.


Again, any help or advice is hugely appreciated. To me now it's not so much about the money - it infuriates me that this company has taken away might right to appeal this. If I had appealed and lost, fair enough but ZipCar are denying me that.

Thanks!
Neil B
We've seen this before.
I'm no expert but, for me, I can't reconcile this
QUOTE (CF2019 @ Tue, 29 Jan 2019 - 18:34) *
its the owners decision to appeal or not. 11. 4 - The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion.


with this
QUOTE (CF2019 @ Tue, 29 Jan 2019 - 18:34) *
iZipcar members are responsible for any parking tickets received by Zipcar as a part of their member contract with us.


The second means that they could probably use the facility to formally transfer liability to you. If you're contractually liable as hirer, why not.
I don't think they have to but then the first might be judged an 'unreasonable term' in the hire contract.

Member 'cp8759' here is likely to be more informed on the matter.
Mad Mick V
Why did the PCN go to Volkswagen? Probably because ZipCar are not the owners but lease in their vehicles.

Only the owner can transfer liability surely so ZipCar cannot in fact do so. IMO their contract in terms of penalty charges is smoke and mirrors.

The other issue of course is that the original "lease/hire" must exceed 6 months.

http://www.legislation.gov.uk/ukpga/1988/53/section/66

I read this to mean (correct me if I err) that the NTO goes to Volkswagen and they cannot pass liability to ZipCar because the hire/lease period is in excess of six months. So ZipCar actions must be ultra vires.

Mick
cp8759
You might be able to fight this, the problem is when they said "To clarify no valid appeal can be made as shown in the attached photo previously sent to you, the street had the correct signage in place." you didn't challenge them on the legally relevant points. Now you can only deal with it as a contractual matter.

Post the zipcar terms and conditions in full and I'll see if there's anything to be done.
hcandersen
OP, let's inject an element of realpolitik into this.

Do you use Zipcar regularly, do you depend on them (I drive a lot around London and have done for over ten years,) If so, then you will not want to kick up an unnecessary fuss regarding a penalty that in all probability you would have had to pay anyway - you don't know you did not commit a contravention, it appears you've trawled the internet looking for a straw to clutch.

Other than this, if you want to pursue Zip, then this could only be for breach of contract, nowt to do with parking other than the tangential issue of whether they or VW were actually liable for the penalty. But whether VW were liable for the penalty and Zip for an internal contract charge from them or Zip directly responsible doesn't matter a great deal: what practical, as opposed to theoretical, legal action would you be inclined to take?

Life's full of conflicting priorities, I'm afraid.
cp8759
I do think it's rotten that zipcar think they know enough about the law to determine that there can be no appeal. Any follow up letter should specifically query what legal qualifications the manager who made this decision holds.
Neil B
QUOTE (hcandersen @ Tue, 29 Jan 2019 - 22:16) *
Other than this, if you want to pursue Zip, then this could only be for breach of contract, nowt to do with parking other than the tangential issue of whether they or VW were actually liable for the penalty. But whether VW were liable for the penalty and Zip for an internal contract charge from them or Zip directly responsible doesn't matter a great deal: what practical, as opposed to theoretical, legal action would you be inclined to take?

Sounds more like a case of defending rather than pursuing.

Same applies about Zip use in future.
CF2019
QUOTE (cp8759 @ Tue, 29 Jan 2019 - 21:27) *
You might be able to fight this, the problem is when they said "To clarify no valid appeal can be made as shown in the attached photo previously sent to you, the street had the correct signage in place." you didn't challenge them on the legally relevant points. Now you can only deal with it as a contractual matter.

Post the zipcar terms and conditions in full and I'll see if there's anything to be done.


Thanks very much for this, here is the ZipCar 'member contract':

QUOTE
This Contract is a vehicle-sharing service subscription contract between Zipcar (UK) Limited (hereinafter referred to as “Zipcar”, “we”, “us” or “our”) and the Member (as defined in clause 1 below). All Members are required to accept and comply with the terms and conditions set forth herein. By accepting the terms and conditions of this Contract and using Zipcar's services you accept and agree to comply with the terms and conditions of this Contract, as it may be amended from time to time as provided herein.

The Schedules constitute an integral part of this Contract:

Schedule 1: General Rules of Vehicle Use
Schedule 2: Special Conditions - Zipcar Flex
Schedule 3: Special Conditions - Zipcar Roundtrip
Schedule 4: Additional Charges Schedule
Schedule 5: Membership and Driving Rates Schedule
Schedule 6: Model Cancellation Form

IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS CONTRACT, THEN YOU ARE NOT AUTHORISED TO USE ANY OF ZIPCAR'S VEHICLES OR SERVICES.

If you have any questions regarding this Contract, please contact us via email at services@zipcar.co.uk or by telephone at 0333 240 9000.

Zipcar reserves the right to change the terms of this Contract, including the Schedules, from time to time. We will give notice of essential changes to Members in a timely manner. Notice to the Member will be considered given when such notice is (a) indicated and accessible from the first page accessed after the Member log-on to the Zipcar website, (b) indicated and accessible when the Member uses the Zipcar app, © provided by email to the Member's email address on file with Zipcar, or (d) provided via our newsletter. If a Member requests (via an email to us), we will email that Member a notice of the changes. The Member agrees that all changes to the terms of this Contract will be effective and binding on the effective date indicated in the notice, which at a minimum should be fourteen (14) days following notice of the changes. The Member has the option of terminating its membership with Zipcar and this Contract if he or she does not wish to accept any change to the terms of this Contract. If the Member does not terminate this Contract within fourteen (14) days following notice of any changes, the Member will be deemed to have accepted the changes set out in the notice.

