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  • FIRST POST
    • cossied
    • By cossied 7th May 16, 1:04 PM
    • 17Posts
    • 13Thanks
    cossied
    Gemini Parking Solutions Chase Farm
    • #1
    • 7th May 16, 1:04 PM
    Gemini Parking Solutions Chase Farm 7th May 16 at 1:04 PM
    Hi

    I am new to this and have tried to find the new thread and am unsure if I have the correct details. I recently went to my local doctors and I was unwell and was immediately sent to Chase Farm Hospital to have a chest X Ray.
    I immediately went to Chase Farm Hospital and had the X Ray done, however upon leaving I forgot to pay at the machine.

    I have attached a copy of the Parking Charge and was wondering if you believe I can appeal this as I do not want to ignore this ticket and receive debt collector letters.

    If I do have a chance I have typed out 2 appeals I can send and was wondering which one is better as I am not sure which one to use as there are 2 letters on the newbie page.
    Advice on my 2 replies below would be great from anyone experienced.
    If it is believe I will be unable to get away with this then please let me know and I will arrange to pay the £60.

    Reply 1
    Dear Gemini Parking Solutions
    Re PCN number: --------
    I am not ignoring your charge for a purported parking infraction. As this is purely a charge, issued under an alleged contract and the driver has not been identified, I require the following information so that I can make an informed decision:
    1. Who is the party that contracted with your company? I require their contact details.
    2. What is the full legal identity of the landowner?
    3. As you are not the landowner please provide a contemporaneous and unredacted copy of your contract with the landholder that demonstrate that you have their authority.
    4. Is your charge based on damages for breach of contract? Answer yes or no.
    5. If the charge is based on damages for breach of contract please provide your justification of this sum.
    6. Is your charge based on a contractually agreed sum for the provision of parking? Answer yes or no.
    7. If the charge is based on a contractually agreed sum for the provision of parking please provide a valid VAT invoice for this 'service'.
    8. Please provide a copy of the signs that you can evidence were on site and which you contend formed a contract with the driver on that occasion, as well as all photographs taken of this vehicle.
    If you believe you have a cause of action, send a Letter before Claim within the next 21 days and I will take advice and will respond.
    However, in my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent ADR service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.
    Do not send debt collector letters and do not add any costs or surcharges. I will not respond to such contact and to involve another firm would be a failure to mitigate your costs which are not my liability because the POFA 2012 can only potentially hold a registered keeper liable if certain provisions have been met and even then, the 'amount of the parking charge' is the only amount pursuable.

    Yours faithfully,
    Mr D

    Reply 2

    Date

    Dear Sirs

    Re: PCN No. ------

    I challenge this 'PCN' as keeper of the car and I will complain to the landowner about the matter if it is not cancelled.
    I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.
    Further, I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses, to cancel such a charge. So please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.
    There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.
    I have kept proof of submission of this appeal and look forward to your reply.

    Yours faithfully,

    Mr D
    I would be grateful for any advice in dealing with this matter, as I am really unsure what letter to send back and if I can even appeal due to not paying at the machine.

    Thanks for your help

    Mr C
    Last edited by cossied; 07-05-2016 at 1:34 PM. Reason: Changes
Page 2
    • cossied
    • By cossied 1st Jun 16, 8:21 PM
    • 17 Posts
    • 13 Thanks
    cossied
    I may have to remove point 4 about signage as they have attached images of the sign posts?
    • Coupon-mad
    • By Coupon-mad 1st Jun 16, 8:24 PM
    • 51,502 Posts
    • 65,109 Thanks
    Coupon-mad
    Too old. Nothing about 'loss' is recent and it will lose.

    You CERTAINLY need a point about signs! Of course they have signs up but the point is, the charge is in small print/unreadable.

    Try searching 'POPLA Hospital' and finding one from March, April or May about a Hospital site, even if it's not Gemini. Then adapt it to read to make sense for your case (not just changing the parking firm's name but reading each bit and checking it makes sense).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • cossied
    • By cossied 1st Jun 16, 9:53 PM
    • 17 Posts
    • 13 Thanks
    cossied
    Hi C-M

    I found this appeal to POPLA which won in April for Chase Farm hospital which is the same place as the invoice I received in the post.

    I have marked in red what I would obviously need to change however do you think this will be of use to me if I was to go get some images of the signage as well.

