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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11563
Experience:  30 years as a practising solicitor.
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I recently returned a hire van to the rental location and

Customer Question

I recently returned a hire van to the rental location and damaged the roof when I attempted to enter their car park. The terms and conditions of the rental make me accountable for the cost of that.I have asked the hirer to take some responsibility based on mitigating circumstances. The rental location is on a dual carriageway and all the space was occupied, leaving me nowhere to park the van. Being in a dangerous position I was eager to get off the road which is why I attempted to enter their car park. From the angle I was at I couldn't see the height limitation. The hirer has so far not agreed to help out on this basis.Concerned by the unsatisfactory location and facilities of the rental company that led to the accident, I checked with the local council and have found out that they do not have planning permission to operate a van rental business from this location, which is not surprising to me as the way it operates s clearly dangerous and this is not the first time that this kind of accident has occurred there.Does the fact that they are operating a business without due planning permission strengthen my argument or invalidate their rental terms and conditions.Kind regardsJeff Cowell
Submitted: 1 month ago.
Category: Law
Expert:  JGM replied 1 month ago.

Thank you for your question and for your detailed narrative. The question to be asked here is whether the hire company have been negligent in some way so as to be held contributory negligent for the accident. As soon as you drove towards their premises your narrative states that you were in a dangerous situation and keen to get off the road. That in itself would suggest that they are contributory negligent for not providing a safe environment for customers to drive vehicles into their premises. The fact that there is no planning permission strengthens your case. I would refuse to pay and if they take it further I consider you would have an excellent defence. The rule is that if there is underlying illegality they can't benefit from that. I hope that helps. Please leave a positive rating so that I am credited for my time.

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Customer: replied 1 month ago.
Thanks. That was very helpful.
Customer: replied 1 month ago.
Thanks for your earlier advice. I have since met with the owner of the van hire company who is of the opinion that he has a valid planning permission for his business. However, whist he does have sui generis planning permission for the location, which is the classification that a van rental would normally fall under, the actual Planning Permission and Transport Supporting Statements restrict the usage to an office and community support centre (See attached documents). My question therefore is whether or not he is operating a retail van hire business with legal planning consent or not.The owner has proposed to reduce the repair cost from 2460 to 1750 under the circumstances but should I push for a better deal or even propose nothing on the basis of his contributory negligence and operating a business without planning permission on a site the is unsuitable - which invalidates his terms and conditions.Having trouble adding files so will send separately.Kind regardsJeff Cowell
Customer: replied 1 month ago.
I don't seem to be able to add files for some reason so here is the link to the planning document that you can copy into your browser:https://planapp.bracknell-forest.gov.uk/online-applications/files/B77404360D32C2FDE1D9D21272C5ECB7/pdf/13_00870_FUL-GRANTED-2370822.pdf
Expert:  JGM replied 1 month ago.

I would hold out. There has to be an implied term in the contract that there is a safe route to the premises. As regards ***** ***** question you have to ask is whether you consider you were in any respect to blame for the incident or was it entirely because of the locus.

Customer: replied 22 days ago.
Please have a look at the post recent correspondence that is attached. In the end, after a bit of negotiation I offered to pay the amount suggested by the van hire company in order to get this off my mind, however given their response I am less inclined to pay.They seem to believe the they have planning permission for their business but it's a grey area to be honest. More importantly they think that as there are no parking restrictions on the dual carriageway bordering their parking area, it is therefore reasonable for you to leave the van on a public road and that therefore they have met their duty of care to me in relation to their contributory negligence. However, they do not communicate the to you as a suitable way of leaving the vehicle on return, if their parking spaces are full - it is u to you to figure it out.So, net net - I either pay them on Money or not. having reviewed the attached correspondence what would you advise.By the way, in addition to mr Webb's comments concerning delays in dealing with this matter, I would point out that I only received final details of their insurance policy from him last week after two months waiting and the same applies to the separate estimate for the roof damage that was also received last week - furthermore this estimate is from a different company to the estimate for the two repair jobs that they did send initially and is somewhat higher.Kind regardsJeffUnfortunately, I am still unable to attach files to this mail so I ill copy paste into following mails the correspondence.