1.
Definitions
In this Contract, the following definitions apply:

a.
"Contract": This Membership Contract and its Schedules, whether made available in print or electronically through Zipcar's websites.

b.
“Designated Parking Zone”: in relation to a booking under Zipcar Flex, means any parking space which is both lawful and complies with the Zipcar parking rules (“Zipzone”); the boundaries of the designated zone and the parking rules for that zone may be found on the Zipcar website or app.

c.
“Dedicated Parking Space”: in relation to a booking under Zipcar Roundtrip, means the dedicated Zipcar parking space to which the Member returns the Zipcar vehicle at the end of the rental period.

d.
“Zipcar Flex”: the option to pick up a Zipcar vehicle at a particular location (as shown on the Zipcar website or app) at the start of a reservation and return the Zipcar vehicle at the end of the reservation to a different location (provided that location is within the boundaries of the Zipzone as shown on the Zipcar website).

e.
“Zipcar Roundtrip”: the option to pick up a Zipcar vehicle at a parking space (as shown on the Zipcar website or Zipcar app) at the start of a reservation and return the Zipcar vehicle at the end of the reservation to the same location

f.
"Member" or "you": The person that is approved by Zipcar to use Zipcar vehicles and that is designated to receive and pay all fees, charges and other costs associated with membership, including application fees, membership fees, driving charges and other costs or fees as indicated in the Rules and Schedules described below.

g.
"Rules": All the rules, guidelines or policies of Zipcar related to a Member's use of the Zipcar service, whether set forth in this Contract, appearing elsewhere on Zipcar's websites or otherwise issued from time to time by Zipcar, including specifically and without limitation those set forth in Schedule 1: Rules for Vehicle Use, Schedule 2: Special Conditions – Zipcar Flex, and Schedule 3: Special Conditions – Zipcar Roundtrip.

h.
"Schedules": All the schedules, rate plans and polices referenced in or incorporated into this Contract.

2.
Basic Terms of Use of the Zipcar Service
2.1
2.1 This Contract is a vehicle-sharing service subscription contract offered by Zipcar. This Contract does not in itself confer any right to access and/or use any Zipcar vehicles. A Member may only use Zipcar's vehicles, to the extent that these vehicles are available, in accordance with the terms of this Contract and subject to paying all applicable fees and charges. Zipcar will take reasonable endeavours to ensure reasonable availability of Zipcar vehicles for its Members.

2.2
The special conditions set out in Schedule 2 will apply to the Member’s use of Zipcar vehicles under Zipcar Flex. The special conditions set out in Schedule 3 will apply to the Member’s use of Zipcar vehicles under Zipcar Roundtrip.

2.3
Once approved for membership, Members will be issued with a membership card (a “Zipcard”) and/or will have access to the Zipcar app or other online platform to enable the Member to access Zipcar vehicles subject to availability.

2.4
Members are prohibited from (a) giving, lending or selling their Zipcard to any other person including other Members, (b) allowing non-Members to drive any Zipcar vehicle whilst it is on hire by the Member, © allowing other persons including other Members access to and/or use of their Zipcard or Zipcar account, or (d) otherwise allowing any other person including other Members to benefit from the use of their Zipcard or Zipcar account. Any loss, damage to or destruction of the Zipcard must be reported to Zipcar by email or by phone. Any unauthorised use of the Zipcard, Zipcar app and/or Zipcar vehicle must be immediately reported to Zipcar by email or by phone. Failure to comply with this clause 2.4 may result in termination of the Member’s membership with Zipcar and this Contract, may void any applicable insurance coverage, and may subject a Member to liability for any losses, liabilities and damages arising as a result of the unauthorised use of a Zipcard, Zipcar app and/or Zipcar Vehicle. Additionally, the Member will bear the applicable fees and costs of any Zipcar vehicle use and for any damage that results from such use and/or breach of this clause 2.4. In the event that a Zipcard has to be reissued to the Member, a charge in accordance with the Additional Charges Schedule will be levied.

2.5
Zipcar is the owner of any item it provides to the Member or puts at the Member's disposal during the term of this Contract, including specifically and without limitation, all Zipcar vehicles, mobile and web based applications and the Zipcards. The Member's use of and rights in relation to any Zipcar vehicle or item provided by Zipcar under this Contract are limited to those rights of use stated in this Contract.

2.6
To maintain and protect Zipcar vehicles and to prevent and detect crime we may use electronic devices to monitor the condition, performance and operation of Zipcar vehicles and/or to track the movement of Zipcar vehicles. This information may be used both during your membership and after expiry and/or termination of your membership.

2.7
Members are prohibited from using a Zipcar vehicle for the transportation of third party goods for payment including, but not limited to, providing courier or delivery services. In addition, Members are prohibited from transporting professional sports persons or professional entertainers in a Zipcar vehicle.

