Gemini Parking Solutions London Ltd - POPLA Appeal Help

wee_rabbit

Thanks first of all to everyone who contributes here; the information is priceless (if a little overwhelming to a first timer!).

Here's my story which, which with the majority of new posts, doesn’t match previous scenarios exactly (I know this information will have no legal clout; it's purely for background):

My car was off the road so I borrowed a friend’s car as my father was ill and there was a chance I'd need to get to him at short notice. I live in the Olympic Park in London and have a valid permit issued by Newham Council for my own vehicle, with registration number, which allows me to park in an appropriate bay on the street, so I displayed this permit in the window of the borrowed vehicle. The vehicle was parked for four consecutive days (17th to 20th August) and wasn't moved as thankfully, I had no need in the end. No windscreen PCN was issued on the first day but then three were issued daily on the other days, each £100 reduced to £60 blah, blah. There was no way that I could get a permit with an updated registration number in the timeframe above, otherwise I would have done.

I am not the registered keeper of the vehicle but I don’t want my friend to have to get involved with this as he was attempting to do me a favour, so any appeals would need to come from me in some capacity.

I made a rather naive and knee jerk plea via email to Gemini to cancel the charges. This was obviously refused and 3 x POPLA codes were issued. With POPLA being in transition, I have registered my intent to appeal, using the three separate codes, via their website for consideration sometime after the 1st October. I guess this gives me a bit of breathing space in which to compile my arguments to contest the PCNs?

A couple of things of potential note:

1. The issue reason given was ‘0008 – no permit’ which isn’t entirely correct

2. When checking the POPLA codes via the Parking Cowboys code checker, all codes show a generation date of the 25th August 2015, even though the rejection letter was dated the 4th September 2015 and I didn’t write to Gemini until the 26th August 2015. Would this imply prejudgment?

Here’s where I’ve got to with the appeal wording. If anyone would be willing to read and comment, I would be grateful. I have pictures of the signage, PCN, Gemini rejection letter etc, so please ask if this would be useful to see (although I can't see how to attach things to this initial post). Although I've included a section with regards to the NTK, none have been issued thus far.

Re: Gemini Parking Solutions London Ltd. PCN, Reference Codes xxxxxxxxxx
POPLA Codes: xxxxxxxxxxx

On behalf of the registered keeper of the vehicle, I wish to appeal recent parking charges issued by Gemini Parking Solutions London Ltd. I submit the points below to show that there is no liability for the parking charge and ask that all points are taken into consideration:

1. No standing or authority to pursue charges, nor form contracts with drivers
2. The signage was inadequate so there was no valid contract formed
3. Unreasonable / unfair terms
4. No Creditor identified on the Notice to Keeper
5. Non Compliant Notice to Keeper.
6. No genuine pre-estimate of loss (GPEOL)

1. 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 Parking Solutions London Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This notice has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Gemini Parking Solutions London Ltd merely did hold a bare license to supply and maintain (non-compliant) signs and to issue 'tickets' as a deterrent. 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 Parking Solutions London Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini Parking Solutions London Ltd and the landowner. This is required so that POPLA and I can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc).


2. The signage was inadequate so there was no valid contract formed

The signage breaches Appendix C of the BPA Code of Practice as it does not refer to the ‘Terms’ as well as the ‘Conditions’ which apply. It also does not refer to charges which apply after 48 hours or no return within 14 days. The BPA states:

“As well as the AOS logo, signage within the parking area should clearly show the type of parking; and if, when and how any payment should be made. If one of the following standard wordings applies to your parking area you should use it. If not, you may alter the wording to fit the situation. Words in square brackets may be left out
Group 2
Charges apply [after this] [after x minutes/hours]
Terms and conditions apply”

I also require Gemini Parking Solutions London Ltd to state the height and position of each sign and to provide evidence that the terms and conditions of parking is both displayed and at a height which complies with BPA Code of Practice. A notice is not imported into the contract unless displayed so prominently that the party 'must' have known of it and agreed terms.

Furthermore, no consideration / acceptance flowed to and from both parties, so no contract was formed.