    Dear POPLA,

    I am the registered keeper and I wish to appeal a recent parking charge from Gemini issued at Chase Farm Hospital. I submit the points below to show that I am not liable for the parking charge:

    1) The operator/landowner has not complied with provisions of the Equality Act 2010
    2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
    3) No standing or authority to pursue charges nor form contracts with drivers.
    4) Unclear and non-compliant signage, forming no contract with drivers.
    5) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
    6) No genuine pre-estimate of loss



    1) The operator/landowner has not complied with provisions of the Equality Act 2010

    The operator/landowner has not complied with provisions of the Equality Act 2010 In fact under the Equality Act Chapter 2, the operator would be considered to be showing indirect discrimination and discrimination due to disability.

    The Operator has put in place measures which prove more difficult for a disabled person to park rather than an able-bodied person with no disability! In fact the operator asks the disabled person to cross the road in order to register their car to park. As seen in the images attached the unclear signage which is located outside the car park, expects the disabled person to leave their parking bay in the multi storey car park and pass through 2 doors to exit the car park and then reach the paying booth which has the sign which then directs the disabled person to cross the road and register their car with a touch screen device in order to state the VRM and the disabled badge number. Then the disabled driver is to cross the road again, re enter the car park and then probably to display their badge (unless they are expected to memorise their VRM and disabled badge numbers) and then to leave the car park and enter the hospital for whatever reason they chose to attend in the first place.

    The able bodied person would just be expected to pay and display and not expected to cross the road to enter the highlands wing and complete this troublesome process. The signage and instructions are difficult for a disabled person to read, to access and the ‘touch screen console’ that requires the disabled person to input their VRM and disabled badge number is located far from the point of parking.

    As such the disabled person will struggle to read the signage, understand and retain the instructions necessary to park and then to locate a machine located further than the pay and display machine and then input the required details from their disabled badge then return to the car to put the badge back on display and then leave the car park. This seems to be an excessive, unnecessary and troublesome process for the disabled person. This is enough to mislead and confuse the able bodied person.

    In the BPA CoP it states that; 16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
    16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine. In fact Gemini has clearly decided to do the opposite of this and has not made any adjustments and has actually put in place further barriers for the disabled person compared to the able bodied person.

    The CoP also stated ’16.5. If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.' The disabled badge was clearly displayed on the vehicle windscreen.

    Gemini has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme.

    Furthermore , Gemini has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

    This is a crucial point in which this appeal will be directed to PALS who are responsible for patients experiences in the hospital, reference will be made to BPA CoP and the DOH guidelines. As the disabled person in the vehicle attended a hospital appointment on that day and this clearly is a barrier to accessing healthcare.

    2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

    As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

    I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

    The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

    a. The Notice arrived in the first week of January which is too late for keeper liability because the alleged parking event was three weeks earlier on 13th December. It is apparent that the 'issued date' is not the date it was posted which is also a fatal flaw of any NTK (see b).

    b. The ‘date on which the notice is sent’ is not explicit and as a point of fact, is certainly not the 'date issued' stated on the Notice. This 'date issued' is quite clearly just the date the Gemini office clerk put the details into the system to create the Notice because it cannot have been posted until their offices opened again after New Year's Day (due to it arriving in early January). However, Schedule 4 prescribes that a NTK 'must' include the actual 'date sent' or 'date given'. This NTK has neither.

    c. The 'period of parking' is not shown, just two photographs with nothing to identify where the car was within the Hospital site at that time, in moving traffic. No visible signs or landmarks are in the background to show where the pictures were taken and there is more than one parking area within the Chase Farm Hospital site - which is fairly large - so this cannot be evidence sufficient to establish any period of parking.

    d. The NTK fails to state the sum of the unpaid parking charge that the driver was alleged not to have paid on the day (which can only be the tariff and not the £100 which is not payable by any mechanism and cannot be deemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the postal Notice. It does not mention those unpaid charges (the tariff).

    e. This NTK does not identify the creditor, which may be Gemini, may be Chase Farm, may be the Royal Free Hospital Trust, or could certainly be another party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. And (as was found by POPLA on many occasions in 2015) nor can the 'creditor' be assumed just because the NTK asks for payment to be made to Gemini. The NTK should have a statement to the effect that 'the creditor is'...and it does not.

    A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant and a late serving of a NTK beyond day 15 from the parking event is incapable of establishing keeper liability in law.

    3) No standing or authority to pursue charges nor form contracts with drivers

    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemini must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Gemini

    In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


    4) Unclear and non-compliant signage, forming no contract with drivers.