3.
Eligibility
3.1
To be eligible for our service, all Members must:


be at least 23 years old (or 19 years old, if joining with an affiliated Business or University);


if under 23 years of age, have held a full driving licence for at least 2 years with no convictions or accidents;


if under 25 years of age, and in possession of non-EU licence, issuing country must be either USA or a designated reciprocal country;


if over 75 years of age have two years driving experience in the last 5 years with no accidents or claims in that time;


have a driving record that meets the following requirements:


have held a full driving licence for a minimum of 12 months;


have no more than 6 penalty points on your driving licence;


if under 30 years of age have no more than 3 penalty points on your driving licence;


have no major endorsements;


have had no major violations in the past three years; and


have had no alcohol or drug related violations in the past seven years.

3.2
Satisfying the foregoing criteria does not automatically give an applicant the right to become a Zipcar Member. Acceptance of the applicant's membership is subject to approval by Zipcar in its sole discretion and, without limiting the foregoing, membership may be denied based upon additional criteria established from time to time by Zipcar and/or its insurance providers. In addition, even if approved for membership, a Member may be restricted from driving certain Zipcar vehicles based upon the Member's driving history and experience or the membership/driving plan selected by the Member.

3.3
We will obtain information from third parties concerning you to decide whether you are eligible for membership. We will be carrying out checks such as, but not limited to, an identity and credit check. We may pass your personal information to third party agencies for the purposes of carrying out identity and credit checks and they may keep a record of any search that they do. This check may leave an electronic note or “footprint” on your record. The information is not sold to third parties. For more information on what personal information we gather from you and how we process it, please read our Privacy Policy

4.
Fees and Other Responsibilities of the Member
4.1
The Member promises to pay Zipcar all applicable application and membership fees associated with the Member's driving/membership plan. If the Member provides false information and/or fails to provide information reasonably required by Zipcar when applying for Zipcar membership, Zipcar may in its sole discretion refuse to approve the Member’s application in which case the application fees will not be refunded.

4.2
When a Member's membership terminates a new application fee may be payable if a new membership application is resubmitted more than thirty (30) days after a Member's account with Zipcar is closed. If your driving/membership plan includes an annual or monthly fee, your initial membership fee will be charged to you within five (5) days of membership approval and will only be refundable if you terminate your membership within the first thirty (30) days following membership approval. Certain restrictions apply. Please read the restrictions carefully by following the link provided above.

4.3
If at any time you wish to cancel your Zipcar membership, please contact us by phone or by email as stated in 7.1.

4.4
The Member is required to pay all fees and costs incurred when due, including, without limitation, application fees, damage waiver fees (if applicable), membership fees (which are automatically charged when due), driving charges (including but not limited to mileage overage and surcharge and/or toll fees), parking charges incurred whilst parking any Zipcar vehicle in an area that is not within the Designated Parking Zone or a Dedicated Parking Space or while parking any Zipcar vehicle in an area where the parking permit provided by Zipcar is not valid, value added taxes and other taxes and levies on any of the fees, costs and charges incurred by a Member. Please refer to Schedule 4: Additional Charges Schedule for further details of these fees, costs and charges.

4.5
Members are billed for amounts due via credit card, debit card, direct debit or other means as established by Zipcar. Any Member account which is overdue will be suspended. If payment of any amount due is rejected by the credit or debit card provided by the Member or not paid via the direct debit set up by the Member, membership, and the use of Zipcar's services, may be suspended. Members are responsible for providing and maintaining current credit card, debit card or direct debit information on file with Zipcar. Ongoing issues with credit card, debit card or direct debit billings may result in termination of membership. Under no circumstances will Zipcar be responsible for any overdraft or other fees charged by a Member's credit or debit card company or bank. For overdue accounts, Zipcar may also change when payment is due and/or terminate the Member's account. In addition, Zipcar may engage third parties to collect amounts owed to Zipcar by a Member and the Member will also be responsible for any collection or similar fees associated with these collection activities. Zipcar also reserves the right to charge interest on overdue charges at the applicable legal interest rate plus four per cent (4%).

4.6
Zipcar may use any information that a Member has provided, including any personal information, for the purposes of processing and collecting payment under this Contract, monitoring fraud and dealing with any issues before, during and after membership. For more details concerning the processing of your personal data, please read our Privacy Policy.

4.7
Members are responsible for providing and maintaining current email, mobile phone, preferred search address, mailing address and other account information. Telephone calls, live chats, email correspondence and social media communications with Zipcar may be recorded and/or monitored. By using these communication methods you are consenting to the recording or monitoring of your calls, emails and social media communications.

4.8
Members who do not have a UK driving licence must comply with the legal requirements for driving in the UK on a foreign licence. In addition, Zipcar may at any time require Members to demonstrate compliance with the licencing laws of their jurisdiction of residence and/or impose further policies regarding the obligation to be licenced in their jurisdiction of residence. Zipcar reserves the right to request additional information, such as a copy of a passport or proof of address at any time.

4.9
If the Member's licence is suspended or revoked or becomes invalid, if the Member has any further endorsements or accidents on their driving record or if the Member is convicted of or receives a citation for driving under the influence of alcohol or drugs, dangerous or reckless driving or exceeding the relevant speed limit, the Member agrees to report such suspension, revocation, changes, conviction or citation to Zipcar immediately and the Member’s right to access and/or use Zipcar vehicles under this Contract will immediately cease until further notice to the contrary by Zipcar. Failure to immediately notify Zipcar of any such events, or providing Zipcar with any false information may lead to the Member not being covered by Zipcar's insurance policy when driving a Zipcar vehicle and/or termination of the Member’s membership with Zipcar.