Customer: replied 22 days ago.
Dear Mr CowellThank you for your without prejudice email. I am somewhat confused as you are either accepting our without prejudice offer or you are not; you cannot accept it 'without prejudice'.As you know our contract is with you not with your company however I have said we would be prepared to issue a receipted invoice to your company, once paid, as you stated when we met you had used it for company business. You have no credit account with ourselves and therefore we cannot raise an invoice on our system in advance until paid
As it will be raised on our cash account. Once paid we will send you a receipted cash account invoice to your companyIn our meeting you said you would decide promptly and you have taken a further 10 days. If the £1750 plus vat is paid by the close of business on Monday next 2nd October such sum will be accepted in full and final settlement otherwise you should consider our without prejudice offer withdrawn and we will look to you for the entire sum plus total loss of useI therefore await hearing from youKind regardsTom Webb
Sent from***@******.***On 29 Sep 2017, at 09:34, "Jeff Cowell" <*****@******.***> wrote:
Dear Mr Webb,
Thank you for your clarification.
On reflection, I have decided to accept your offer without prejudice and would be grateful if you could invoice the amount to Living Earth Tables Ltd, 27 Greenham Wood, Bracknell, RG12 7WJ. Please attach the final invoice from the repairer and proof of paymet from Limesquare.
Kind regards
Jeff Cowell
On 25/09/2017, 19:36, "Tom Webb" <*****@******.***> wrote:
Dear Mr Cowell
A couple of points to clarify firstly:
1. I did not say our insurer had agreed to cover the costs for the damage to the side of the vehicle, what I said is that our insurer is prepared to look at and consider the claim; If they pay it will be subject to a £500 excess as it will be classed as a separate claim.
2. I also said if the roof damage was settled promptly we would, without prejudice, take a commercial view and accept £1750 + vat (to include one weeks further loss of use)
As I said when we met, you collected the vehicle from outside the building and there is a height restriction sticker in the vehicle there is also a height restriction sign on our building. As I also said, If you felt there was not enough room to park on our forecourt then you could have parked on the road as there are no parking restrictions on the road; we could then have moved it on to our forecourt. We specifically exclude overhead damage on insurance cover we provide and this is very clearly documented both in the agreement and on an additional sheet we get every hirer to read and sign. I made what I felt was a more than fair goodwill gesture as you explained you had just started in business; it is for you to accept or decline.
I have asked for the original estimate to be split as per your request and enclose two separate quotes; a copy of the side damage will be sent to the insurers
Our insurance excess is £500 and I attach a copy of the full schedule to our policy which confirms this.
I will leave our without prejudice offer open for acceptance until the close of business on Friday next the 29th September after such time you should consider it withdrawn.
I therefore await hearing from you
Kind regards
Tom Webb
Customer: replied 22 days ago.
Dear Mr Webb,Thank you for meeting me last week and talking through the situation.I was very pleased to hear that your insurer has agreed to cover the costs of the side panel damage. I also not that you offered without prejudice to settle the matter if I paid GBP 1750+VAT invoiced to my company towards the remaining cost which I have asked for time to consider.I am sorry that this has taken a bit longer than I thought but I hope that you will find my response below reasonable and satisfactory:As you know, I have stated from the very beginning of this process that I felt that the lack of an available parking spot and the suitability of your premises for a van hire business contributed to the roof accident by not providing a safe environment for customers to drive vehicles into your premises. This is further supported by the planning permission that is on record that states that, due to traffic safety concerns the premises may only be used as offices and community support centre.Even though I have received legal advice to rely on the above to not pay for the damage, I am nonetheless inclined to pay something towards it. In my opinion 50% of the cost would in this case be more than reasonable. I don't have a cost breakdown of the estimate and would be grateful if you could send one, but I believe in our meeting you indicated the total cost was GBP2400; in which case my share would be GBP1200, as a starting point.However, having reviewed your insurance policy further, I would make two points:1. The policy does not prevent you from claiming against the roof repair, even though your terms and conditions prevent that recourse to your customer.