3. Unreasonable/unfair terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer". The car was parked under the instruction of a resident, parked in good faith displaying a permit issued by Newham Council and in an appropriate parking bay.

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

4. No Creditor identified on the Notice to Keeper

The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 in that it does not identify the creditor. By definition “the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle" Whilst the Notice has indicated that the operator requires a payment to be made to Gemini Parking Solutions London Ltd, there is no specific identification of the Creditor, who may, in law, be Gemini Parking Solutions London Ltd or some other party.

5. Non-Compliant Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

The following points may be observed on the Notice to Keeper, making this a non-compliant Notice to Keeper under the POFA 2012, Schedule 4 paragraph 8:

a. The 'period of parking' is not shown, (as required by POFA 12 Schedule 4 paragraphs 8(2)(a) and 8(2)(b)); only the “issue time” and “time first seen” are shown.

b. It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 paragraph 8(2)(c))

c. It does not identify the creditor (as required by POFA 12 Schedule 4 paragraph 8(2)(h)).

d. The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 paragraph 8(2)(i)). 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. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 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 will result in no 'keeper liability'.

6. No genuine pre-estimate of loss (GPEOL)

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 proportionate and commercially justifiable.

The Gemini Parking Solutions London Ltd Notice to Keeper alleges 'breach of terms' and as such, the landowner / occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because this is a residential area without parking or commercial revenue to be lost.

The British Parking Association Code of Practice uses the word 'MUST'. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.

I have not received any breakdown of how Gemini Parking Solutions London Ltd calculated the charge and so therefore require Gemini Parking Solutions London Ltd to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The Department for Transport Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. Gemini Parking Solutions London Ltd cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate Gemini Parking Solutions London Ltd for their “losses”.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable

The demand for a payment of £100 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.

In addition, the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. Gemini Parking Solutions London Ltd may make reference to the Supreme Court’s decision in the ParkingEye vs Beavis case and how they believe it will have an impact on the outcome of this POPLA appeal. I would argue that Mr Beavis overstayed in a busy commercial car park which Parking Eye paid the Landowner £52,000 a year to farm.

Gemini Parking Solutions London Ltd have no financial interest in this residential area, and there is no commercial justification for this charge.

It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and / or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

This concludes my appeal and I respectfully request that my appeal be upheld.

Northlakes

You appear to have plenty time now to double check your appeal before it goes to the OS.

Is this a council penalty charge operated by Gemini acting as agents as this alters matters?

Have Gemini generated the POPLA codes against your original E-mail and what date was that?

wee_rabbit

Here's the rejection let from Gemini as well. I've just realised that the actual vehicle registration number and the number displayed in the first paragraph don't match, and neither does the date - fishy but probably just a copy and paste job? I also don't think the charge was enforceable at 05:49 on the final day. Contrary to what I said before, tickets were actually not issued in the first two days of parking.


Dear Motorist,
Parking Charge Number: 00136453 + 00136458 + 00137468
Vehicle Registration: BF12YKK
Date PCNs Issued: 19/08/2015 – 09:28:18 + 20/08/2015 – 10:42:30 + 21/08/2015 – 05:49:28
Location: Mirabelle Gardens, Stratford, London, E20
Contravention: "No Permit"
Verification Code: 4162375002 + 4162375003 + 4162375004

A Parking Charge Notice (PCN) was issued to the driver of vehicle registration HK62 RUH on 18/03/2015 at the location "Block 14 at East Village Development Ltd, London, E20 1AN" for the contravention of "No Permit". We can confirm the Enforcement Officer observed your vehicle, where they checked all windows and noted that there was no permit displayed within the windscreen of the vehicle. The contravention can be seen within the photographic evidence taken at the time. The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. 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 the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. We noted your comments that you are the parking permit holder however, the permit is registered to a different vehicle and no other vehicles than those registered on the permit can park there.It is the responsibility of the driver to display a valid permit clearly and securely. As stipulated within the signage displayed throughout the development all motorists must display a valid Permit within the windscreen of the vehicle at all times in order to comply with the set terms and conditions. I find that, by failing to display a permit, the motorist became liable for a parking charge notice, in accordance with the terms of parking displayed and we are satisfied that this charge has been issued correctly. The motorist parked outside of the set terms and conditions of the site and as a result your appeal was unsuccessful as the representations did not make sufficient grounds.