    The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

    The BPA Code of Practice states under appendix B, entrance signage:

    “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

    For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

    When with reference to the BCP Code of Practice, it actually states:

    "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the sign adjacent to the disabled bay is red with very small white text. The signs were also unlit which makes them very difficult to read, especially during winter. These were easily missed as they are on one end of the car park only adjacent to the disabled bays, with low height which could easily be concealed by cars, and not by any lighting.

    There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.

    Furthermore, as the driver enters the car park a large sign states ‘PAY ON EXIT’ it states nothing else clearly as the driver enters the car park.

    The 'sign’ beside the disabled parking space does not communicate fully the contractual terms & conditions. It does not state clearly the terms and conditions of parking and the complicated steps that Gemini have put in place and make it necessary for a disabled driver.
    The red sign adjacent to the disabled bays asks the driver to use the intercom, this is hardly visible as there is a large misleading blue disabled logo and very small sized white words. The other white sign outside the car park with yellow text states the disabled person must cross the road and ‘authorise their stay by entering their VRM and disabled blue badge number on the touch screen console located within the entrance of the Highlands Wing’. Please see images attached.

    The red sign with small white text is very difficult to read from a distance. The white sign outside gives different steps and the ambiguity in a contractual term must be read in such a way that is favourable to the driver, the principle of contra proferentem.

    The requirement to pay £100 is not clear on any of the signs that are directed to the disabled driver and are not prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


    Any photos supplied by Gemini to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require Gemini to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

    Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

    5) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

    I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

    And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of the day in the surrounding residential area (residential side roads with no restrictions at all surround Chase Farm Hospital). One could have also parked in other disabled bays in the hospital grounds, where such daunting, exhausting and discriminatory steps do not exist for the disabled driver. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm especially since they discriminate against the disabled person and do not accommodate for their specific needs by asking them to cross the road to simply park ’to register with the touch screen console located at the entrance of the Highlands wing…the highlands wing is located opposite this car park'. Their charge relies upon unseen terms to the driver entering let alone the disabled person, not clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

    6) No genuine pre-estimate of loss

    The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19.
    Gemini must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Gemini have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

    Gemini cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Gemini Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown Gemini supply and must be shown in the contract, which leads me to appeal point 5 below.


    In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright. Gemini fail on a number of occasions and as such I would respectfully request that this appeal is upheld.


    Yours faithfully,
    • Coupon-mad
    • By Coupon-mad 1st Jun 16, 10:22 PM
    • 51,502 Posts
    • 65,109 Thanks
    Coupon-mad
    That's getting better but you can't use point #6, as we said, 'no loss' can't be argued.

    I take it the dates of the NTK and PCN are correct in your adapted version?

    Have a look at this one, which has a point about the rationale behind this charge being punitive; a fine/penalty which is contrary to Government Guidance and not having the same legitimate interest as in the Beavis case (i.e. the sort of argument to use instead of GPEOL):

    http://forums.moneysavingexpert.com/showthread.php?p=70461877#post70461877

    Also the point there in that one, about 'no standing/landowner authority' includes section 7.3 of the BPA CoP which I do recommend people always include.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • cossied
    • By cossied 2nd Jun 16, 8:18 PM
    • 17 Posts
    • 13 Thanks
    cossied
    Hi C-M

    Any better? I have also changed dates.

    POPLA Number
    Parking Notice Number
    I am the registered keeper and I wish to appeal a recent parking charge from Gemini issued at Chase Farm Hospital. I submit the points below to show that I am not liable for the parking charge:

    1) The operator/landowner has not complied with provisions of the Equality Act 2010
    2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
    3) No standing or authority to pursue charges nor form contracts with drivers.
    4) Unclear and non-compliant signage, forming no contract with drivers.
    5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

    1) The operator/landowner has not complied with provisions of the Equality Act 2010

    The operator/landowner has not complied with provisions of the Equality Act 2010 In fact under the Equality Act Chapter 2, the operator would be considered to be showing indirect discrimination and discrimination due to disability.

    The Operator has put in place measures which prove more difficult for a disabled person to park rather than an able-bodied person with no disability! In fact the operator asks the disabled person to cross the road in order to register their car to park. As seen in the images attached the unclear signage which is located outside the car park, expects the disabled person to leave their parking bay in the multi storey car park and pass through 2 doors to exit the car park and then reach the paying booth which has the sign which then directs the disabled person to cross the road and register their car with a touch screen device in order to state the VRM and the disabled badge number. Then the disabled driver is to cross the road again, re-enter the car park and then probably to display their badge (unless they are expected to memorise their VRM and disabled badge numbers) and then to leave the car park and enter the hospital for whatever reason they chose to attend in the first place.

