Windscreen ticket from GEMINI PARKING SOLUTIONS

mn1999

Hi, everyone,


I am here trying to help a friend who got a ticket from Gemini Parking Solutions London.


Having successfully appealed with POPLA before with the help from this forum, I found this case is different to mine one (ANPR camera).


She parked in a private Controlled Parking Zone (permit holder only), got a temporary permit from nearby church. The permit somehow disappeared from the windscreen dashboard, hence the story now.


The problem is: she hastily appealed to Gemini (not waiting for NTK), and not surprisingly, got rejected.


I just checked the POPLA code, it was generated 6 days before the rejection letter. A point to complain!


I need help with the appeal letter. Is it still same as how registered keeper appeal, the PPC might pursue her as the driver now.


Could I still count on the 'No GPEOL' point and no land owner authorisation?

I wound appreciate any helpful response.


Thanks.

Redx

yes, but if she appealed as driver she cannot use the POFA 2012 arguments

so bad signage, not a gpeol , no contract , but bear in mind they may be alleging breach of contract and not a gpeol, so that may need to be factored into any appeal

mn1999

Thanks, Redx.


Yes, I'm afraid she had appealed as the driver, although she did not make a statement that she was the driver, the fact that she appealed to the ticket straight away could surely indicate she was the driver, and I think she is the registered keeper as well.


She mentioned the fallen parking permit in the original appeal. So is it better not to include this point in the appeal to POPLA or should I argue that:


Given a permit was issued by the Church already, the PPC still insisted on upholding the ticket, they did not act on the Landowner's interest. So there must not be any authorisation from the landowner for the PPC to charge the driver.


Their signs are fine. It seems like the "NO authorisation from Land owner" is the only argument that is valid now.


Need more advice please.

Redx

how do you know for sure that the signs "are fine" ?

are you an expert in such signage, so much so that you can categorically certify that it meets or exceeds the BPA CoP ?

I doubt it

the appeal goes in on the usual legal arguments, using the A B C procedures

A = Accept nothing

B = Believe nothing

C = Check everything

so you allege the signage is inadequate, the figure is not a gpeol , there PPC has no valid contract with the landowner, plus any other points that can be made

dont do their job for them, make them prove their allegations, prove the contract, prove the charge , prove the signage

one judge last year said that a PPC signs were "gibberish" , so make them prove they conform to the CoP , especially if you have not checked them against the CoP

popla wont be interested in the events, only legal arguments , they will ignore any mention of the permit slipping off the dash

this person had the right to park, so no loss occurred , permit or no permit on display , the landowner has given them the right to park by issuing the permit, so how can the PPC take this person to court ? only the landowner has locus standii and as they gave their implied permission, end of

mn1999

Thanks. I shall soon draft an appeal based on those point.

What about the foul play on sending the rejection letter later than the date the POPLA code was generated? This is a breach of BPA code I think. Should I mention it or is that a complain matter for BPA to consider?

Umkomaas

Is the Church the contractor of Gemini? Ask them to cancel the charge. They have the proof that they issued the permit, and I'd guess if they are issuing permits (even if they're not the contractor) they will have some avenue open to them to cancel.

Do this in parallel with the POPLA appeal, not instead. Plough on with POPLA, do NOT miss their deadline date.

Any potential breach of the BPA CoP should result in a complaint to them.

mn1999

Please help proof-read my appeal letter before I send it off ( I need to send before 10/06). As mentioned before, this is a windscreen ticket on a private residential estate. My friend had appealed before a NTK was sent to her. Please help clarify some point in my appeal:


1. Is it OK to appeal as keeper and driver or just as driver since no NTK was produced in this case.


2. There are realistic possibility that a contract does exist in this case, as I have seen a newsletter on the website of the residential estate, stating that after the clamping was outlawed, they have employed Gemini Parking Solution to enforce the parking on this private land. I can post a link if this helps.


3. Should I mention anything about the break of CoP by GPS that they obtained the POPLA code 6 days earlier and their appeal rejection letter?


Thanks in advance.