I understand the point you are making in your appeal, but we strictly enforce these regulations and cannot take mitigating circumstances into account. 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 ensure that photographic evidence is taken with every PCN that is issued in case of disputes. You have 14 days from the date of this letter to pay at the discounted rate of £60.00 per PCN. Payment after this period will be for the full amount of £100.00 per PCN. Failure to pay the amount will result in further costs being incurred and may also result in Gemini Parking Solutions Ltd, Instructing a Debt Collection agency to collect any sum due.

Should you wish to make a second appeal, this can be made to POPLA who provide an independent appeals service. We have enclosed the POPLA appeals form that you will need to complete and send to POPLA. All representations to POPLA will need to be received within 28 days from the date of this letter. Please note that if you wish to appeal to POPLA, you will lose the right to pay the charge at the discounted rate of £60.00 per PCN, and should POPLA’s decision not go in your favour you will be required to pay the full amount of £100.00 per PCN.

Coupon-mad

There's a heck of a lot more missing from Gemini NTKs than the creditor and it's a really important appeal point to get right. So this point 'No Creditor identified on the Notice to Keeper' needs to be more like 'the Notice to keeper omits statutory wording in Schedule 4 so there can be no keeper liability'.

Compare 'your' NTK wording to the POFA Schedule 4 (that law is linked in the newbies thread, for those who want to dig deeper - as you should, IMHO).

If this was a NTK which followed a windscreen ticket you nede to look at paragraph 8 of the Schedule 4 link - it's easy, in bullet points, nothing too 'legalese'. If it was a postal PCN with no windscreen PCN first then compare the NTK wording to paragraph 9.

Let us know what you find - be pedantic. It is not OK for them to paraphrase or miss parts out.

Did you check all this already, is it about Gemini PCNs?

''5. Non-Compliant Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

The following points may be observed on the Notice to Keeper, making this a non-compliant Notice to Keeper under the POFA 2012, Schedule 4 paragraph 8:

a. The 'period of parking' is not shown, (as required by POFA 12 Schedule 4 paragraphs 8(2)(a) and 8(2)(b)); only the “issue time” and “time first seen” are shown.

b. It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 paragraph 8(2)(c))

c. It does not identify the creditor (as required by POFA 12 Schedule 4 paragraph 8(2)(h)).

d. The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 paragraph 8(2)(i)). 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. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 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 will result in no 'keeper liability'.''



BTW, in my experience, Gemini will not contest a well-worded POPLA appeal. You will win!

Also, you don't even need to write it yet! POPLA are not asking for appeal wording yet, under the new system you need to just registered 'intent to appeal' this week and you will hear in a week or so, when the new POPLA service needs your evidence and appeal by. So do that 'registration' online now if you haven't already, and spend the time now, researching the wording.

wee_rabbit

Thanks for the reply.

My original email to Gemini was sent on the evening of the 26th August. The POPLA codes were generated the day before this, according to the code checker...

Northlakes

What has Newham Council permit got to do with this? Apologies if I'm being a bit thick!

wee_rabbit

Thanks for the second reply as well - no NTKs have been issued yet but I will definitely scrutinise if and when and will brush up on the relevant section in the meantime.

I've registered my intent to appeal with POPLA, so all good on that score.

wee_rabbit

On street parking permits are issued by Newham Council for the street which I live on. Gemini 'police' the area but I'm not sure what relationship one has with the other - I should've mentioned that I have written to Newham Council to complain and to seek clarification and am yet to receive a response.

I've made the assumption that Gemini issued the ticket because the registration number of the permit didn't match the vehicle, but with hindsight, they may just be trying it on.

"Is this a council penalty charge operated by Gemini acting as agents as this alters matters?"

I'm guessing it is but waiting on clarification. There's absolutely no mention of Newham Council anywhere on the PCN(s)