    The able bodied person would just be expected to pay and display and not expected to cross the road to enter the highlands wing and complete this troublesome process. The signage and instructions are difficult for a disabled person to read, to access and the ‘touch screen console’ that requires the disabled person to input their VRM and disabled badge number is located far from the point of parking.

    As such the disabled person will struggle to read the signage, understand and retain the instructions necessary to park and then to locate a machine located further than the pay and display machine and then input the required details from their disabled badge then return to the car to put the badge back on display and then leave the car park. This seems to be an excessive, unnecessary and troublesome process for the disabled person. This is enough to mislead and confuse the able bodied person.

    In the BPA CoP it states that; 16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
    16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine. In fact Gemini has clearly decided to do the opposite of this and has not made any adjustments and has actually put in place further barriers for the disabled person compared to the able bodied person.

    The CoP also stated ’16.5. If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.' The disabled badge was clearly displayed on the vehicle windscreen.

    Gemini has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme.

    Furthermore , Gemini has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

    This is a crucial point in which this appeal will be directed to PALS who are responsible for patients experiences in the hospital, reference will be made to BPA CoP and the DOH guidelines. As the disabled person in the vehicle attended a hospital appointment on that day and this clearly is a barrier to accessing healthcare.

    2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

    As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

    I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

    The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

    a. The Notice arrived in the second week of May which is too late for keeper liability because the alleged parking event was three weeks earlier on 21st April. It is apparent that the 'issued date' is not the date it was posted which is also a fatal flaw of any NTK (see b).

    b. The ‘date on which the notice is sent’ is not explicit and as a point of fact, is certainly not the 'date issued' stated on the Notice. This 'date issued' is quite clearly just the date the Gemini office clerk put the details into the system to create the Notice because it cannot have been posted until their offices opened again after May bank holiday (due to it arriving in late May). However, Schedule 4 prescribes that a NTK 'must' include the actual 'date sent' or 'date given'. This NTK has neither.

    c. The 'period of parking' is not shown, just two photographs with nothing to identify where the car was within the Hospital site at that time, in moving traffic. No visible signs or landmarks are in the background to show where the pictures were taken and there is more than one parking area within the Chase Farm Hospital site - which is fairly large - so this cannot be evidence sufficient to establish any period of parking.

    d. The NTK fails to state the sum of the unpaid parking charge that the driver was alleged not to have paid on the day (which can only be the tariff and not the £100 which is not payable by any mechanism and cannot be deemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the postal Notice. It does not mention those unpaid charges (the tariff).

    e. This NTK does not identify the creditor, which may be Gemini, may be Chase Farm, may be the Royal Free Hospital Trust, or could certainly be another party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. And (as was found by POPLA on many occasions in 2015) nor can the 'creditor' be assumed just because the NTK asks for payment to be made to Gemini. The NTK should have a statement to the effect that 'the creditor is'...and it does not.

    A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant and a late serving of a NTK beyond day 15 from the parking event is incapable of establishing keeper liability in law.

    3) No standing or authority to pursue charges nor form contracts with drivers

    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemini must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Gemini

    I suggest that Gemini are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.

    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.
    In addition, Section 7.3 states:

    “The written authorisation must also set out:

    a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d who has the responsibility for putting up and maintaining signs

    e the definition of the services provided by each party to the agreement.''

    I put Gemini to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used.
    In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


    4) Unclear and non-compliant signage, forming no contract with drivers.

    The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

    The BPA Code of Practice states under appendix B, entrance signage:

    “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

    For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

    When with reference to the BCP Code of Practice, it actually states:

    "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the sign adjacent to the disabled bay is red with very small white text. The signs were also unlit which makes them very difficult to read, especially during winter. These were easily missed as they are on one end of the car park only adjacent to the disabled bays, with low height which could easily be concealed by cars, and not by any lighting.

    There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.

    Furthermore, as the driver enters the car park a large sign states ‘PAY ON EXIT’ it states nothing else clearly as the driver enters the car park.

    The 'sign’ beside the disabled parking space does not communicate fully the contractual terms & conditions. It does not state clearly the terms and conditions of parking and the complicated steps that Gemini have put in place and make it necessary for a disabled driver.
    The red sign adjacent to the disabled bays asks the driver to use the intercom, this is hardly visible as there is a large misleading blue disabled logo and very small sized white words. The other white sign outside the car park with yellow text states the disabled person must cross the road and ‘authorise their stay by entering their VRM and disabled blue badge number on the touch screen console located within the entrance of the Highlands Wing’.

