Claim won against Parking Control Management (Gladstones)

Dawn1e

Claim form received (7 Feb) acknowledged via MCOL. 
Now need to complete the defence template.

I visited a McDonald's drivethru and unknowingly parked in a 'private' Texaco car park to eat - situated directly after the drivethru exit, next to McDonald's litter bins. All very misleading and I could see others eating their meals in the same car park. I suspect the Texaco garage make a fortune invoicing people £100 for parking there. A man came out and started taking photos of us in the car, which they used as evidence (I can't say I was not the driver as it is clear from the photos).
I returned to gather evidence to appeal. The signage is there, but not visible from a car (signs are 10ft high, too much text/hard to read). They have maintained that the signs meet the guidelines.
So... should my defence focus on the misleading location, as it appeared that the parking area belonged to McDonald's. Or should I focus on the poor positioning of the signs, that they were out of sight and hard to read?
Do I keep my points brief here, or really go to town with it?

go-on-then

Use both points.  Your '  to the point '  defence is really based on the legal stuff like the misleading signage etc etc.  Take a look at other examples on other threads. 

Witness statement elaborates on these points and gives more facts but that is much later on.

Parking companies do not have a national database of everyone's photo so they cannot assume it was you. You know what you look like but they and we dont.  Have you disclosed the driver ?

KeithP

Dawn1e said:

Claim form received (7 Feb) acknowledged via MCOL. 

You tell us you received the Claim Form on 7th February.
Can you now please tell us the Issue Date on your County Court Claim Form?

Also, upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Dawn1e

go-on-then said:

Parking companies do not have a national database of everyone's photo so they cannot assume it was you. You know what you look like but they and we dont.  Have you disclosed the driver ?

Unfortunately yes, I admitted it was me driving.

Dawn1e

KeithP said:

Dawn1e said:

Claim form received (7 Feb) acknowledged via MCOL. 

You tell us you received the Claim Form on 7th February.
Can you now please tell us the Issue Date on your County Court Claim Form?

Also, upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date was 7 Feb and I filed acknowledgment of service today 18 Feb

KeithP

Dawn1e said:

KeithP said:

Dawn1e said:

Claim form received (7 Feb) acknowledged via MCOL. 

You tell us you received the Claim Form on 7th February.
Can you now please tell us the Issue Date on your County Court Claim Form?

Also, upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date was 7 Feb and I filed acknowledgment of service today 18 Feb

With a Claim Issue Date of 7th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th March 2022 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Dawn1e

I have written my Defence (below) and would appreciate some advice before I submit it (deadline 14th March) - thanks in advance!

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question. It is admitted that the Defendant was the driver of the vehicle in question at the time but liability is denied. 

3.  On 12th August 2021 the defendant visited McDonald’s, XXXXX. The restaurant is adjacent to a Texaco Service Station and both premises are accessed via a shared thoroughfare. The defendant used the Drive Thru and parked in one of the adjacent bays for approximately ten minutes to consume their food. A week later the defendant received a parking charge by post demanding payment of £100 for parking in a restricted area owned by Texaco: 'The terms and conditions for the use of the land are clearly stipulated signage posted throughout the area'.

The defendant states that they:

1. Did not knowingly park in a restricted area
2. Did not notice any signage/terms and conditions for parking
3. Did not enter into a contract with Texaco
4. Were lured into incurring parking charges due to misleading tactics 

 The defendant did not knowingly park in a restricted area as they believed the parking area was provided for Drive Thru customers:

• The parking bays are located directly in front as you exit the Drive Thru (less than 5 metres away)
• Two McDonald’s litter bins are situated next to the bays
• Other McDonald’s customers were parked in this area
• There is no obvious site boundary between McDonald’s and Texaco 
• There is no visible signage to alert drivers that parking in that area is for Texaco customers only

The defendant did not notice signage/terms and conditions for parking

The defendant could not understand how they had missed the ‘clearly stipulated signage posted throughout the area’ so returned to the location to investigate. They noted that there are small signs upon entry to the Texaco Station (impossible to read while driving) and on the side of the Texaco building. However the Claimant displayed no conspicuous signage visible on the defendant's path from the McDonald’s Drive Thru to the photographed parking position. It is not made clear that you have entered onto Texaco property. Although there are signs at each end of the parking area, they do not face towards the driver on approach and are not visible from a drivers viewpoint, and are located 10ft above the ground on a post. The claimant provided a photo of the vehicle taken at the time of alleged contravene, where the signage was clearly not visible from the vehicle and at such a height you would need a ladder to see it clearly. The signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

The defendant did not enter into a contract with Texaco

The location of the sign, the position, and the small font made it impossible for the defendant to be aware of the terms and conditions before entering the parking area. Not knowing where you are or aren't allowed to park is an unfair contract term and therefore breaches the CRA 2015. Even when standing directly underneath the sign, it is difficult to read due to the small font, and would be considered incapable of binding any person under common contract law. Consequently, it is the defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

The defendant was lured into incurring parking charges due to misleading tactics

The BPA Code of Practice states:

9.5 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non- compliance and may go to the Professional Conduct Panel.

