Help! Gemini Parking Solutions - just submitted to POPLA

StEtts75

Hi, please help.

Only just found out about this site. I've cobbled together an appeal to POPLA using BPA's Code of Practice and other internet copying, which I sent in to them yesterday. Sadly, looking at this forum I think my appeal is currently likely to fail. Certainly judging by one of the example cases.

So, I need to know the following:

1. If I post up the appeal I've submitted could someone knowledgeable kindly check it and give some feedback? I warn you now it's a bit long! (Sorry)

2. If it looks like it is likely to fail, can I still submit further evidence / arguments to POPLA? It looks like I can submit evidence but will they take added arguments on board?

3. If the appeal does go against me, is there a 'next stage' for still winning?!

As I said, the appeal has started, so I need to get an idea of the likelihood of success and what, if anything, I can do to add to it.

Thank you

hoohoo

2. Email popla with your extra points ASAP. Include the charge is not a gpeol.
3. Yes, the next stage would be to convince a judge you are right.

StEtts75

I've included the GPEOL in the submission. However, looking at one of the cases that failed, I'm worried mine will go the same way.

It's an allocated parking spot, the permit was not in view. I've argued there is no GPEOL, as there is no loss to the landowner or to Gemini - I'm the only person that can park in the spot. The failed case used a similar argument.

Gemini refused the initial appeal on the simple basis of 'No Permit'. So as a secondary argument I've pointed out that the signage is not up to BPA requirements. Again, the example case used a similar argument but it appears that failed too.

I am thinking of sending in the following wording with some further photos (anyone think this will help?!):

Please find attached further photos.

One of the photos is of the standard sign, in close up in daytime. I would stress that GPS says there is a 'parking charge'. The legal basis of the charge is not clear (i.e. breach, trespass or contractual fee?). I would strongly contend that this is a punitive charge and in no way reflects a genuine pre-estimate of loss.

As keeper, I cannot be expected to guess the basis of GPS's allegation.
(i) if alleging breach of contract, where is a breakdown of alleged 'loss' and what is the intention of enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, where is proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I would expect to see a VAT invoice and GPS's explanation of how they can allow drivers to park 'in breach' for a fee when their client originally contracted them in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law. Especially given the time of day of the invoice being issued.

There is no mention of the landowner that GPS claims they are 'managing' the car park for.

GPS is not the landowner and there is nothing to say they have the standing to offer contracts to drivers nor to bring claims in their own right.

I have see no proof of GPS's 'locus standi' to offer contracts to drivers at this site and to bring a claim in their own right for this contravention. As they are not the landowner, I would expect to see a copy of their contract, showing the restrictions, the charges, the dates and terms of business including any payments between GPS and their client and the definition of their status as agents or contractors and their assigned rights (if any).

GPS has provided no explanation of the consideration that they believe flowed from the driver, and from GPS. Consideration from both sides is required for a contract.[\I]

TheFlamingRed

Re: Adding to an appeal

Did you write this in the appeal box on the POPLA website. If so, and it has not been long, you can still attach evidence as files. I cannot see why you cannot add a file in there with your 'better' appeal (they accept a word doc so I would upload one with "Appeal_Details.doc" and have your forum argument there), assuming your POPLA code is still up to date.

POPLA have to look at all the files. What I don't know is - what is the cutoff point to which you can no longer add evidence using their website.

Even then, if you email them, you can add to your evidence.

Re: worried about failure

You get to rebut any of their evidence they submit to POPLA, though you only have a couple of days to do this. If the PPC tried to justify their GPEOL and you don't refute it, some POPLA officials may not recognise that they include business costs / post parking event costs, etc. so you must refute any evidence The parkong company put forth.

[strike]Re: your original appeal

If you had submitted it here first, I am certain many people would point to you that you can robustly argue your points a lot clearer and with more detail, which would make Gemini work hard to put together a good evidence pack - and if they were smart, would see that they were really wasting their time,

However, with that appeal, Gemini will think that you're not arguing in as much detail as a sign of 'we can maybe try and win'. This means you will recieve an evidence pack, where they justify their Gepol, have witness statements and so forth.