2. There is no excess applied to your policy for drivers of my age although you take a GBP500 deposit from your customers.Both of the above terms could be considered as unfair to your customers.In my case as the GBP 500 excess that I have paid is not a deduction on your policy as far as recovering the side panel repair costs, I would ask that we apply it to the roof damage cost which would mean an additional and final payment of GBP700 +VAT.I hope that this will allow us to close the matter and I look forward to your reply. If you would prefer to discuss over the phone please call me on 07548 795367.Kind regardsJeff CowellOn 25/09/2017, 08:15, "Tom Webb" <*****@******.***> wrote:Dear Mr Cowell
I refer to our meeting on Wednesday and look forward to hearing from you as promised following our discussion
Kind regards
Tom Webb
-----Original Message-----
From: Jeff Cowell [mailto***@******.***]
Sent: 12 September 2017 11:16
To: ***** ***** <*****@******.***>
Subject: EXTERNAL: Re: Meeting concerning hire of and damage to MK65MZX
Dear Mr Webb,
I confirm our meeting at 2pm on Wednesday 20th September at your offices and I look forward to meeting you then.
Kind regards
Jeff Cowell
On 11/09/2017, 21:27, "Tom Webb" <*****@******.***> wrote:
Good afternoon Mr Cowell
2pm on the 20th works fine for me so shall we firm up at that for our meeting?
Kind regards
Tom
Sent from***@******.***
> On 11 Sep 2017, at 16:58, "Jeff Cowell" <*****@******.***> wrote:
>
> Dear Mr Webb,
>
> I am very sorry for the late reply – it was just impossible for me to work from Indonesia during my trip for various reasons. However, I have now attached the completed accident form apart from a couple of sections that seem more appropriate for Limesquare to complete.
>
> My diary is clear for meetings next week, any time after Tuesday morning, so can I suggest 2pm Wednesday if that is convenient?
>
> Kind regards
>
> Jeff Cowell
>
>
>
> From: Tom Webb <*****@******.***>
> Date: Thursday, 24 August 2017 at 09:46
> To: ***** ***** <*****@******.***>
> Subject: RE: EXTERNAL: Re: EXTERNAL: Re: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Cowell
>
> Thank you for your email.
>
> Please see attached Accident Report Form. If you can complete this in detail for the side damage incident and get it back to me as soon as ever possible I will submit it to our insurers for their consideration and revert to you with the outcome
>
> I am in meetings away from the office on the 8th September and away the following week on Holiday.
>
> Can you suggest a day starting w/c 18th September for the meeting please as you are away as of today
>
> Kind regards
>
> Tom Webb
Customer: replied 22 days ago.
62; From: Jeff Cowell [mailto***@******.***]
> Sent: 24 August 2017 09:11
> To: ***** ***** <*****@******.***>
> Subject: EXTERNAL: Re: EXTERNAL: Re: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Webb,
>
> Thank you for your response to my email and for the insurance policy.
>
> I agree that the best way forward would be to arrange a meeting and agree how best to resolve the matter between us.
>
> I am travelling to Indonesia this morning and will be back on 7 September. Could I therefore propose that we meet at 3pm on Monday 11 September. If that is not convenient, then I am available anytime on Tuesday 12 and Wednesday 13 September. If you need the accident report before this, then I will be happy to email one to you.
>
> I look forward to meeting you in person and resolving this matter.
