I missed n180 deadline, but so did claimant (UKPCL)

turtlemoose

@UncleThomasCobley this was my defence, submitted via email as clarified:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question. 3. The Defendant attended Mcdonalds and immediately joined an unusually long queue for the drive thru service. This was the only service possible as it was during a Covid-19 lockdown and the restaurant was not open to walk in to. After queueing for some time, the Defendant was served their items and parked in a bay to consume them and to chat to a friend in a vehicle parked in the next parking space along. The Defendant's friend advised that they thought there might be a parking time limit, as they knew there was one at another Mcdonald's but they weren't sure about this one, and left. The Defendant immediately rejoined the drive thru queue and waited for a second time, and spoke to the staff and explained that they were unsure if they were over 90 minutes or not, and could it be checked and if that was the case for the few minutes over to be allowed in this instance. The staff stated they had no way to check and that the parking was nothing to do with them. Had the Defendant not had to queue for a long time in the drive thru queue on two occasions, they would have been within the 90 minute limit. It is the Defendant's understanding that time waiting through the drive thru should not be considered as part of the parking time, and that the time spent parked in a bay was in fact less than 90 minutes and therefore within the allowed time.



@Coupon-mad  This was at Wolverhampton, and the judge was McMurtrie - NOT the one from the dispute resolution unfortunately. He is normally based at Manchester, and is very experienced at dealing with these types of parking claims - he went to great lengths to tell us all about his extensive experience and how much he knows about all of it. The hearing was over 2.5 hours long (scheduled for only 1 hour). 

On to the specifics then. The judge really liked to talk. A LOT. We heard about his dogs (greyhounds), his neighbours grass, taking his daughters to KFC, the football club he supports and that there is a McDonalds next to it, that he used to be barrister and his wife is currently a barrister..... you get the gist. On and on and on. 

I arrived about 9:20am for the hearing scheduled at 10.  The usher came to us around 9:40 and asked if we would both like to go in early, we both said yes. The judge was VERY complimentary about us not just being on time but being early. I don't think that's relevant AT ALL (unless you're late!) but it sent him off down an anecdote so he seemed really in to it. Perhaps worth noting if anyone else has him in future - be early, he loves it.

He said had the PoC been his in Manchester he would have struck it out immediately because it is poorly worded, and he would have given them one change to get it right - and that in his experience parking firms do get that right second time around. As we had gone beyond that point, he said he would not strike it out now, but that the advocate should note as feedback that he would expect a higher standard.

He went on and on, and on and on, and on and on, about how much he knows about parking cases. He talked about the case law examples that are often used in internet templates and what he thinks about those. He said Beavis, which I had quoted in my WS, was irrelevant in this case and he was disregarding that part of my WS and there was no need for the claimant to address it. 

He then went through the claimant's WS and tore strips off them, getting annoyed at poor wording, ambiguous terms, contradictions, lack of date and time stamp on some of their photos, illegibility of some of their photos, the fact the numbered version he had was different to the version the advocate had so whenever she said "page 11 " or whtaever he would have to count the pages to get to the right spot.  

He said it was poor form on the Claimants part that they used the terms "parked" and "parking" in their notification letter, their PoC, and multiple times in their witness statement, however that as the car park has a sign saying, clearly MAXIMUM STAY 90 MINUTES then we all know that stay is what they meant and he'll allow that that's what they meant because that was the contract I entered by going on to, and staying on , that land. 

He criticised their signage and their representation of the signage in their WS, he spoke at length about font choices/sizes / background highlight etc and made it clear that in his opinion the sign should be less wordy and bigger text and that they are misleading to consumers by making their text small etc.

In this particular instance the signs in the WS show clearly it says it is a £100 parking charge, reduced to £50 if paid within 14 days. He said he is applying the reasonable observer test, and that a reasonable observer would not read the whole sign, so he doesn't care what they do or don't say in their tiny text, he's not upholding it because it's not clear in the photos so it's probably not clear in the car park. He said the reasonable observer would read it and think the charge is £50 if you cough up early, and then a further £50 if you delay the payment for whatever reason , ie that the difference between the £100 and the early-payment-discount *IS* the additional charges, and he made it clear from the offset that IF he found in the claimant's favour then it would take a significantly well thought out argument from the advocate to convince him otherwise. 