However, You bought up just enough that you can make a solid argument to all their evidence, so long as you correctly refute this evidence, you should still win even with your original appeal. So you should still look optimistically.

A more experience member of the forum may offer more experienced advice though.[/strike] - misunderstood

gertysingh

1. Yes - someone more knowledgeable will give you feedback. Keep checking your post and if it still has not been responded- bump your thread to the top.

Note: You can add further evidence to your current appeal now

2a) Once the PPC has sent in their evidence pack - you can rebut any of their evidence after as long as it is before the appeal date.

b) Not sure about the added arguments. I added stuff to my rebuttal however the assessor did not look any further than the first point of no gpeol from my very short version. Some forumers have said you can only rebut their evidence and not add further points. Someone more knowledgeable will be able to clarify.

3. A Popla appeal is not legally binding on you. The PPC will have to take you to court in order to recover losses.

gertysingh

p.s. Have you also looked through the newbies thread post 3: http://forums.moneysavingexpert.com/showpost.php?p=64350585&postcount=3

StEtts75

Thank you to you all so far!

Ok, here's the appeal I submitted yesterday. I will be sending more photos and the wording in my second post above in the next few days. The appeal hearing date is 'on or soon after 17th October'.

Anyway...here goes.

Dear POPLA

I am the registered keeper and this is my appeal:

Please note, that in researching my appeal I have used the ‘BPA Code of Practice for Parking on Private Land 2014’ - Version 4, February 2014. In particular, I would refer you to the following sections:

• 18.1
• 18.2
• 18.3
• 19.5
• 19.6

I have copied these relevant sections into the Appendix of this document. I understand that GPS are bound by this Code of Practice.

My name is StEtts75 and I have been a resident at XXXXX for over 5 years. In that time I have had an allocated parking space for which I was issued (and continue to hold) a permit. The allocated space is marked ‘G’ in the car park.

Gemini Parking Solutions (GPS) are the second company to have taken over ‘management’ of the private parking area since I have been a resident. As far as I am aware, I have never signed a contract with GPS and I do not recognise them as having any contractual authority to make a claim or collect payments from me.

On 29th August 2014 I returned from work to my address and parked in my allocated space G at around 10:30pm. My permit was visible in the windscreen when I parked the vehicle. GPS have offered no evidence to counter this. I attach a photograph of my permit in place. I have held this permit for years.

When I returned to the vehicle the next morning, I found an invoice from GPS attached to my windscreen (reference XXXXXXX). The parking permit had slipped from view, which must have happened between me exiting the vehicle and the time of the ticket being issued – 22:58 according to the invoice. I believe the permit may have fallen when I closed my car door. Given that it was late at night, it is not unreasonable that I did not notice the permit had fallen. It was dark, the lighting in the car park is not particularly good and I genuinely did not notice until I returned to my car and GPS’s invoice the next morning.

I appealed the invoice from GPS, as the allocated space is mine, I hold a valid permit for the space and when I exited the vehicle on that night, the permit was clearly in view. It is unfortunate that it fell, however it was an accident and not in any way an attempt to park in a spot that is not mine.

GPS confirm in their response to my appeal that I am the resident and therefore are in agreement that the space is mine. I am able to prove to GPS that the space is mine and has been since I moved in and that I continue to hold the valid permit (all of which GPS should be able to confirm with XXX / the landowner if they are managing the car park on their behalf).




I have been parking the same car in that spot since taking ownership of the vehicle. Whoever carries out checks of the car park would see my relatively distinct car on most occasions in that same space. It is there on a daily basis and it remains there with the permit displayed. The one time the permit fell from view is the same time that a GPS employee visited the car park. It can only have been a spot check, as I'm the only person who could call to say that a car was incorrectly in my space. I would not call GPS to ticket my own car!