>
> Kind regards
>
> Jeff Cowell
>
>
> From: Tom Webb <*****@******.***<mailto***@******.***>>
> Date: Wednesday, 23 August 2017 at 10:50
> To: ***** ***** <*****@******.***<mailto***@******.***>>
> Subject: RE: EXTERNAL: Re: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Cowell
>
> Thank you for your email and I would respond in Green below
>
> I would suggest the best way forward now is a meeting between the two of us to try and agree something.
>
> We have booked the vehicle in for repair and it goes in on Friday
>
> Please suggest a few dates and times when you can call into our Bracknell office for a meeting
>
> Kind regards
>
> Tom Webb
Customer: replied 22 days ago.
62; From: Jeff Cowell [mailto***@******.***]
> Sent: 17 August 2017 03:45
> To: ***** ***** <*****@******.***<mailto***@******.***>>
> Cc: Bracknell Hiredesk <*****@******.***<mailto***@******.***>>
> Subject: EXTERNAL: Re: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Webb,
> Thank you for your email outlining your position. My position and response to each item is given below in italics:
I understand William gave you a copy of our Insurance Certificate when you called in to see him, sorry I was not in the office that day:
> I visited your office on 4 August in order to inspect a copy of your insurance policy which under article 5.1 of your term and conditions should be available to me. I did this as I had received no response to my earlier request to you for this document. I required this document (Which I am legally entitled to) as I was disputing your claim that the accident to the side panel was down to my negligence and I wished to respond quickly to this. Nobody, including William, who came to meet me as a result of this enquiry, was able to provide a copy of the policy. As you mention, all I received was a copy of the insurance certificate, that was wholly inadequate for my needs and even though I asked William to email me the policy, I am still waiting for it. Please could you provide this document as a matter of urgency as I cannot be held accountable for any delays and associated costs relating to your failure to do so.[Please see attached copy policy]
>
>
> 1. You have damaged the vehicle in two separate accidents:
> As you rightly say, there were two separate accidents, to which I would add were both entirely unintentional and without malice on my part and were not a result of negligence. Furthermore, I have asked that these accidents be treated separately which has not been the case until now.[We have always treated them separately]
> 2. We have offered you the chance to have your own repair estimate carried out in respect of the damage caused but to date you have declined this invitation. Please let us know by the close of business on Thursday the 17th August whether or not you wish to have someone else inspect and estimate the damage. If we hear nothing from you we will have no alternative but to send the vehicle to the body repairer who has provided the estimate to have the repairs carried out as we have a duty to you and ourselves to mitigate loss all round.
> There appears to be some misunderstanding or miscommunication on your part here. At my meeting with William on 4 August I explained that following your email of 3 August giving me three days to carry out my own estimates and committing to mitigate losses on both sides, that I would rely on this commitment on your part to ensure that the estimates were fair and reasonable and I declined to carry out my own estimates. I requested that you go ahead with the repair but asked if you could challenge the need to remove and refit the tail lift to check if this was really necessary. Also, as the two accidents are separate incidents, I asked for the estimate to be broken down for each accident repair, as this may be required for insurance purposes later. I have not received any further information on these points and would ask that you address them, if they have not been correctly communicated to you.[We have had further estimates prepared by another firm and these are available for you to look at when you call in to see me]
> 3. The vehicle remains on hire to you in accordance with our terms and conditions until such time as the vehicle is returned to us repaired and in a rentable condition. We have to date taken a further weeks hire charge:
> Any claim in relation to this will need to fairly take into account any delays and costs that are of your making that do not mitigate my loss. This includes any delays or costs relating to non-provision of the insurance policy or in raising this issue with your insurer, delays or costs associated with moving forward with the repair as agreed (See above) and delays or costs that result from delays in communication.[Everything will be discussed with you at the meeting and we will agree something in respect of loss of use when we meet]
Customer: replied 22 days ago.
