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

[m2000]

Thanks for the replies guys, much appreciated... keep them coming!!

 

 

I am away from home until tomorrow with work, will dig out the car policy and come back with the info requested.

 

 

"you need evidence of this by way of a statement from the person who told you. Perhaps by telling them that you are being asked to pay for the new guys upgrade - try to get the stateemnt signed"

 

I think the above will be impossible... the person who told me this still works there and has already told me it is strictly off the record

 

 

"Is there any other wording in the policy about trying to minimise costs to the employee by attempting to reassign the vehicle where possible? If so, this could very well work to your advantage."

 

I will double check the wording, but off the top of my head a new starter has two options, basically order a "benchmark car" which will either be a brand new Vauxhall Vectra or Astra, or alternative vehicle in the "car pool" OR they can choose to upgrade from a benchmark vehicle and pay the additional amount each month.

 

 

I will confirm the above tomorrow when I have a copy of the company car policy in front of me.

 

It is all very stressfull, I even offered them a monthly amount of £50 on a without prejudice basis as a matter of goodwill but without excepting liability... they flately refused this and demand a minimum of £150 per month,. This was all prior to the court proceedings commencing.

 

 

The thing that really annoys me is that it appears to be one rule for me and another rule for others. I resigned and they are persuing me for the costs, while people who were unsuccessfull within the company and were "forced out" were let off paying anything back!!! all this despite the car policy clearly stating that "ALL persons leaving" will be liable for any upgrade costs...

[m2000]

Hi Again,

 

Well, the legal assistance on my home insurance are no use whatsoever... waste of money. The basically said speak to CAB! grrrrrrr....

 

So back to square one.. I need to defend it myself but am getting seriously concerned that I am not going to be able to get my point accross.

 

Please can anyone help with a basic idea of how to write the defence??

 

Thanks

[Bigredbus]

Hi,

 

It seems that the only way is now to agree to repayment on a reasonable and affordable basis...

 

In order to resist their claim, you would probably have to have written statements from those colleagues who have not been requested to repay their 'trade up contributions'... and even so, solicitors would probably put forward an element of discretion...

 

You should consult a lawyer/specialist...

[m2000]

Hello Bigredbus,

 

I have already previously offered £50 a month on a without prejudice and without accepting liability basis, purely to keep the issue out of court and get it resolved.

 

The solicitors have come back saying they want a minimum of £150 per month, which I have explained is totally unaffordable for me.

 

[m2000]

.......

[IdaInFife]

hiya,

 

I am going to move this to legal issues for you for more help.

 

 

I think you will nees to somehow get info on where the car is now?

i don't know if this is from your employer or the car conmpany

 

ida x

[m2000]

Thanks Idainfife, much appreciated.

 

I have it on good authority that the car in question is in use by a member of staff with the same position I had (although they will not provide me a written statement due to worries that Employer will not be happy)

[Jasper1965]

I would CPR the company in an attempt to establish whether the 'new starter' who has your old car is paying an upgrade amount each month in respect of the vehicle.

 

If they are then the perceived loss which the company are claiming from you does not exist or at least does not exist in each month this person has had the vehicle.

If they are not paying and are instead enjoying a free upgrade then the company has been negligent and has wilfully failed to minimise it's perceived loss.

[m2000]

I would CPR the company in an attempt to establish whether the 'new starter' who has your old car is paying an upgrade amount each month in respect of the vehicle.

 

If they are then the perceived loss which the company are claiming from you does not exist or at least does not exist in each month this person has had the vehicle.

If they are not paying and are instead enjoying a free upgrade then the company has been negligent and has wilfully failed to minimise it's perceived loss.

 

 

Hi Jasper1965,

 

Thanks for your reply.

 

I have queried this already. They came back with "my Client assures me that there is no 'double recovery' taking place."

 

Basically, they claim they are not charging the new user of my old car any upgrade costs. So I am paying for him to drive around in a better than standard car...

[MrShed]

As stated above, I would defend on three fronts.

 

1) That there is doubt in your mind as to double recovery is taking place, and as such until it is proven that the new employee is not, and has never been paying the upgrade cost, you cannot establish liability.