5.
Damages; Damage Fee; Damage Fee Waivers
5.1
Damages Generally: A Member is responsible for any and all damage that occurs to a Zipcar vehicle while in the Member's possession or control (including the entire time the vehicle is reserved under the Member's account), even if damage is weather-related, caused by a third party or arises from similar causes. The Member is also responsible for the full value of any damages or injuries caused to third parties or their property. Such damages include, without limitation, the repair costs (estimated or actual) for the Zipcar vehicle and third party property, injuries to third parties, costs associated with the recovery or transportation of Zipcar vehicles, and the loss of use of Zipcar vehicles or third party property. However, as described in clause 6 below, Zipcar provides insurance that, in general, covers most damages arising from a Member's use of Zipcar vehicles and the Member's liability for damages will generally be limited to the Damage Fee described in clause 5.2 below. If, however, a Member fails to abide by the terms and conditions of this Contract, the insurance coverage Zipcar provides may not apply, which may make the Member responsible for the full cost of any accident or incident and any damage arising from such accident or incident.

5.2
Damage Fee: Assuming a Member's compliance with all of the terms and conditions of this Contract, the Member's responsibility for the damages described in clause 5.1 shall be limited to the damage fee (the "Damage Fee") associated with the Member's driving/membership plan and/or the type of Zipcar vehicle used by the Member in the amount as set out in Schedule 5: Membership and Driving Rates Schedule. Members will be responsible for up to the full amount of the Damage Fee for actual, estimated or projected expenses, whether or not an actual claim is made or processed, unless the Member has purchased a Damage Fee Waiver.

5.3
Damage Fee Waivers: For an additional charge, eligible Zipcar Members have the option to purchase a Damage Fee Waiver (“DFW”) to reduce their financial responsibility for damages arising from the Members use of Zipcar vehicles. The purchase of a DFW is optional and may be declined. A DFW is not insurance and does not provide or alter insurance coverage.

If a Member purchases a DFW, Zipcar will waive that Member's responsibility for all or a portion of the applicable Damage Fee, based upon the buy down amount (all or partial) of the DFW purchased. A DFW applies only to the specific Member purchasing the DFW. A DFW may also be limited to specific types or classes of Zipcar vehicles. Before reserving a Zipcar vehicle, Members should confirm whether any previously purchased DFW applies to the Zipcar vehicle being used. The purchase of a DFW is non-refundable.

The cost of the DFW will vary based upon, among other things, the term/type of DFW purchased (annual, monthly or per reservation), Damage Fee reduction amount (all or partial), membership location, driving experience and similar factors. For annual or monthly waivers, the DFW is limited to the period stated at the time of purchase; after which, if you elect not to renew or repurchase or cancel a DFW, you will be once again responsible for the full Damage Fee. A per reservation DFW applies only to the specific reservation for which it is purchased and is not transferable in any manner.

The elimination or reduction of liability for the Damage Fee through the purchase of a DFW will not apply, and previously purchased DFWs may be terminated by Zipcar, if you (1) use the vehicle in violation of this Contract, including if you permit any other person to drive a Zipcar vehicle, engage in any prohibited use of a Zipcar vehicle or, purposely or through negligence (e.g. by putting the wrong type of fuel in a vehicle), damage a Zipcar vehicle or third party property; (2) have had your membership suspended or terminated by Zipcar and/or have two at fault incidents in a Zipcar vehicle involving property damage or any third party; (3) fail to close and lock all windows, doors, the bonnet and boot and the vehicle is stolen, damaged or vandalized; (4) fail to notify Zipcar immediately after an accident or loss; or (5) fail to pay any other amount due under this Contract.

6.
Insurance
6.1
Any active Zipcar Member in good standing will be provided with comprehensive motor cover when driving a Zipcar vehicle, subject to the Member fulfilling their obligations as set out in this Contract.

6.2
Zipcar vehicles are insured in conformity with the European Directive 2009/103/CE concerning vehicles insurance and 2010/c 332/a concerning the minimum amounts of coverage for civil liability for any driving in the European Union. Indemnity is granted under the Zipcar insurance policy to the Member and is subject to all its terms, conditions and exclusions.

6.3
Subject to the Damage Fee described in clause 5.2 above, there is cover for loss or damage to the Zipcar vehicle. However there is no cover for any damage caused by unreasonable carelessness or negligence. In these instances the Member will be fully liable for the cost of repair and/or replacement and any related costs.

6.4
The following items are not covered by the insurance: damage to a Zipcar vehicle's tyres, windscreens, windows or fuel contamination. Members will be fully liable for the cost of any such repairs including replacement parts.

6.5
In addition, there is no cover for the theft of personal belongings from a Zipcar vehicle, or any personal accident benefits.

6.6
For further information on the comprehensive motor cover please contact us by email as set out in 7.1.

7.
Term and Termination
7.1
This Contract shall commence upon the acceptance by Zipcar of the Member's completed membership application and the payment by the Member of any applicable fees. The term of this Contract shall continue until such time as membership is cancelled in accordance with this clause 7. The Member has the right to cancel this Contract within fourteen (14) days without giving any reason. The cancellation period will expire after fourteen (14) days from the day of commencement of this Contract. To exercise the right to cancel, the member must inform Zipcar of its decision to cancel this Contract by a clear statement by email to services@zipcar.co.uk or by calling us at 0333 240 9000. The Member may use the model cancellation form provided in Schedule 6, but this is not obligatory.