62; 4. Overhead damage is specifically excluded from our insurance when any vehicle is hired from us and we would refer you once again to the clauses in our contract together with addendum sheet that covers this aspect; this overrides any insurance policy:
> As I mentioned to William in our meeting, I understand this and legally it would be difficult without the protection of consumer protection legislation to challenge this, even if it is unreasonable or unfair. This is one reason why I have asked for the repair quotation to be separately itemised for this accident which I have not received. In relation to this matter, however, I also mentioned to William and in previous emails that in the interests of fairness and without accepting any liability on your part there are mitigating circumstances concerning this accident that I would ask you to take into account when considering this claim and I welcome the opportunity to discuss that with you. [We can discuss this when we meet but overhead damage is excluded from our policy]
>
>
> 5. As regards ***** ***** damage to the vehicle, whilst we consider this to be negligent damage given the circumstances as to how it occurred, we have asked our Insurance brokers for their viewpoint on this and await their further comments. In the meantime we hold you responsible for this negligent damage. As soon as we hear further from them we will update you:
> I do not accept that I was negligent in this matter and I am pleased that you have now raised this with your insurer. Let’s see what they say. It is difficult for me to comment further without a copy of your insurance policy, as requested. I would also be grateful if you could provide a copy of the accident details as reported to the insurance company so that I can check all relevant points are covered.[you will need to complete a accident report form for the side damage and the insurers will not look at the claim until you complete this form; you can do this when we meet. Completion of the claim form does not imply cover merely that they will look at the full circumstances surrounding the side damage]
>
>
> 6. We cannot advise you of your legal position and in this regard we would respectfully ***** ***** show our contract to your legal advisor if you feel anything we are saying is not correct and get them to write to us setting out how their view differs from ours so the matter can be concluded swiftly:
> This seems a reasonable approach which I agree is a sensible way forward. However, I am sure that you appreciate that without a copy of the insurance policy, I have been prevented so far from obtaining fully informed legal advice. I hope that this can be rectified quickly.[copy policy attached]
>
> I would very much like to meet you and try and resolve these matters in a fair way between us, once we are both in a fully informed position to do so and I will call to arrange that as soon as possible.
>
> Kind regards
>
> Jeff Cowell
Customer: replied 22 days ago.
From: Tom Webb <*****@******.***<mailto***@******.***>>
> Date: Tuesday, 15 August 2017 at 18:13
> To: ***** ***** <*****@******.***<mailto***@******.***>>
> Cc: Bracknell Hiredesk <*****@******.***<mailto***@******.***>>
> Subject: RE: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Cowell
>
> Thank you for your email. Sorry for the delay in my response but I have been away a few days
>
> I understand William gave you a copy of our Insurance Certificate when you called in to see him, sorry I was not in the office that day.
>
> I feel it best to start by setting out our position which is this:
>
>
> 1. You have damaged the vehicle in two separate accidents.
>
> 2. We have offered you the chance to have your own repair estimate carried out in respect of the damage caused but to date you have declined this invitation. Please let us know by the close of business on Thursday the 17th August whether or not you wish to have someone else inspect and estimate the damage. If we hear nothing from you we will have no alternative but to send the vehicle to the body repairer who has provided the estimate to have the repairs carried out as we have a duty to you and ourselves to mitigate loss all round.
>
> 3. The vehicle remains on hire to you in accordance with our terms and conditions until such time as the vehicle is returned to us repaired and in a rentable condition. We have to date taken a further weeks hire charge.
>
> 4. Overhead damage is specifically excluded from our insurance when any vehicle is hired from us and we would refer you once again to the clauses in our contract together with addendum sheet that covers this aspect; this overrides any insurance policy.
>
> 5. As regards ***** ***** damage to the vehicle, whilst we consider this to be negligent damage given the circumstances as to how it occurred, we have asked our Insurance brokers for their viewpoint on this and await their further comments. In the meantime we hold you responsible for this negligent damage. As soon as we hear further from them we will update you
>
> 6. We cannot advise you of your legal position and in this regard we would respectfully ***** ***** show our contract to your legal advisor if you feel anything we are saying is not correct and get them to write to us setting out how their view differs from ours so the matter can be concluded swiftly.