    The red sign with small white text is very difficult to read from a distance. The white sign outside gives different steps and the ambiguity in a contractual term must be read in such a way that is favourable to the driver, the principle of contra proferentem.

    The requirement to pay £100 is not clear on any of the signs that are directed to the disabled driver and are not prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


    Any photos supplied by Gemini to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require Gemini to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

    Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

    5) No legitimate interest - this charge is not like that in the Beavis car park/contract.

    This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

    The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

    It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

    The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

    As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.

    There is no commercial justification for an agent of an NHS Trust to use images cherry-picked from various cameras as a car traverses a site, to profit by disproportionately fining a visitor quite correctly relying upon the clear offer of 20 minutes parking (plus BPA grace periods).

    Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

    https://www.gov.uk/government/publications/nhs-car-parking-management-htm-07-03

    https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

    ''Charges should be reasonable for the area.''

    ''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

    ''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

    ''NHS trusts should publish:

    - their parking policy
    - their implementation of the NHS car parking principles
    - financial information relating to their car parking
    - summarised complaint information on car parking and actions taken in response''


    ''Contracted-out car parking
    NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

    NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

    Contracts should not be let on any basis that incentivises additional charges.''

    ''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

    None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

    The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

    In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

    ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

    POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

    If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests..

    Yours faithfully,
    • Coupon-mad
    • By Coupon-mad 2nd Jun 16, 8:39 PM
    • 51,502 Posts
    • 65,109 Thanks
    Coupon-mad
    There is no commercial justification for an agent of an NHS Trust to use images cherry-picked from various cameras as a car traverses a site, to profit by disproportionately fining a visitor quite correctly relying upon the clear offer of 20 minutes parking (plus BPA grace periods).
    I suggest that Gemini are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.
    Sentences like that need removing - you are not saying the car was in a 20 minute free drop-off bay? Please proof read it all again and remove the parts that do not match your situation.

    There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.
    Is that true? Are you sure? There is normally an entrance sign...


    Furthermore, as the driver enters the car park a large sign states ‘PAY ON EXIT’ it states nothing else clearly as the driver enters the car park.
    I would remove that even if true, because it clashes with what you are saying in the part about NHS car parks (where it says they should be 'pay on exit')! So just remove that sentence and see what evidence Gemini send later.

    The rest looks OK but ONLY if you proof read it all again yourself and ask yourself 'does this bit make sense for my case'?

    If you are happy then submit this under 'OTHER' online to POPLA, attaching it as a PDF because it will not fit the boxes, you can't copy it in. In the OTHER box, just say 'please see my appeal attached as a PDF' and mention any other attachments (e.g. if you are showing a Blue badge and any unclear/small print signage pics to support your case). Upload them all one by one but mainly the PDF appeal, of course.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • cossied
    • By cossied 24th Jun 16, 6:02 PM
    • 17 Posts
    • 13 Thanks
    cossied
    Thanks for all your help guys.
    Had a reply from POPLA saying that Gemini no longer wish to take any further.

    Much appreciated and carry on helping out the good folks.
    • Coupon-mad
    • By Coupon-mad 24th Jun 16, 6:12 PM
    • 51,502 Posts
    • 65,109 Thanks
    Coupon-mad
    Nice result!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Ralph-y
    • By Ralph-y 18th Oct 16, 11:36 AM
    • 2,371 Posts
    • 2,894 Thanks
    Ralph-y
    cossied .... I know this is now an oldish thread ...... but if you read this it would help the 'cause' if you where to send a letter of complaint to the hospital re the attitude of the person sending this letter ..... and how much time and anxiety it caused you in defeating this



    "The Trust does intervene on a number of occasions where circumstances allow. Unfortunately, due to a lack of mitigating circumstances I must advise you that, in this instance, it would be appropriate for the Trust to intervene. In the first instance it would be appropriate for you to contact Gemini Parking Solutions directly."

    and now as a result you are going to complain as below ...



    This is a campaign of asking people to keep sending Theresa May actual hard copies of the trash they've been deluged with. Let her advisers' desks overflow with annoying paperwork re PPCs.