It is a simple fact that I was parked in my allocated space and even allowing for the accidental fall of the permit, I was still in my own space and not stopping anyone else from parking - the space is solely mine. This is a fact and very clearly, there was no loss incurred by either the landowner or GPS. I have not trespassed, as I was in the space allocated to me as the resident of XXXXXX.

I do not understand how GPS can attempt to invoice me in these circumstances. A ‘charge’ of £60 has been invoiced with no indication of what this is for and with no breakdown of what these costs are. Once the facts of the situation were established, I believe that it was obvious it was an accident and not the same as a non-resident randomly parking in a private space.

GPS can offer no genuine pre-estimate of loss. Neither GPS nor the landowner have suffered any material loss due to me parking in my allocated space. I was not trespassing on my own parking space.
It is unfortunate that the permit fell from view, but this was a genuine accident and once this was established with GPS I find it wholly unreasonable that my appeal was rejected. Quite clearly it was accepted that I am the resident and that the space belongs to me. The appeal rejection from GPS is quite clear in stating ‘No Permit’. However, I have a permit and the circumstances surrounding the event have been explained in full. To say I have ‘No Permit’ is simply not true and I have and can continue to prove that I do.

I apologise that the permit fell, but given that it has been proven the space is mine, GPS cannot demonstrate any initial quantifiable loss. I was not stopping anyone else from parking (I am the only person with a valid permit for that space) and I was not causing any damage or obstruction to other vehicles.

Any charge must be an estimate of losses (e.g. loss of revenue). With no initial loss, any follow on costs from issuing an invoice are irrelevant - indeed, it appears to be an attempt to extort money! Overhead costs cannot be included, as there was no initial loss and GPS would have had the same overheads regardless.

In rejecting my original appeal, GPS say I ‘became liable for a parking charge notice, in accordance with the terms of parking displayed…’ Since the appeal was rejected, I have reviewed the car park and signage. Attached are some pictures taken at night and from the position of my parking space. As you will see, even with a flash, the sign is not very visible. The writing is small, especially in comparison to other signs in the car park.

Obviously I use the space on a daily basis but as I have a permit I have never had reason to read the sign. However, GPS are implying that in effect the signs became relevant to me in this circumstance. If this is the case, then I would very strongly argue that the signage is wholly inadequate – there is no sign on entry to XXXX and the sign opposite my space is written in too small lettering. It is particularly poorly visible at night.



GPS have said it is my responsibility to ensure the permit is securely in place. They have at no point provided any means of securely fastening the permit. I have used tape and you will see from the attached photos that other residents are in the same position. I would argue that GPS have a responsibility to provide adequate means to secure the permit.

The very fact that someone came around at such a late hour appears to be underhand in itself. Waiting until after dark and not giving someone a chance to rectify an honest mistake. Had someone checked with me, it would have been possible to quickly clear up any issues. Presumably, if GPS are managing the car park they are party to which space belongs to which property and could easily have confirmed this with me. No one with any valid say over my allocated space had contacted GPS on that day.

In my original appeal to GPS I invited them to come and confirm that everything I have told them is correct. At no point have they accepted the invite to clear this matter up. I have told the truth from the outset in order to try and clear up an honest mistake. GPS has simply hidden behind the email and not conducted themselves in a fair, just or professional way. It appears they simply want to try and claim money from people over whom they have no legal or contractual rights. When faced with the reality of the situation they have simply ignored the evidence and refused to discuss the matter.

GPS has threatened to increase the invoice from £60 to £100 if I do not pay them within a certain timeframe. They have also threatened that the invoice will increase if I appeal to POPLA and the case does not go in my favour. This is also completely unreasonable and seems to be an attempt to put undue pressure on me to not appeal to you as their regulator. Again, I would stress that GPS can prove no initial quantifiable loss. There should not be a charge of £60, let alone having a self-approved ‘right’ to increase the invoice. I feel this is a very threatening stance from GPS and do not agree that they have any such right.