7.2
If a Member cancels this Contract and its membership within the cancellation period and before we provide any vehicle sharing services to the Member, we will reimburse all payments received from the Member.

7.3
A Member can request vehicle sharing services to be provided during the cancellation period. If we provide vehicle sharing services during the cancellation period, the Member will still have the right to cancel this Contract during the cancellation period in which case (a) Zipcar will refund a prorated portion of the Member's annual or monthly membership fee (as applicable) and such refund shall be calculated with reference to the date that the cancellation is exercised, and (b) the Member will be responsible for paying to Zipcar any charges incurred for the use of Zipcar’s vehicles during the cancellation period and any other charges and/or fines incurred by the Member connected to the use of Zipcar’s vehicles during the cancellation period.

7.4
After expiry of the cancellation period, a Member may terminate this Contract and its membership upon one (1) days’ prior notice by calling us. Please note that no monthly, annual, application or similar fee will be refunded in the event of termination by the Member after expiry of the cancellation period, except as specifically provided in this Contract.

7.5
In addition to the termination provisions set forth in clause 7.6 below, Zipcar may terminate this Contract at any time upon no less than thirty (30) days' notice to the Member, in which event Zipcar will, if applicable, refund a prorated portion of the Member's annual membership fee for the year of termination. With respect to any termination or cancellation of this Contract, the Member shall remain responsible for any fees, costs or expenses incurred prior to termination of this Contract.

7.6
Zipcar may also, upon notice to the Member, immediately terminate this Contract if the Member (a) fails to pay any sum due under this Contract, (b) fails to comply with any term or condition specified in the Contract or any Rules, © is involved in an incident with a Zipcar vehicle that, in Zipcar's reasonable discretion, renders the Member ineligible or inappropriate for continued membership, (d) engages in any activities or conduct that Zipcar, in its reasonable discretion, determines to be inappropriate, negligent, offensive, abusive or otherwise unacceptable; or (e) is not paying the Member's debts as such debts generally become due, becomes bankrupt or insolvent, files or has filed against the Member a petition (or other document) under any bankruptcy or insolvency law or similar law that is unresolved within sixty (60) days of the filing of such petition (or document), proposes any dissolution, liquidation, composition, financial reorganisation or recapitalisation with creditors, makes a general assignment or trust mortgage for the benefit of creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of the Member's property or business. No membership or other fees will be refunded in the event of termination pursuant to this clause 7.6.

7.7
Upon termination, all of the Member's rights to use Zipcar's services and vehicles shall immediately terminate. The Member agrees to return immediately to Zipcar any vehicle or any other property of Zipcar that the Member has in the Member's possession, including, if requested, all Zipcards. Additionally, the Member shall be responsible for and agrees to pay any legal fees, court costs or expenses associated with enforcing the terms of this Contract, whether upon termination or otherwise (including, without limitation, any costs relating to recovering any of the foregoing property or any amounts due and owing to Zipcar).

8.
Limitations of Liability
8.1
Subject to clause 8.5 below, Zipcar shall not be responsible for any loss of, or damage to, any goods in or on the vehicle or in or on any third party vehicle (unless any loss or damage is due to our negligence or failure to carry out our obligations under this Contract).

8.2
Subject to clause 8.5 below, Zipcar shall not be responsible for any personal injury or death in relation to you or any third party arising from the use of a Zipcar vehicle.

8.3
Subject to clause 8.5 below, Zipcar is not liable to a Member under or in connection with this Agreement whether for tort (including negligence), breach of contract, misrepresentation or otherwise, for:

a.
Loss or damage incurred by the Member as a result of any claims made by a third party, unless such loss or damage incurred is due to our negligence or failure to carry out our obligations under this Contract;

b.
Loss or damage incurred by the Member arising from or in relation to either (i) the reservation, supply, operation or use of a Zipcar vehicle or (ii) any vehicle accessories whether supplied by Zipcar or by a Member (luggage racks, bicycle racks, baby seats and the like – the Member is responsible for the safe installation of such accessories and must check the condition of such accessories before each use), unless such loss or damage incurred is due to our negligence or failure to carry out our obligations under this Contract; or

c.
Loss of profit, revenue, goodwill, business opportunity or anticipated saving suffered by the Member, even if foreseeable or if Zipcar has been advised of the possibility of such losses.

8.4
Subject to clause 8.5 below, in no event shall Zipcar's total aggregate liability under or in connection with this Agreement, whether for tort (including negligence), breach of contract, misrepresentation or otherwise:

a.
for third party property damage, exceed the amount of five million pounds sterling (£5,000,000); and

b.
for all other loss or damage, exceed an amount equal to the aggregate membership and vehicle usage fees paid and payable by the Member during the twelve (12) month period prior to the first date on which an event giving rise to the liability occurred.

8.5
Nothing in this Agreement shall limit or exclude Zipcar's liability for personal injury or death arising out of its negligence or the negligence of its employees, agents or subcontractors, for fraud or fraudulent misrepresentation, or for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.

8.6
Any liability of Zipcar which falls within clause 8.5 will not be taken into account in assessing whether the financial limits in clause 8.4 have been reached.