    No emails, all letters from genuine people pouring their hearts out. Write to your MP as well as Mrs May:

    https://bmpa.zendesk.com/hc/en-us/articles/211923909-Why-not-write-to-your-MP

    The more the better, write it yourself if you are able and enclose copies of the threatograms and rubbish thrown at you.

    Do not do this by email - make your paperwork land with a thump on desks, just like it all landed in a very unwelcome way on your doormat.

    Apparently the DCLG are looking to make an announcement before the year end so let's make MP's and Mrs May aware that action needs to be strong. You can be sure that the BPA and IPC suits are lobbying Parliament and meeting their friends in suits.

    So let the consumers' voices be heard.






    thanks

    Ralph
    • muslimahi
    • By muslimahi 5th Feb 17, 9:23 PM
    • 588 Posts
    • 39,180 Thanks
    muslimahi
    Sorry to revive an old post but I thought it would be helpful to have all Chase Farm queries in one post for future searchers.

    I am helping a friend out who received a PCN from Gemini in Chase Farm Hospital. Chase farm in under construction and she was confused if the car park was in use/need payment as it was a mess.

    She has gone ahead and appealed to Gemini with her circumstance and was obviously rejected (It does mean she has confirmed she was the driver sadly). I have now taken over and stopped her from paying out. I have compiled the following for Popla. Please can someone have a read and let me know if it is enough to win as post Beavis things seems to have changed a lot. Thank you.


    Parking charge notice!
    POPLA Verification code is:!


    I am the registered keeper and I wish to appeal a recent parking charge from Gemini issued at Chase Farm Hospital. I submit the points below to show that I am not liable for the parking charge:

    1)The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    3. No legitimate interest - this charge is not like that in the Beavis car park/contract.


    1)The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.!

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

    http://imgur.com/a/AkMCN

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.!

    Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

    http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and!'agreement on the charge'!existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.!

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.!

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.!

    The letters seem to be no larger than .40 font size going by this guide:

    http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

    As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

    http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and!want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ...and the same chart is reproduced here:

    http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

    ''When designing an outdoor sign for your business keep in mind the readability of the letters.!Letters always look smaller when mounted high onto an outdoor wall''.!

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''!

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':!

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.!
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact!'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'!about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


    2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.!

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).!

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d who has the responsibility for putting up and maintaining signs

    e the definition of the services provided by each party to the agreement



    3. No legitimate interest - this charge is not like that in the Beavis car park/contract.

    This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

    The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY.

    It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.!

    The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

    As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.!

    There is no commercial justification for an agent of an NHS Trust to use images cherry-picked from various cameras as a car traverses a site, to profit by disproportionately fining a visitor quite correctly relying upon the clear offer of 20 minutes parking (plus BPA grace periods).

    Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

    https://www.gov.uk/government/publications/nhs-car-parking-management-htm-07-03

    https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

    ''Charges should be reasonable for the area.''

    ''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

    ''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

    ''NHS trusts should publish:

    - their parking policy
    - their implementation of the NHS car parking principles
    - financial information relating to their car parking
    - summarised complaint information on car parking and actions taken in response''


    ''Contracted-out car parking
    NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

    NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

    Contracts should not be let on any basis that incentivises additional charges.''

    ''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

    None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

    The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

    In ParkingEye v Beavis at 32, it was made clear that a test has to be considered!in every case!and an interest will!'RARELY'!extend beyond the usual penalty rule (Lord Dunedin's four tests):

    ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation.!The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

    Lord Mance at 152 added:!''What is necessary in each case!is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

    POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.!

    If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests.!

    4) No standing or authority to pursue charges nor form contracts with drivers!

    I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemini must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Gemini

    I suggest that Gemini are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.

    Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.
    In addition, Section 7.3 states:

    “The written authorisation must also set out:!

    a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined!

    b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement!

    d who has the responsibility for putting up and maintaining signs!

    e the definition of the services provided by each party to the agreement.''

    I put Gemini to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used.
    In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
    Last edited by muslimahi; 05-02-2017 at 9:52 PM. Reason: Adding info
    Comping since September 2011.
    • Coupon-mad
    • By Coupon-mad 6th Feb 17, 12:11 AM
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    Coupon-mad
    #4 is a repeat of #2. So remove #4.