In short, my position is fairly simple:

• I am the sole resident with a valid permit for the space in which I was parked on 29/8/14
• GPS confirms that I am the resident
• I have held a valid permit since moving in to XXXXX
• I have never signed any contract with GPS and do not recognise GPS as having any contractual authority to make a claim or attempt to collect any payments from me
• When I parked the car on 29/8/14 the permit was in clear view – it accidentally slipped from view
• The permit continues to be displayed and I continue to park in my allocated space
• I was not trespassing – it is my allocated space
• There was no material loss to either the landowner or GPS – it was effectively an ‘administrative’ error caused by an unforeseen accident
• GPS say that in the event of the permit slipping from view, the signs in the car park become valid - I strongly contend there is inadequate entry signage and the nearest sign to my car is wholly inadequate, especially at night
• GPS are threatening me with unjustified and unsubstantiated costs
• GPS wish to penalise me for pursuing any further appeal with POPLA

There are only 2 possible ways of viewing this case:

1. There is acknowledgement that the allocated space is mine and that it was a genuine accident that the permit fell from immediate view

2. GPS do not acknowledge this and simply say I did not hold a permit.

There is no provision in the Code of Practice for my particular situation, therefore one of these two views can only be taken.

In the first case, there is clearly no material loss as described in section 19.5 and 19.6 of the Code of Practice.

In the second case, GPS has breached their own 'contract' by not fulfilling their obligations 18.1 to 18.3. In particular, there 'must be' entry signs. There was not and continue to be no entry signs. A clear breach of the Code.

Either way, GPS has no right to try to invoice me for any sum at all. Arguably, regardless of either option, by breaching 18.1 to 18.3, it invalidates any attempt by GPS to invoice anyone, myself included.

With regard to signs, there were and as at today's date continue to be no entrance signs.

The signs in the car park are not easily readable from any distance and are unlit at night.

For these reasons alone, GPS are in breach of the BPA's code of Practice and therefore in breach of their own self-made contract.

Please note the attached photographs taken at the entry to XXXXX and also from my allocated space.

Finally, I would add that GPS advise me they have photographic evidence relating to their invoice but to date have not provided me with any.

TheFlamingRed

[Strike]

gertysingh wrote: »

b) Not sure about the added arguments. I added stuff to my rebuttal however the assessor did not look any further than the first point of no gpeol from my very short version. Some forumers have said you can only rebut their evidence and not add further points. Someone more knowledgeable will be able to clarify.

Good news is, the appeal isn't about mitigation and they've covered 2 out of the 4 big appeal points - debatably weekly but they are there to be added to in any rebuttals - namely locus standi and no GPEOL - which are also luckily the main two. Even if the OP was unable to add stuff about inadequate signage and ANPR (if applicable), the chances are still good. I am sure the forum would have a 99% win rate at POPLA with the sing NO GPEOL argument appeaLs. the reason MSE advises to appeal with all these points is:

1) extra insurance that appeals are upheld and the OPs get a PPC off of their back for an unfair charge. Many posters will find parking incidents a one off, and there's no point them appealing a one point POPLA appeal if appeal upholding is their goal.

2) make as much as a hassle for a PPC to make an evidence pack which covers all these points - time and money wasted on their part.

[/Strike]
Edit: scratch all that, I thought what you posted up in post 3 was your original appeal and you wanted to add ore points to it. Not that it was what you wanted to add. My bad, I mis-interpreted.

StEtts75

Sorry, I've posted it up in a backwards way.

Last post is the appeal sent in yesterday. The 2nd post is what intend to submit alongside some more evidence...

Coupon-mad

Go for it - try adding it as attachments on the POPLA website or simply emailing them citing the 'POPLA code' and 'Gemini Parking' clearly in the subject line. You shouldn't lose against Gemini, shame you've already said who was driving though as you threw away any criticism of the NTD and NTK (often a slam dunk win for a registered keeper to appeal about).

I reckon you will win on no GPEOL, as per usual.

StEtts75

Thank you, CM, Red, Gerty and Hoohoo. I'm feeling mildly more positive!