>
> I therefore await hearing from you in respect of (2) above and the incident in general if you have any further comments
>
> I am of course happy to meet you personally if you feel that will assist in any way but I would ask you to telephone me on 01344 851434 before calling in to ensure that I am on the premises and your journey is not wasted
>
> Kind regards
>
> Tom Webb
Customer: replied 22 days ago.
From: Jeff Cowell [mailto***@******.***]
> Sent: 07 August 2017 10:28
> To: ***** ***** <*****@******.***<mailto***@******.***>>
> Subject: EXTERNAL: Re: Hire of and damage to MK65MZX
>
> Dear Mr Webb,
>
> Thank you for taking the time to deal with this matter. I appreciate your involvement as the owner of the business.
>
> As I had received no reply to my request for a copy of your insurance policy to John Atkinson on 2 August, I called at your office on 4 August to collect a copy but met with some reluctance to provide this. Eventually, William came to meet me and we had a good discussion concerning the details of the two separate damage claims, which he has undertaken to relay to you. William also promised to email me a copy of your insurance policy which I am entitled to under your terms and conditions but I still have not received this.
>
> I discussed with William that I would be happy to meet personally to try and resolve this matter amicably, if you think that would be helpful and I look forward to hearing from you once you have talked with him.
>
> Best regards
>
> Jeff Cowell
> Director
>
> [id***@******.***]
>
> [id***@******.***] +44 7548 795367
> [id***@******.***] ***@******.***<mailto***@******.***>
> [id***@******.***] www.livingearthtables.com<http://www.livingearthtables.com/>
>
> The information in this email is confidential and solely for the use of the intended recipient(s). If you receive this email in error, please notify the sender and delete the email from your system immediately. In such circumstances, you must not make any use of the email or its contents.
>
> Computer viruses may be transmitted by email. Living Earth Tables Limited accepts no liability for any damage caused by any virus transmitted by this email. E-mail transmission cannot be guaranteed to be secure or error free. It is possible that information may be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. The sender does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission.
>
> Living Earth Tables Limited.
> Registered Office: 20-22 Wenlock Rd, London, N1 7GU. Registered in England.
> Registered number: 10694215
>
>
>
> From: Tom Webb <*****@******.***<mailto***@******.***>>
> Date: Thursday, 3 August 2017 at 17:04
> To: "*****@******.***<mailto***@******.***>" <*****@******.***<mailto***@******.***>>
> Cc: Bracknell Hiredesk <*****@******.***<mailto***@******.***>>
> Subject: Hire of and damage to MK65MZX
>
> Dear Mr Cowell
>
> Your emails have been passed to me to respond to.
>
> Firstly, we will take all measures we can to mitigate your and our loss. At the moment we would invite you to contact and instruct a body repairer of your choice to price the repairs to the vehicle so that you can satisfy yourself that the estimate we have obtained is both fair and reasonable; we would request you arrange this within the next three days. In the alternative confirm to us that you are happy with the estimates provided so that we can instruct the repairer to get on and get the vehicle fixed without any further delay.
>
> Secondly, we consider the damage to the side of the vehicle negligent damage looking at the facts surrounding how the damage occurred.
>
> Thirdly, Overhead damage is specifically excluded under the terms of our contract and in addition thereto we not only get you to sign our contract to confirm this we also ask you to sign a separate piece of paper which specifically mentions this also.
>
> Lastly, we obviously cannot hire this vehicle out in the state it is in and in accordance with clause 3.3.6 of our contract we have agreed liquidated damages at 95% of the daily rate you were paying until the vehicle is returned to us repaired and ready for rental again
>
> I trust the above fairly sets out the position in respect of this matter and I therefore await hearing from you as soon as possible as to whether you wish to obtain your own estimate or whether you wish to accept ours
>
> Kind regards
>
> Tom Webb
> Director