    I'd add some more specific stuff (ideally photos of obscured signs behind building works) to point #1 to tell POPLA about this:

    Chase farm in under construction and she was confused if the car park was in use/need payment as it was a mess.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muslimahi
    • By muslimahi 6th Feb 17, 2:29 PM
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    muslimahi
    Thank you Coupon- mad. Deleted 4 and I have asked my friend to go and get pics if she can.
    Comping since September 2011.
    • muslimahi
    • By muslimahi 27th Feb 17, 8:10 PM
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    muslimahi
    I had to submit the appeals without any pictures as my friend couldn't go down to the hospital but I did mention the construction work in point #1. I submitted the appeal on behalf of my friend (As popla allowed this option) as she isn't at all good with computers/emails.

    I have today received emails from POPLA giving me Geminis response and giving me 7 days to respond. Please can any one have a look through their response and help with any points.

    A Parking Charge Notice (PCN) was issued to the driver of vehicle registration XXXXX on the XX/01/2017 at the location Chase Farm Hospital, The Ridgeway, Enfield, Middlesex EN2 8JL for the contravention “Failure to Pay for the Duration of Stay”. On the date of contravention, there was no payment allocated to the above vehicle registration; this indicates that 2 hours 8 minutes of the motorist’s stay remains unpaid for, hence the PCN was issued. I have noted appellant`s comments regarding No Evidence of Landowner Authority, The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself and No legitimate interest. The appellant has stated within the appeal that he is the registered keeper however; the name of the registered keeper provided by DVLA is different from the appellant`s one. As no evidence of the appellant being the registered keeper has been provided, unfortunately, I am unable to consider this claim. In regards to appellant`s comments that there is no evidence of landowner authority, please, see the client agreement which proves that we do have the right to manage the car park on behalf of the landowner. Please be advised that due to confidentiality reasons, we are unable to provide a copy of the agreement to the appellant. In regards to appellants comments on the unclear and insufficient signage, please, see the site images file. There are a number of clearly displayed signs advising on the site regulations and parking restrictions in place. The signage is displayed clearly at the entrance and throughout the location. It is the motorist`s responsibility to be aware and comply with the site regulations at all times. I am satisfied that the signage displays ANPR logo advising on camera system in place and also BPA logo. The signage is retro-reflective and complies with BPA requirements. With regards to the appellant’s comments on construction, whilst I can confirm that there are building works taking place on the grounds of the above location, the works are not taking place within the car park nor do they interfere with the signage or car park in which the vehicle was parked. In regards to appellant`s comments on No Legitimate Interest, although the appellant believes that this charge is not the same as in the case ParkingEye v Beavis, I am satisfied that the judgment of that case does apply onto this PCN too. The signage was displayed prominently at the entrance and throughout the car park. The PCN is a parking charge, not a penalty and the issue of genuine pre-estimate of loss is not relevant. The charge is £100 reduced to £60 if paid within 14 days. I believe that this is neither extravagant nor unjustifiable. The appellant is not the registered keeper and it is unclear whether he was the driver of the vehicle on the date of contravention or not. However; the appellant appealed this PCN on behalf of the registered keeper who have not provided driver`s details yet. The appellant has not denied within the appeal that the contravention took place but has instead given excuses as to why the parking restrictions were not complied with.

    The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. Motorist has parked within restricted area which is owned by our client. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is therefore the motorist’s responsibility to ensure that he or she abides by the conditions of parking at all times. As displayed within the signage by staying at the location, the motorist accepted all of the prevailing terms and conditions of the parking contract including the charges for the breach of that contract. These signs offer the parking contract to the motorist and sets out the terms and conditions of the parking and upon which by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached. Gemini Parking Solutions fully complies with the guidelines set by that of the British Parking Association who are the regulating body for the parking industry. We find that, by failing to comply with the site regulations, the vehicle was parked in breach of the terms and conditions of parking displayed and we are satisfied that this charge has been issued correctly.

    -----------------------------------------------------------------------------

    "The appellant has stated within the appeal that he is the registered keeper however; the name of the registered keeper provided by DVLA is different from the appellant`s one. As no evidence of the appellant being the registered keeper has been provided, unfortunately, I am unable to consider this claim"

    I don't understand what they mean here and who they refer to as the HE? My friend is Mrs XXX and I (Mrs too) have submitted the appeal on her behalf.


    They have also submitted a pdf with all the pictures from the site which I have uploaded here

    https://www.scribd.com/document/340453126/Chase-Farm-Multi-Storey-Site-Images

    Finally along with the initial PCN, they have submitted my friends initial appeal to them which is below and also a screenshot from their computer system showing her details/offence and how much was due on the day (£3)

    -----------------------------------------------------------------------------------------
    Dear Sir / Madam

    I am writing to appeal my parking ticket issued on the XXXX for my car XXXXX

    On the day of parking, I have been to the urgent care for an emergency chest pain that the 111 had referred to and asked me to stay and wait for the ambulance to come, as my situation was deteriorating by then. And I would like to mention that the car parks gates were open with no one working at sight, I was not even sure whether the car park is still under the same pay and display order since the whole place looked like a building site where I have not visited for a long time.