9.
Miscellaneous Provisions
9.1
By applying for membership and becoming a Zipcar Member, the Member represents and warrants to Zipcar that the Member has received all explanations as the Member may have reasonably requested concerning the content of this Contract, including all Schedules, and that the Member has carefully reviewed and understands the Member's commitments and obligations hereunder. The Member also represents that the Member has reviewed and understands the Zipcar Privacy Policy and acknowledges that any information shared by, or collected from or about, the Member may be used by Zipcar in accordance with the terms of the Privacy Policy as it may be amended from time to time.

9.2
The rights granted to the Member under this Contract are not assignable or transferable, in whole or in part. Any attempt to transfer this Contract without the written consent of Zipcar shall be void and of no force and effect.

9.3
Zipcar may transfer its rights and obligations under this Contract to a member of the Avis Budget Group. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under this Contract. If you are unhappy with the transfer you may contact us by email or by phone to end the contract within fourteen (14) days of us telling you about it and we will refund to you any payments you have made in advance for services not provided.

9.4
No delay or omission by Zipcar to exercise any right or power occurring upon any non-compliance or default by the Member with respect to any of the terms of this Contract shall impair any such right or power or be construed to be a waiver thereof. Any waiver by Zipcar of any covenant, condition, or agreement to be performed by the Member shall not be deemed to be a waiver of any prior or subsequent breach of the same, or of any other covenant, condition, or agreement hereunder. Unless stated otherwise, all remedies provided for in this Contract shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.

9.5
If any term, provision, covenant or condition of this Contract is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Contract had been executed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.

9.6
A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

9.7
This Contract is governed by the laws of England and Wales. All disputes hereunder shall be resolved solely in the English courts. The parties hereby consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defences otherwise available.

9.8
Any notices or communication required or permitted to be given to the Member shall be in writing and shall be sufficiently given if delivered by email or mailed to the Member at the email or postage address provided to Zipcar in the Member's completed application or as updated by the Member and on file with Zipcar. Any notices or communication required or permitted to be given to Zipcar shall be in writing and shall be sufficiently given if delivered via email or sent by registered post as follows:

Zipcar (UK) Ltd. (Company Registration Number 04525217)
10-12 Semley Place
London
SW1W 9QL
Email Address: services@zipcar.co.uk

Any notice delivered via email shall be deemed to have been received on the first business day after which it was sent, unless the sending party is notified that the email address is invalid. Any notice sent by letter shall be deemed to have been received on the fourth business day after it was posted.


Again thanks very much for responding!
CF2019
QUOTE (hcandersen @ Tue, 29 Jan 2019 - 22:16) *
OP, let's inject an element of realpolitik into this.

Do you use Zipcar regularly, do you depend on them (I drive a lot around London and have done for over ten years,) If so, then you will not want to kick up an unnecessary fuss regarding a penalty that in all probability you would have had to pay anyway - you don't know you did not commit a contravention, it appears you've trawled the internet looking for a straw to clutch.

Other than this, if you want to pursue Zip, then this could only be for breach of contract, nowt to do with parking other than the tangential issue of whether they or VW were actually liable for the penalty. But whether VW were liable for the penalty and Zip for an internal contract charge from them or Zip directly responsible doesn't matter a great deal: what practical, as opposed to theoretical, legal action would you be inclined to take?

Life's full of conflicting priorities, I'm afraid.


I do use Zipcar fairly regularly and have done for a few years (trouble free) BUT I'm also a member of several other car clubs and use them just as regularly so retaining my membership with Zipcar isn't the most important factor to me, especially when they pull a stunt like this. Thanks for your response.
CF2019
QUOTE (cp8759 @ Tue, 29 Jan 2019 - 22:26) *
I do think it's rotten that zipcar think they know enough about the law to determine that there can be no appeal. Any follow up letter should specifically query what legal qualifications the manager who made this decision holds.


This is specifically what has got to me. A draft email I had written was pretty much going down that road - asking what legal qualifications the manager that made this decision holds and how he came to that decision - is there a record of this, is it transparent? If Zipcar are claiming I have to appeal to them, what is their process, how are their decisions made etc..?

Another reason I'm pursuing this is I have a strong feeling they paid the fine before even informing me and now they're covering their backs.

QUOTE (Neil B @ Tue, 29 Jan 2019 - 23:06) *
QUOTE (hcandersen @ Tue, 29 Jan 2019 - 22:16) *
Other than this, if you want to pursue Zip, then this could only be for breach of contract, nowt to do with parking other than the tangential issue of whether they or VW were actually liable for the penalty. But whether VW were liable for the penalty and Zip for an internal contract charge from them or Zip directly responsible doesn't matter a great deal: what practical, as opposed to theoretical, legal action would you be inclined to take?

Sounds more like a case of defending rather than pursuing.

Same applies about Zip use in future.


What practical legal options do I have? Would it be a case of waiting for them to take me to court? Should I pay and then take them to a small claims court? This is what angers me - the PCN process exists to avoid this - with a clear appeal and adjudication process. Now it seems Zipcar are saying pay and there's no way to question that. Theoretically they could pass on any charge to their members?

Are Zipcar regulated within the UK? I've found BVRLA.




