Gemini PCN Popla appeal

greciansecfc

Hi
Need help with my first draft of my Popla appeal.
Gemini rejected my appeal to them of course.
Received for ticket expiry. Windscreen. Paid £1 for two hours. Option to pay £1 for extra hour.

Here's my draft Popla appeal. Any advice gratefully recieved. Adapted from a Highview one but that was for a free car park so wasn't sure how I should word this one.

POPLA Reference Number:
Vehicle Reg:
PPC: Gemini Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN: 2014

I as the registered keeper received an invoice from Gemini Parking Ltd. requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of exceeding the duration of two hours. The issue date on the invoice is _____________.

As the registered keeper, I would like to appeal this notice on the following grounds:
1 Charge not a genuine pre-estimate of loss
2 No authority to levy charges
3 No Creditor identified on the Notice to Appellant
4. Signage
5. Unlawful Penalty Charge
6. Business Rates
7. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require Gemini Parking Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred (37 extra minutes amounts to approximately 65p) by Gemini Parking Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because there can have been no loss arising from this incident. Neither can Gemini Parking Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking, as the parking meter rate in the corresponding area is £2.50 per hour. I would question that if a charge can be discounted by £40 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. No authority to levy charges
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Gemini Parking Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles Gemini Parking Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the Gemini Parking Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the Gemini Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Gemini Parking Ltd. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Gemini Parking Ltd. and the owner/occupier, containing nothing that Gemini Parking Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
Added to this, it was noticed on closer inspection of the signs a few days after the alleged incident that Gemini Parking Solutions are still the PPC managing the car park. However, it is noted that Gemini Parking Solutions has been liquidated as a company and therefore no longer exists. The sign has a sticker with Gemini Parking Solutions London Ltd placed over the small print at the bottom of the sign. This means that two companies, one of which has been liquidated are managing the car park. I put to Gemini Parking Solutions Ltd to provide evidence that they are still in a position to carry out business despite being liquidated.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. Signage
The sign at the entrance to the car park is positioned on a pole on the passenger side of a standard right-hand drive vehicle. This makes the sign difficult for a driver to see from inside the car, regardless of which side of the road the entrance of the car park is approached from. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. I enclose photograph that demonstrate the entrance signage. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “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”.
I therefore respectfully request that my appeal is upheld and the charge dismissed

5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a “£1 for 2hours, £1 per hour thereafter”, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


6. Business Rates
As this car park is now being used for the purpose of running a business by Gemini PARKING LTD., which is entirely separate from any other business the car park services, and generates revenue and profit for Gemini PARKING LTD., I do not believe that Gemini PARKING LTD. has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Gemini Parking Ltd. to strict proof that they have so registered the business they are operating at Mile End Leisure Centre car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

7. Summary
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Yours faithfully

Coupon-mad

I would get rid of 'business rates' as an appeal point as it's not relevant to POPLA, that's from a fairly old template. BUT the rest is good and should win, if the signs are alleging 'failure to comply' or 'breach' or 'contravening'.

greciansecfc

Thanks coupn mad.
Which of the 4 grounds for appeal should I tick on the form.
is it the one about the charge.
I will check the signs again but what if none of the phrases- failure to comply., contravening or breach are used.
Can I definitely claim not a true pre estimate of loss for a pay and display car park. Are rules different when it's not free.

Hot_Bring

Tick all the boxes except "The vehicle was stolen"

Coupon-mad

Can I definitely claim not a true pre estimate of loss for a pay and display car park.

Yes that's always a point of appeal, when a PPC are alleging breach. That's the one that wins!

Are rules different when it's not free.

Only in that there may be a very small 'initial loss' of £1 but it's nowhere near the sum they are after! And there are no 'rules' this is about contract law and the fact that a firm cannot penalise/fine people in UK law, it's not recoverable unless it's a GPEOL.

You could add to this bit:

... The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty because the driver paid and displayed, paying £1 and it is in black & white that the stated amount to pay for extra time was another £1 (now that I have checked their terms on the signs). So a GPEOL of loss would be £1 if the contravention even occurred, which is denied seeing as there is no evidence from Gemini of actual 'parking time' nor evidence of a grace period allowed before ticket purchase.'

greciansecfc

I believe they may have mentioned the grace period in the denied appeal letter. Also they took a photo of the windscreen ticket so that would be evidence of parking time?
sorry all the questions. Just want to get it right.

Coupon-mad

Ooops, sorry thought I was still on a Highview thread! Try this:

The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty because the driver paid and displayed, paying £1 and it is in black & white that the stated amount to pay for extra time was another £1 (now that I have checked their terms on the signs). So a GPEOL of loss directly flowing from an overstay would be, at the most, £1 because the charge has to wholly relate to the alleged loss.

greciansecfc

Thanks coupon mad. Back in June I received notice of the fact that I won this appeal to popla on tge basis that I alleged yhey didn't have a contract in my apoeal to the ppc and they didn't produce one. Sweet. They don't know tgeir knee from their elbow!

Coupon-mad

Well done!