Did ASDA have a contract with Smart Parking Limited in April 2013?

Many ASDA stores contract out their parking arrangements. They used to contract out to Town and City Parking Limited, but that company was taken over, and on 3/12/2012 Town and City Parking Limited changed their name to Smart Parking Ltd. 

A new company also called Town and City Parking Limited was then created, but this had a different company registration number to the old one.

The old signs were left in the car park. However, they were invalid because the Town and City Parking Limited mentioned on the signs was not the same as the Town and City Parking Limited with whom Asda had the parking contract.

They tried to rectify the situation by felt-tipping over the 'Limited' on the signs, and creating a new trading name of Smart Parking Limited: 'Town and City Parking'.

However, the signs do not say that this is a trading name of 'Smart Parking Limited', which appears to be an offence against Sections 82 and 84 of the Companies Act 2006 and also against the Company (Trading Disclosures) Regulations 2008 Section 4(2)

Confused yet?

This pepipoo post provides some background.
This link gives the name changes.

The big question remains, at what point did the parking charges Smart Parking issued align with the signage and the contract with ASDA?

The Prankster got a ticket in April when he double dipped an Asda store in Bristol. Since then, he has been trying to find the answer to that very question.

Smart Parking thought that Companies House and the DVLA had 'clarified' the situation, but provided no proof of this.

The Prankster disagreed. His view was that the signs were in the name Town and City Parking Limited. A bit of black scribble on the signs which still left the 'Ltd' clearly visible, could not be construed as a proper way to amend the signs.

He was also of the view that neither Companies House nor the DVLA had the legislative power to override the laws of the county.

The Prankster therefore asked POPLA for their opinion. As this was only back in April, there are probably a few months to go yet before POPLA gets round to judging the appeal. Meanwhile, The Prankster asked ASDA for their opinion on 2nd May 2013

I received a parking ticket at your Bedminster store from a company calling themselves Smart Parking Ltd. On checking the parking signs at your store there is no mention of this company, only Town and City Ltd.

As you are no doubt aware it is an offence under the Company ( Trading Disclosures ) Regulations 2008 if a company does not disclose its registered name at any location at which it carries on business.

Please can you inform me what measures you intend putting in place to ensure your agent meets its legal requirements.

ASDA replied on 5th May 2013, answering some questions The Prankster had not asked. As we will see, this will be a continuing theme.

The car park at our Bedminster store is operated and maintained by Smart Parking. Smart Parking also trade as Town and City Parking, as stated on the charge you've received. 

I've spoken to Don Robins, the Admin Manager, at Bedminster. Don will be raising this with Smart Parking and look at getting the signs updated, to avoid any confusion in the future. You can contest this charge by calling them on 01738 440933.

On 13th May 2013 The Prankster enquired further.

Section 7.1 of the British Parking Association Limited code of practice states:

 7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land inquestion. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges,through the courts if necessary. 

Please forward me a copy of this authorisation, together with any terms and conditions associated, so that I can confirm that Smart Parking are allowed to pursue this charge

Asda replied on 30th May, answering some questions The Prankster had not asked.

The car park signs and the parking charge notice make clear that the terms and conditions of parking in the car park are managed by Smart Parking Ltd (also trading as Town and City Parking) on behalf of Asda. 

By parking in our car parks, you entered into an agreement with Smart Parking Ltd who act as an agent for Asda to use the facilities. You note that on-site signs refer to 'Town is requested by and charges are issued by Smart Parking Limited. Smart Parking Limited is a registered Data Controller (registration number Z497213X).

The Prankster tried again on 31st May

I note that your email does not address any of the points I raised in my letter, so I have helpfully included a copy for you to read again.

In order that I can defend myself if the parking company chose to take me to court, please can you send me suitably redacted copies of your contact(s) for car parking management for the Bedminster Bristol store which were active between the following dates 1-17 April 2013. I do not require commercial details, just the details of who the actual company name was, that they can manage the car park, issue charges and pursue charges at court, and that you require them to comply with the BPA code of practice. All other details can be redacted.

Alternatively, if you did not have a contract for parking between those dates with Smart Parking Ltd, or if it did not contain the required clauses, you can simply confirm this to me by letter without disclosing the actual contract, and this will be sufficient evidence for my purposes.

I note that you have addressed several points in your email which I had not raised. However, I do note several factual errors.

Your statement "The car park signs and the parking charge notice make clear that the terms and conditions of parking in the car park are managed by Smart Parking Ltd (also trading as Town and City Parking) on behalf of Asda." is incorrect.

 The car park signs state that the car park is managed by 'Town and City Parking Ltd'. I have dated photographic evidence to prove this.

To check that we are both talking about the same place and time, I confirm that I am referring to the Asda Bedminster Bristol store, between 1 April 2013 and 17 April 2013. Please can you therefore recheck your records.

Your statement:
"By parking in our car parks, you entered into an agreement with Smart Parking Ltd who act as an agent for Asda to use the facilities."
is therefore also incorrect, as no mention of Smart Parking Ltd is made on the signs.

Your statement:
"You note that on-site signs refer to 'Town is requested by and charges are issued by Smart Parking Limited. Smart Parking Limited is a registered Data Controller (registration number Z497213X)."is therefore also incorrect. The signs contain no such information.

Please can you therefore re-evaluate your reply in the light of the new information I have provided to you, and also provide me with either the requested proof of contract, or an admission that no such contract exists.

ASDA took a little while to digest this one, finally replying on 26 June

The information you’re asking for in regards to our contract with Smart Parking wouldn't be shared with you. This is because it's a confidential agreement between us and Smart Parking. This is a legal contract we have and to provide such details to you would be in breech of this.

The Prankster replied the same day

Thank you for your response.