Anyway, thanks again everybody for your responses so far. I only found this forum over the last week but the fact it exists and people give up their time to help others like this is an excellent reminder of the good in the world, that it does exist. smile.gif
cp8759
QUOTE (CF2019 @ Tue, 29 Jan 2019 - 23:18) *
I do use Zipcar fairly regularly and have done for a few years (trouble free) BUT I'm also a member of several other car clubs and use them just as regularly so retaining my membership with Zipcar isn't the most important factor to me, especially when they pull a stunt like this. Thanks for your response.

They've got you on this one under paragraph 11.4 of schedule 1:

The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion.

However, your comeback is section 62 of the Consumer Rights Act 2015: http://www.legislation.gov.uk/ukpga/2015/15/section/62

(1) An unfair term of a consumer contract is not binding on the consumer.
(2) An unfair consumer notice is not binding on the consumer.
(3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.


You can clearly argue that a term with effectively gives zipcar the status of judge jury and executioner is an unfair term, as the managers at zipcar are not a tribunal or even experts in traffic law and they are in no position to determine whether an appeal to the tribunal would be successful. Whether this would defeat the terms of the contract in court I cannot say with certainty as I'm not aware of any binding precedents, but it does seem a bit rotten, especially when we know that the competent tribunal would have almost certainly allowed an appeal at this location. Personally, I would take them on just to teach them a lesson, but then I'm a very litigious person.

In terms of the most practical approach, I would suggest if you're not that fussed about zipcar membership, just cancel any cards they have details for, and any direct debits, and tell them that if they want the money they can sue you (they almost certainly won't). If they've already taken the money, you'll have to use the small claims track in the county court to try and get the money back, if that's the course you want to pursue.

Whichever approach you take, I'm more than happy to draft something you can send to them.
Neil B
QUOTE (CF2019 @ Tue, 29 Jan 2019 - 23:32) *
Are Zipcar regulated within the UK? I've found BVRLA.

I haven't looked at your link but Zip are Avis, a big company.

cp has confirmed what I intially said about 'fair terms' but I guess you have to weigh up the risks if they take you to court.
I don't know what the potential risk amounts to.

cp said 'managers' but I think it's more likely a bunch of kiddies following instructions without any understanding of what they are doing.
hcandersen
Action:
Stop posting in the thread. Use external hosting site. Your thread is becoming unworkably long which makes finding the needles in your haystack difficult.

You posted that ('yesterday' - pl don't do this, either post docs including dates or state date of issue, it makes review so much easier) they emailed stating inter alia:

Therefore, I feel I must inform you that as the balance is due it will continue through the debt process. If left unpaid this will go to debt collections which could affect your credit rating or ability to obtain credit with other businesses.

So, having been a member for some time, what are their debt processes? We're used to hirers making charges against registered cards, hence cp's advice. But this draconian measure might be unnecessary.

You must confirm.

Is it as per Neil B i.e. them pursuing you, or will they charge directly, which is the norm?

One step at a time.
Mad Mick V
Going back to post 3 there seem to be three core issues:-

1) Under the terms of the parking/MTC legislation there appears no route whereby ZipCar can pass liability for the penalty to the OP;

2) Subject to the above, whatever the OP signed, ZipCar should not be able to enforce a contract which is based on illegality;

3) Against that, in signing the contract the OP accepted the reasonableness of it having terms which stated he would be responsible for penalty charges.

As hca has said, "what practical, as opposed to theoretical, legal action would you be inclined to take?"

TBH the only route I can see is under the Unfair Contract Terms Act 1977 and a submission to the Small Claims Court to recover the penalty charge. Not worth the bother IMO.

Mick
cp8759
QUOTE (Mad Mick V @ Wed, 30 Jan 2019 - 10:10) *
TBH the only route I can see is under the Unfair Contract Terms Act 1977 and a submission to the Small Claims Court to recover the penalty charge. Not worth the bother IMO.

Only if the OP was using the car in the course of business. If it was for private use (which includes commuting), he has to use the Consumer Rights Act 2015 instead.
hcandersen
But is he the pursuer or the pursued?

Until this is resolved, the matter can wait.
CF2019
QUOTE (cp8759 @ Tue, 29 Jan 2019 - 23:36) *
QUOTE (CF2019 @ Tue, 29 Jan 2019 - 23:18) *
I do use Zipcar fairly regularly and have done for a few years (trouble free) BUT I'm also a member of several other car clubs and use them just as regularly so retaining my membership with Zipcar isn't the most important factor to me, especially when they pull a stunt like this. Thanks for your response.

They've got you on this one under paragraph 11.4 of schedule 1:

The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion.

However, your comeback is section 62 of the Consumer Rights Act 2015: http://www.legislation.gov.uk/ukpga/2015/15/section/62

(1) An unfair term of a consumer contract is not binding on the consumer.
(2) An unfair consumer notice is not binding on the consumer.
(3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.


You can clearly argue that a term with effectively gives zipcar the status of judge jury and executioner is an unfair term, as the managers at zipcar are not a tribunal or even experts in traffic law and they are in no position to determine whether an appeal to the tribunal would be successful. Whether this would defeat the terms of the contract in court I cannot say with certainty as I'm not aware of any binding precedents, but it does seem a bit rotten, especially when we know that the competent tribunal would have almost certainly allowed an appeal at this location. Personally, I would take them on just to teach them a lesson, but then I'm a very litigious person.