2) If point 1 is disproven, then your second defence should be that, as company policy is to charge the upgrade cost to the employee, why have these upgrade costs NOT been borne by the new employee. Key to my mind is that if they have in fact allowed this, they have prevented any possible mitigation of loss (which they are duty bound to do) as they are neither enforcing the upgrade payment on the employee, NOR have they allowed anyone wanting the vehicle to take it and mitigate your loss by paying the upgrade.

 

The third is not really a defence, but if both the points above fail, then I would be doing as mentioned above and offer £50 a month in court as that is all you can reasonably afford - you may need to take a sheet of income and outgoings to show this.

 

To my mind, this is grossly unfair. Whether it is illegal is another matter, but points 1 and 2 may well help - in particular I dont think mitigation of loss has yet been mentioned and I would feel is important.

[MrShed]

In fact to my mind I can sum this up more succinctly.

 

Contract law basically requires the actual financial loss to be paid to the injured party, but this loss must be mitigated.

 

Currently, you have no proof of actual financial loss, and apparently no attempt to mitigate.

[m2000]

Hello MrShed,

 

Many thanks for your kind reply, it is relaly appreciated.

 

How do I word the defence I need to submit, I gather there is a certain structure to how it should be written?

 

I am worried I am going to mess up by not laying it out/wording it in a proper manner!

[MrShed]

I wouldnt even like to go there I'm afraid - not my area of expertise. Hopefully, someone can help...

 

If you dont get a response soon, use the alert button (warning triangle in each post) to try and get a mods attention, see if any of them can help.

[m2000]

Thanks MrShed

[MrShed]

One other thing to mention in your defence is that you need to see a schedule of payments to the lease company.

 

If the previous employer has NOT been paying the upgrade cost to the lease company, but have in fact been waiting the reclaimation of money from you, then their interest claim is non-existant...

[MrShed]

Thanks MrShed

 

You are welcome - best of luck, I really hope you get this sorted, as as I say I feel its grossly unfair.

[Jasper1965]

 

 

I have queried this already. They came back with "my Client assures me that there is no 'double recovery' taking place."

 

Basically, they claim they are not charging the new user of my old car any upgrade costs. So I am paying for him to drive around in a better than standard car...

 

Then as MrShed states your defence must focus upon why the company has failed to mitigate it's perceived losses, the new driver has the benefit of the upgraded vehicle at your expense, one might ask in Court why the terms of the vehicle upgrade policy might be applied so rigidly in your instance yet apparently be waived for this current employee. There is a grave inconsistency of this companies application of it's own t&c's, and in practice this inconsistency has been to your detriment. had the company applied their own t&c's equally then the new driver would be bearing the upgrade cost, any shortfall claimed against you in Court has arisen due to a direct (and provable) failure of the company to adhere to it's own terms and conditions under this contractual agreement.

 

I would also be requesting the terms of the lease agreement itself to establish what liability would actually have been due to your ex-employer in the event that they had returned the upgraded vehicle to the lease company upon your termination of employment. It is likely that a penalty payment might have been due but it would be useful to establish exactly how much the company would have been liable for to the lease company had they returned the vehicle or downgraded the vehicle upon your leaving. It is possible that had the company returned the vehicle immediately and then leased a standard car on a replacement contract for the new employee that the full costs of the upgrade might have been mitigated at source, again something for the defence.

It would appear that having you bound by the terms of the agreement the company has made no effort to behave in a manner which would mitigate any loss either by returning the vehicle early, downgrading the vehicle lease (if possible) or charging the new employee the shortfall which this companys own T&C's state they should.

 

None of this is to stop you putting them to proof that they are not charging the current driver the upgrade charge at any level obviously.

[MrShed]

I would also be requesting the terms of the lease agreement itself to establish what liability would actually have been due to your ex-employer in the event that they had returned the upgraded vehicle to the lease company upon your termination of employment.

 

Thats a VERY good point Jasper.

[m2000]

Thanks Jasper1965.

 

I agree totally with what you have said. I jsut need to get it all worded and laid out in a defence submission.

 

Is anyone aware of anyone that can help with this? I would use a solicitor but do not have sufficient funds at present.