I wish to confirm that I do not require sight of the actual contract. I merely wish you to confirm that the contract on the date in question complies with the BPA Ltd code of conduct by:

a) Being in the name Smart Parking Limited

b) Giving Smart Parking Limited the right to issue charge notices and pursue unpaid charges to court

c) Requiring Smart Parking Ltd to follow the BPA Ltd code of conduct

Please can you state whether you are willing to confirm these details or
not.

My appeal is currently at the POPLA stage, so it would help if you could
reply as soon as possible. It would also be of benefit to me if you could categorically state that you are unwilling to confirm these details. This will guarantee me a win at POPLA, and will also guarantee a win to anyone else who wishes to appeal against parking charges at your stores. 

ASDA replied to some different questions on 1st July

I'm sorry for the delay in writing this is because I was getting the below information confirmed for you.

Asda employ Smart Parking LTD, formerly known as Town and City Parking, to manage the car park concerned and that a contract does exist between both parties.

Smart Parking ltd are on the Approved Operator Scheme and are members of the British Parking Association, therefore we adhere to any terms and conditions this would entail to retain the right to our membership.

This gives the company the right to issue a Parking Charge Notice in the event of one of the terms and conditions of parking being breached. 

This is the information I can provide for you, which I hope is of use. Should you need anything else, please let me know. Thanks again for your letter. 

The Prankster replied on the same day

Thank you for your reply.

My questions were asking you to confirm that on the day in question a contract existed:
a) Being in the name Smart Parking Limited

b) Giving Smart Parking Limited the right to issue charge notices and pursue unpaid charges to court

c) Requiring Smart Parking Ltd to follow the BPA Ltd code of conduct

You have not answered any of my questions.

Regarding question (a), you have confirmed that a contract exists between Asda and Smart Parking Ltd, but have not confirmed that on the date in question the contract was in the name of Smart Parking Ltd

Regarding question (b), you have confirmed that Smart Parking Ltd are on the AOS of the BPA Ltd. You have not confirmed that your contract gives them the right to issue charge notices and pursue them to court.

Regarding question (c), you have confirmed that Smart Parking Ltd are on the AOS of the BPA Ltd. You have not confirmed that your contract requires them to follow the BPA Ltd code of conduct.

Rather than an endless merry go round where I ask the same questions and you continue to find new, creative ways to not answer them I would prefer to settle this once and for all. Please can you therefore limit yourself to the following answers to my questions:
1) I can confirm this is the case
2) I can confirm this is not the case
3) I am not prepared to answer this question.

I will accept any of these answers as fully answering each question to the limit of your willingness to provide answers, and will then be able to view this issue as closed

ASDA answered some different questions on 2nd July

I'm sorry you feel I haven't answered your questions. The information I am able to provide is listed in my previous email. 

In December 2012 Town and City Parking re-branded to Smart Parking Ltd. Prior to this rebrand taking place Smart Parking Ltd agreed with the British Parking Association (BPA) and Driver Vehicle Licensing Agency (DVLA) and Companies House that Smart Parking Ltd could continue operating under the Town and City Parking name on their signage, uniforms, stationary and any associated materials.

As such, Smart Parking Ltd is fully compliant with all required professional bodies with regard to their advertised trading name whilst this rebranding exercise continues. 

The Prankster replied the same day

I note that you say 'The information I am able to provide is listed in my previous email.'
You have then provided some information not relevant to the questions I asked.

My question was:
Can you confirm that on the dates in question (1-April-2013 to 17-April-2013) a contract existed:
a) Being in the name Smart Parking Limited

b) Giving Smart Parking Limited the right to issue charge notices and pursue unpaid charges to court

c) Requiring Smart Parking Ltd to follow the BPA Ltd code of conduct

Given that you are not prepared to answer the question, would it be fair for me to assume therefore that the answers to my questions are:

a) I am not prepared to answer this question.
b) I am not prepared to answer this question.
c) I am not prepared to answer this question.

If you can agree that you are not prepared to answer these questions then I will regard this as a satisfactory answer and we can close this case.

I feel that your tactic of answering different questions to the one I asked is not helping us to resolve this issue.

ASDA replied a bit later the same day. This email was a bit of a shock to The Prankster as ASDA finally answered the questions he asked.

Thanks for your further email. 

Simply, we would answer yes to all of your questions. I'm not able to provide any further information other than what I have previously provided for you. 

I trust this concludes your complaint. Should you need any further help, please get in touch. Thanks again for your letter. 

Scarcely able to beleive that it only 2 months and 6 emails to get ASDA to answer his questions, The Prankster pushed for one more clarification on 2nd July

Thank you for your quick reply.
I wish to just clarify my understanding of your response.
My question is:
Can you confirm that on the dates in question (1-April-2013 to17-April-2013) a contract existed:
a) Being in the name Smart Parking Limited

b) Giving Smart Parking Limited the right to issue charge notices and pursue unpaid charges to court

c) Requiring Smart Parking Ltd to follow the BPA Ltd code of conduct
Your answers are

a) Yes

b) Yes

c) Yes

If my understanding is correct then thank you for helping me to finally get to this point. 

ASDA replied, also on the 2nd July

Thanks again for your email.

As per my last email, all three answers to your question would be a yes. I hope this answers your question fully now. 

Well, there you have it. ASDA think they have a contract. So do Smart Parking Limited. But if such a contract exists, why didn't Smart Parking send a copy in with their POPLA evidence pack, and why didn't they send in their permission to disregard the laws of the country they think the DVLA and Companies House sent them? How mysterious. The Prankster eagerly awaits to see what POPLA will make of all this.

The Prankster notes that Smart Parking have lost previous cases at POPLA for not producing their contract with ASDA. See Post #53

Happy Parking

The Parking Prankster