    I would truly appreciate your understanding regarding this matter where I have no intentions at all to park irresponsibly, I had chest pain thought to be heart problems where the para medics invited to keep me for a while to check while I was not able to drive home alone with my son until later on.

    Looking forward to hear from you soon.
    Mrs XXX
    Last edited by muslimahi; 27-02-2017 at 8:21 PM.
    Comping since September 2011.
    • Coupon-mad
    • By Coupon-mad 28th Feb 17, 10:41 AM
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    Coupon-mad
    The appellant has stated within the appeal that he is the registered keeper however; the name of the registered keeper provided by DVLA is different from the appellant`s one. As no evidence of the appellant being the registered keeper has been provided, unfortunately, I am unable to consider this claim.
    Yes but she admitted who was driving in her first (weak) appeal, so the above doesn't help. ''No keeper liability'' was pointless in the POPLA appeal, seeing as she had already blown that.

    Did they include proof of a contract with the Hospital? Or a witness statement confirming they have authority as per your appeal point? If not, point that out in rebuttal this week, urgently.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muslimahi
    • By muslimahi 28th Feb 17, 12:34 PM
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    muslimahi
    In regards to appellant`s comments that there is no evidence of landowner authority, please, see the client agreement which proves that we do have the right to manage the car park on behalf of the landowner. Please be advised that due to confidentiality reasons, we are unable to provide a copy of the agreement to the appellant.
    That's all there is about landowner authority. Are they allowed to submit things to POPLA which can be kept from us for confidentiality?

    I think this is the only point I can hold on to for now and hope for a win for her as too much damage done with her initial appeal? 😞
    Comping since September 2011.
    • Coupon-mad
    • By Coupon-mad 28th Feb 17, 1:03 PM
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    Coupon-mad
    Are they allowed to submit things to POPLA which can be kept from us for confidentiality?
    No. So tell POPLA on the portal as your comments that there is no landowner contract in the evidence pack you have, so they have failed to show landowner authority under section 7 of the BPA CoP.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muslimahi
    • By muslimahi 9th Mar 17, 3:18 PM
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    muslimahi
    Thank you Coupon-Mad. The appeal has been successful. I just wanted to update the post incase anyone is following the same process.

    Decision Successful
    Assessor Name: Ms Butler
    Assessor summary of operator case
    The appellant did not make an appropriate payment for parking time.

    Assessor summary of your case
    The appellant has raised several grounds of appeal. These are as follows: • No evidence of landowner authority. • The signs are inadequate. • No legitimate interest, the charge is not like that in ParkingEye-v-Beavis.

    Assessor supporting rational for decision
    After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. The operator is therefore pursuing the registered keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. PoFA 2012 sets out to parking operators that: “2) The notice must – f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— The Notice to Keeper states “We now request this amount is paid using one of the payment methods described overleaf; If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012 when outlining the period of 28 days beginning with the day after that on which the notice is given. I can only conclude that the Parking Charge Notice (PCN) was issued incorrectly. Accordingly, I must allow this appeal.
    Comping since September 2011.
    • Umkomaas
    • By Umkomaas 9th Mar 17, 3:28 PM
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    Umkomaas
    Well done you, and (a guarded) well done POPLA on seemingly starting to get the hang of PoFA (or at least this Assessor has!).
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 9th Mar 17, 6:37 PM
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    Coupon-mad
    The Notice to Keeper states “We now request this amount is paid using one of the payment methods described overleaf; If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”. As such, I am not satisfied that the operator has met the minimum requirements of PoFA 2012 when outlining the period of 28 days beginning with the day after that on which the notice is given. I can only conclude that the Parking Charge Notice (PCN) was issued incorrectly.
    Nice - a definitive decision about Gemini Notice to Keeper letters not being compliant. Could you tell us the date of decision and the POPLA code please so others can quote it on their appeals v Gemini?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muslimahi
    • By muslimahi 14th Mar 17, 2:28 PM
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    muslimahi
    POPLA assessment and decision: 09/03/2017

    Verification Code :4160317097

    Hope this helps others.
    Comping since September 2011.
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