 

Many thanks, yet again you are all very helpful.

[MrShed]

I am going to have a bash at points of defence - but PLEASE dont use them unless someone else thinks they are OK....

 

1) The defendant was an employee of XXX for period of time XXX.

2) The details in the POC outlined by the Claimant surrounding the notice period given, as well as the details within the contract of employment are not disputed.

3) The defendant disputes the figure owed, and whether any monies are owed at all, based upon the following areas.

4) The Claimant has granted usage of the vehicle in question to a new employee within the company.

5) The Claimant has failed to demonstrate to the defendant that this case is not a double recovery, other than a written statement that no double recovery is taking place. There has been no proof provided that the new employee is not, and has never been, paying for the upgrade lease costs in question.

6) If the Claimant can prove that no such payments have been occurring, then the Claimant has failed in his duty to mitigate the loss due to breach in contract.

7) Moreover, the terms and conditions relied upon by the Claimant have not in fact been enforced by them in other circumstances. Specifically in the case of not enforcing upgrade payments upon the new employee, but also by not enforcing upgrade repayment on the previous two employees who left the employment of the Claimant - hence the defendant can only assume that the decision to enforce in this case is inconsistent and based upon discrimination for some unknown reason.

8 ) The Claimant has furthermore prevented any further possibility of mitigating loss by providing the vehicle to this new employee, therefore preventing the return of the vehicle to the lease company (at lower overall cost) or by re-allocating to an employee and charging this employee the upgrade cost, as detailed in the contract of employement.

9) Furthermore, the Claimant has provided no proof of the actual financial loss, and has not demonstrated that the alleged money owed has been paid to the third party lease company.

10) If such payments have not been made, then no interest will be due regardless of the results of the rest of the claim.

11) The defendant therefore wishes to defend the entire claim entered by the Claimant, as the Claimant has made it clear that no further correspondance will be entered into, and hence the defendant has no way of acquiring evidence (including but not limited to: Schedule of Payments to the lease company with proof of payment, schedule of payments made by the new employee in possession of the vehicle to the Claimant, and full Terms and Conditions of the lease agreement detailing early termination charges) without defending in court.

Edited February 13, 2010 by MrShed

[m2000]

Thanks again MrShed.. that is great!

 

If anyone can think of other points, and anything that should be changed please shout!!

[Jasper1965]

What I'm trying to say is that the company are seeking enforcement of its own T&C's in Court, and yet the Court claim has arisen simply because the Company has failed to apply the same T&C's of this contract against a third party (the new driver). Quite how you would word this is difficult but I would be looking to plead that the claim should be against the new employee not yourself if the terms and conditions of this agreement are to be subjected to a judicial decision. The devil in me says that there are three primary parties involved yet only two named in Court. Since the new driver has the benefit of the upgraded vehicle to your detriment I would be looking to attach this person to this claim by way of a part 20 counterclaim against the company and the individual involved, stating that their failure to pay the upgrade cost is the sole reason the claim against you has been raised and counterclaim the full amount claimed against you from the employee.

 

Subject the lot to a judicial decision and the Judge would surely have to accept that by enforcing the t&C's against yourself they would also need to enforce them against the new driver equally in which case most of the financial liability would have to be transferred from yourself to the driver.

Without this new driver named as a party the judge would be looking at the contract in isolation, by counterclaiming under the same actionthe judge will be forced to look at it very differently asking why the company seek enforcement against 'A' yet are content for 'B' to be in perpetual breach of exactly the same term.

 

Complicated and at this stage just a suggestion which hopefully somebody might be able to elaborate upon or dispel.:-|

[MrShed]

I've added to my points above.

[Jasper1965]

11) The defendant therefore wishes to defend the entire claim entered by the Claimant, as the Claimant has made it clear that no further correspondance will be entered into, and hence the defendant has no way of acquiring evidence

 

 

Duty of disclosure continues during proceedings

CPR 31.11

 

(1) Any duty of disclosure continues until the proceedings are concluded.

 

(Nice work BTW MrShed)

[MrShed]

How should that be reworded then Jasper?

 

And thanks its rough and ready but better than nothing lol.