The defendant believes that the claimant is using predatory or misleading tactics to extort money from unsuspecting McDonald’s customers for several reasons:

• The proximity of the McDonald’s litter bins to the parking bays signifies that the area is intended for use by McDonald’s customers - and could therefore be seen as a concealed pitfall or trap 
• The claimant has chosen to locate signage where it cannot clearly be seen from inside a vehicle - there is a fence running along the parking bays where multiple signs could be displayed clearly at eye level - why not display signs there?
• Photographic evidence was not gathered retrospectively via CCTV. An unknown male approached the defendant’s vehicle while parked, and photographed it from several angles to prove the defendant and passenger were eating McDonald’s. This unscrupulous, unconscionable approach suggests a money-making exercise. They could have simply pointed out the signs and asked the defendant to move. (Note - the defendant was not aware this was happening at the time, and had no cause for concern, believing they were legitimately parked on McDonald’s property).

Coupon-mad

Use this brand new version instead after point #3:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

And save all this for the later WS:

 The defendant did not knowingly park in a restricted area as they believed the parking area was provided for Drive Thru customers:

• The parking bays are located directly in front as you exit the Drive Thru (less than 5 metres away)
• Two McDonald’s litter bins are situated next to the bays
• Other McDonald’s customers were parked in this area
• There is no obvious site boundary between McDonald’s and Texaco 
• There is no visible signage to alert drivers that parking in that area is for Texaco customers only

The defendant did not notice signage/terms and conditions for parking

The defendant could not understand how they had missed the ‘clearly stipulated signage posted throughout the area’ so returned to the location to investigate. They noted that there are small signs upon entry to the Texaco Station (impossible to read while driving) and on the side of the Texaco building. However the Claimant displayed no conspicuous signage visible on the defendant's path from the McDonald’s Drive Thru to the photographed parking position. It is not made clear that you have entered onto Texaco property. Although there are signs at each end of the parking area, they do not face towards the driver on approach and are not visible from a drivers viewpoint, and are located 10ft above the ground on a post. The claimant provided a photo of the vehicle taken at the time of alleged contravene, where the signage was clearly not visible from the vehicle and at such a height you would need a ladder to see it clearly. The signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

The defendant did not enter into a contract with Texaco

The location of the sign, the position, and the small font made it impossible for the defendant to be aware of the terms and conditions before entering the parking area. Not knowing where you are or aren't allowed to park is an unfair contract term and therefore breaches the CRA 2015. Even when standing directly underneath the sign, it is difficult to read due to the small font, and would be considered incapable of binding any person under common contract law. Consequently, it is the defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

The defendant was lured into incurring parking charges due to misleading tactics

The BPA Code of Practice states:

9.5 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non- compliance and may go to the Professional Conduct Panel.

The defendant believes that the claimant is using predatory or misleading tactics to extort money from unsuspecting McDonald’s customers for several reasons:

• The proximity of the McDonald’s litter bins to the parking bays signifies that the area is intended for use by McDonald’s customers - and could therefore be seen as a concealed pitfall or trap 
• The claimant has chosen to locate signage where it cannot clearly be seen from inside a vehicle - there is a fence running along the parking bays where multiple signs could be displayed clearly at eye level - why not display signs there?
• Photographic evidence was not gathered retrospectively via CCTV. An unknown male approached the defendant’s vehicle while parked, and photographed it from several angles to prove the defendant and passenger were eating McDonald’s. This unscrupulous, unconscionable approach suggests a money-making exercise. They could have simply pointed out the signs and asked the defendant to move. (Note - the defendant was not aware this was happening at the time, and had no cause for concern, believing they were legitimately parked on McDonald’s property).

Dawn1e

Coupon-mad said:

Use this brand new version instead after point #3:

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299

Thank you Coupon-mad 

1505grandad

Who is the claimant? -  in your draft you quote both BPA and IPC CoP

Dawn1e

Thank you for pointing this out @1505grandad, the claimant is PCM so IPC Cop applies. Amended as below:

The defendant was lured into incurring parking charges due to misleading tactics

The IPC Code of Practice states:

27.1 Operators must ensure that all their operatives, servants or agents always

maintain a professional standard of behaviour when carrying out their duties and

comply with the rule of law at all times.

27.3 Operators must not use predatory or misleading tactics to lure Drivers into

incurring Parking Charges.

The defendant believes that the claimant is using predatory or misleading tactics to extort money from unsuspecting McDonald’s customers for several reasons:

• The proximity of the McDonald’s litter bins to the parking bays signifies that the area is intended for use by McDonald’s customers - and could therefore be seen as a concealed pitfall or trap 
• The claimant has chosen to locate signage where it cannot clearly be seen from inside a vehicle - there is a fence running along the parking bays where multiple signs could be displayed clearly at eye level - why not display signs there?
  
• Photographic evidence was obtained in a furtive, unconscionable manner.  A male wearing plain clothes approached the defendant’s vehicle while parked, photographing it from several angles to prove the defendant and passenger were eating McDonald’s. This approach propounds a money-making exercise. The person could have simply pointed out the signs and asked the defendant to move. (Note - the defendant noticed the male but was not aware he was taking images and had no cause for concern, believing they were legitimately parked on McDonald’s property).