Dear POPLA Assessor,


APPEAL RE: Gemin Parking Solutions PCN-- ********


****** London


VEHICLE REG: *******


POPLA Verification Code: *********


I am the Registered Keeper/driver of the above vehicle and I am appealing against the above mentioned charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.


2. The amount demanded is not a Genuine Pre-estimate of Loss.


3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.


Here are the detailed appeal points.


1. Flawed landowner contract and irregularities with any witness statement


Section 7 of the BPA's Code of Practice states that private parking companies must have written authorisation from the landowner to carry out all aspects of management and enforcement on the site.


I do not believe that Gemini Parking Solutions has the necessary legal capacity to enter into a contract with a registered keeper/driver of a vehicle parking in a site they do not own, or indeed the lawful status to allege a breach of contract in their name. Specifically, to comply with the Code of Practice, the contract needs to grant Gemini Solutions the right to pursue parking charges in the courts in their own name, as creditor. I require the parking company to produce a copy of the official contract with the landowner that shows POPLA that they do have such authority.


It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.


It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. Therefore a signed witness statement is unacceptable.


2. The parking charge is not a genuine pre-estimate of loss


Section19.5 of the BPA's Code of Practice states that "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".


The £100 charge asked for far exceeds the cost (if any) to the landowner, as the whole site is free for any visitor to park as long as a permit is obtained, as in my first appeal to Gemini Parking Solutions, I had supplied them a copy of a valid permit on that incident, therefore no financial loss or damage was sustained by the landowner by any alleged breach.


In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, Lord Dunedin stated that a charge becomes a penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling". Given that Gemini Solutions charge the same fixed amount to any alleged contravention (whether serious/damaging, or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss, therefore it is a penalty.


The Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999' state that ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case normally be void to the extent that it amounts to a penalty under English common law...''


It would, therefore, follow that these charges were punitive, have an element of profit included and are, as a result, unenforceable. In order to refute this, I require production of a breakdown of how this loss is calculated. By law this loss should be as a result of the alleged breach and not operational expenditure, which would have still been incurred were no breach to have occurred.


In a decision about a Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye’s generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''


My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.


3) The signage at the car park was not compliant with the British Parking Association's Code of Practice (BPA) (section 18) and therefore there was no valid contract between the parking company and the registered keeper


The signs on the entrance to the site are positioned too high and the lettering is far too small to read from a car, especially when in moving traffic. Signs on the sides of the road are very difficult to be spotted as they are even higher and smaller than the entry sign for anyone to read.


The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the signs do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this estate as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise. As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.


Any alleged contract can only be formed at the entrance to the premises, prior to parking. Therefore, as defined by Unfair Terms in Consumer Contracts Regulations 1999, the requirements of forming a contract, for example a meeting of minds; agreement; certainty of terms, were not satisfied. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.


Furthermore, by getting very close to the sign, I noticed that on the sign 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/driver, I cannot be expected to guess the basis of Gemini Parking Solutions’ 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.


I request that my appeal is upheld and for POPLA to inform Gemini Parking Solutions to cancel the PCN.


Yours Faithfully,





The Registered Keeper/Driver

Redx

1) just appeal as keeper, no need to give out any more information than needs be

in asking this you clearly have not read post #3 of the NEWBIES sticky thread, where it says the following

DO NOT APPEAL SAYING WHO WAS DRIVING, NEITHER AT FIRST APPEAL STAGE NOR AT POPLA.

2) always query the contract

3) you can mention it but its really more of a complaint to the BPA really
your popla appeal will be decided on legal arguments only, the PPC have issued the invoice so they have to prove their "case"

the actual appeal seems "reasonable" to me, but wait for other replies as long as the popla expiry date isnt due (do not miss that expiry date deadline)

mn1999

Thanks Redex for your quick reply.

I will delete the driver bit and use registered keeper instead.

Any more thought please?

:beer:

mn1999

Please can more heavyweight in the forum come in and have look.

Thanks.

mn1999

Help! Need more advice before I summit my POPLA appeal. Thanks.