In terms of the most practical approach, I would suggest if you're not that fussed about zipcar membership, just cancel any cards they have details for, and any direct debits, and tell them that if they want the money they can sue you (they almost certainly won't). If they've already taken the money, you'll have to use the small claims track in the county court to try and get the money back, if that's the course you want to pursue.

Whichever approach you take, I'm more than happy to draft something you can send to them.


Thank you, At the moment I'm trying to work out my options and the processes/ costs involved? Because of how I feel about the company I like the idea of beating them in court but I don't know how likely that would be. They've threatened to start a 'debt collection process' that could result in a mark on my credit file - is that possible/ likely?

QUOTE (hcandersen @ Wed, 30 Jan 2019 - 08:05) *
Action:
Stop posting in the thread. Use external hosting site. Your thread is becoming unworkably long which makes finding the needles in your haystack difficult.

You posted that ('yesterday' - pl don't do this, either post docs including dates or state date of issue, it makes review so much easier) they emailed stating inter alia:

Therefore, I feel I must inform you that as the balance is due it will continue through the debt process. If left unpaid this will go to debt collections which could affect your credit rating or ability to obtain credit with other businesses.

So, having been a member for some time, what are their debt processes? We're used to hirers making charges against registered cards, hence cp's advice. But this draconian measure might be unnecessary.

You must confirm.

Is it as per Neil B i.e. them pursuing you, or will they charge directly, which is the norm?

One step at a time.


QUOTE (hcandersen @ Wed, 30 Jan 2019 - 13:09) *
But is he the pursuer or the pursued?

Until this is resolved, the matter can wait.


I believe I am currently the one being pursued. They are currently trying to get £65 + £15 'processing fee' from me.
Neil B
QUOTE (CF2019 @ Thu, 31 Jan 2019 - 13:50) *
Thank you, At the moment I'm trying to work out my options and the processes/ costs involved? Because of how I feel about the company I like the idea of beating them in court but I don't know how likely that would be. They've threatened to start a 'debt collection process' that could result in a mark on my credit file - is that possible/ likely?

I believe I am currently the one being pursued. They are currently trying to get £65 + £15 'processing fee' from me.

They would have actually take you to court and win to get any order against you.

You would have the opportunity to defend.

Again, others more knowledgeable on such process.
cp8759
QUOTE (CF2019 @ Thu, 31 Jan 2019 - 13:50) *
Thank you, At the moment I'm trying to work out my options and the processes/ costs involved? Because of how I feel about the company I like the idea of beating them in court but I don't know how likely that would be. They've threatened to start a 'debt collection process' that could result in a mark on my credit file - is that possible/ likely?

Cancel any direct debits, if they have any cards on file report them as lost and get replacements, this stops them just helping themselves to your money. The "debt collection process" simply means they'll start sending you ever more intimidating letters saying they will take legal action against you, you owe the money bla bla bla...

When you get the first of these letters, post it on here and I will write a response for you. The letters will then stop, as debt collection processes are designed for debts which are not really up for dispute (these processes are often farmed out to external debt collection agencies); the reason is that 1) they don't know the law and if you're making a reasonable legal argument they won't be able to formulate a meaningful reply and 2) if you make it plain to them that you dispute the debt and if they want to take it further you'll see them in court, it'll be put in the "not worth the effort pile".

That's quite aside from the fact that it isn't cost effective to make a court claim against you if you're going to defend the claim, as the costs in terms of staff time would be irrecoverable for them (i.e. you don't get costs in the small claims track).
hcandersen
What?

You've not lost any cards and we don't recommend lying, whatever the circumstances.

And we don't know that The "debt collection process" simply means they'll start sending you ever more intimidating letters saying they will take legal action. There is another Zip thread suggesting that the contractual remedy is to charge your card.

OP, I would caution against this, step back and take a deep breath, see the evidence against you and decide what are practicable objectives given the time you're prepared to devote to this.

This is not the Scopes trial.

What does your contract provide?
Mad Mick V
I agree this is getting silly.

Pay the damn charges then complain to ZipCar. Otherwise it escalates out of all proportion.

As we have already advised ZipCar's position in trying to recover the PCN +fees is weak. IMO they might well be acting illegally but will respond by saying the OP signed a contract where he accepted the reasonableness of it having terms which stated he would be responsible for penalty charges.

As a customer, query their processes particularly not allowing a hirer any say in whether the contravention occurred. Wouldn't it be better for them to ask a hirer whether he or she wants to fight it? Is there no standing process at ZipCar which allows this fundamental right to defend oneself ?

Put it to them that not being the true owner of the vehicle they have no right to "pass the parcel" of a PCN to you, a third party, under the legislation.

Lay it on thick and see how they respond.

Mick
cp8759
QUOTE (Mad Mick V @ Fri, 1 Feb 2019 - 14:55) *
Pay the damn charges then complain to ZipCar. Otherwise it escalates out of all proportion.

If the OP pays the charges he'll never see his money again unless he takes them to court, and there it might be questioned why he paid. There's nothing to escalate, as Avis have paid the penalty already, so I'm not sure what you're referring to?
cp8759
As things stand, the OP is being pursued for a contractual debt which, to say the least, is disputed. How anyone can sensibly advise that the best course of action is to pay first and argue later is beyond me, the OP should refuse to pay and if zipcar want to take it further, they can file a claim in the county court. In the unlikely event they take it that far, the OP can file a defence, with a good chance of success.
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