He said it was unreasonable that the car park has two different types of signs, and that it is unreasonable to expect someone to go around a car park and read EVERY sign, however on the balance of probabilities he accepts it is likely that both types of sign contain the same information, and that that is the same as the signs listed in their WS.

He decided to address me and explain section 69 of the consumer act, and section 71, and made sure I understood that he was adhering to his obligation to consider those within this process.

He said the TERMS of the contract of the site are clearly displayed and visible - "90 mins maximum stay". But that the CONSEQUENCES of not adhering to the terms are NOT clearly displayed and visible.

There was a lot more said than that but he really waffled on and on, interspersed with his personal anecdotes. Ironically at one point I had to sneakily check the time to make sure the parking I'd paid for (via an app, not with UKPCC!) had not expired, because he had gone on for so long. 

In terms of talking about my defence, he immediately dismissed the whole drive thru thing, he said he didn't care to get in to pedantics around parked vs stayed, and that he did not entertain it as a valid defence at all. This was pretty crushing.

Getting on to my chance to speak - as he has already dismissed pretty much my whole WS, I felt very much on the back foot and really dismayed at this point. So I did the best I could given the circumstances but it obviously wasn't enough. 

I said: the signs are difficult to read in the daylight as shown in the claimant's WS - I entered at 7:35pm and it was beginning to get dark (my headlights are on in the photo) and I left at 9:20pm when it was completely dark. In my WS I had already said that I'd gone through drive thru, parked, spoke to my friend in the car beside me, and then after a while he mentioned he thought there might be a time limit, and at that point I checked the sign, couldn't see it in the dark, and re-entered the drive thru. The judge did not accept this at all. He googled sunset time on the date in question (7:55pm) , and said that it's dusk at best and that's plenty of light to see the signs, and that when you enter private property it is expected that you will use up to the first 10 minutes to read signage and decide if you accept the terms or not (hence the BPA 10 min grace period) and that it is on me that I did not check the sign at the beginning, when it was light enough to do so. 

I then said: it's been discussed today regarding the different wording of parking and staying, and that the claimant used the terms parking on the notification letter and on the PoC and that I have written my WS accordingly, and that had they not done that then I would not have sought to rely on it in my WS, and that I feel I have been disadvantaged by their poor administration. He agreed this is unfortunate for me but not enough of a defence.

My final attempt: I said that the BPA grace period of 10 minutes is not set in stone and that discretion can be used to extend this (judge agreed). I said given the exceptional circumstances (lockdown, restaurant shut, very very very long drive thru queues, my second go around the drive thru to ask about the parking), that it is unfair that they have not extended the grace period to 15 minutes instead of 10, as I was only 5 minutes over the 90 max stay plus 10 min grace, and that they should have done. He agreed that that is something they *could* do but obviously haven't done.

In the end he found in their favour, obviously. The £212 is made up as follows:

£50 original parking charge
£50 costs - this is capped at this rate because of the signage issues he raised earlier, and all attempts by the advocate to add various different costs on were shot down VERY firmly, and he even told her "I know you are acting on instruction but you should know better than to ask for those as it will inevitably be rejected"
£112 is the standard flat rate court fee, sols fee etc. 

He said he had a lot of sympathy for my situation, and that from a moral perspective he personally viewed this situation as unfair, however he is not there to make judgments based on fairness, but on the law, and that in this instance I entered a contract and I broke that contract. 


I think that's everything - any questions I'll do my best to answer, and if I think of anything else I'll add it on.

 

Le_Kirk

Good court report, shame you weren't reporting a success. Tough luck.

Coupon-mad

I think it's broken down in fact, as

£100 parking charge
£50 capped legal fee
£35 claim filing fee
£27 hearing fee

What a waste of your time and money.

Sorry to hear it.

We've heard of McMurtrie striking cases out at Manchester for poorly pleaded POC and he does clearly know about parking cases.  I am surprised after 2.5 hours to hear that he came down in their favour even though their POC pleaded the case as 'parking' time not 'total stay' and he said the onerous repercussions were NOT clear on the signs.  Odd then, to say that's fair under the CRA 2015. 

I am glad you got it down to £212.  The only 'profit' out of that is the £100 and the £50 which is no profit at all because that rep will have been paid twice that!

Get your revenge. Please take time to do this Committee call for evidence:

https://forums.moneysavingexpert.com/discussion/comment/80417494/#Comment_80417494

Please help us stop this and keep parking cases out of court in future.  The Govt is listening.