Gemini Parking Solutions

Redx

it tellls you what that next step is

POPLA

ie:- a POPLA appeal , before the end of the month

remove all the details too (use the edit function)

popla code
pcn number
reg number

any other identifiers too

paul1971paul

Hello
Yes sorry what i meant to ask was what do i need to put into the POPLA - the same as i wrote to Gemini and to include my blue badge copy?
Thank you
William

Redx

no , almost none of that will work at popla

your popla appeal is based on legal arguments , see recent 2016 popla appeals on here drafted by other members

and edit that post above to remove those identifiers

it also mentions PALS but you dont appear to have complained to PALS as an offshoot to the main appeal

paul1971paul

Hello Redx

I will check this out.

I have complained to PALS but have not heard back from them, i have copy of the email i sent to them.

Thank you
William

Coupon-mad

Search this forum board now for the keywords: 'POPLA Gemini Hospital' to find good similar POPLA appeals to copy from. You will that the POPLA stage is a much more detailed appeal based on legal arguments like 'no keeper liability'. Show us your version NOT written off the top of your head but instead, based on the search results showing you a Gemini one written a few weeks or months ago in 2016. I can recall one or two good ones.

How come you say 'I have now had this reply'? surely you mean your daughter-in-law did?

We did tell you the appeal comes from her (the registered keeper) not you. The POPLA appeal too, is submitted in her name as keeper, that's the point of arguing 'there is no keeper liability' which only the keeper can use as an appeal point.

Or did you somehow put your name to it even though you were neither driver nor keeper?

paul1971paul

Hello Coupon-mad
No it is all in my daugher in laws name - iam only involved because i said i would like to handle it because i found this site and the help on it - she sent me copy of the email she had back as keeper, iam only a circumstance on the incident and only detail in my reference is copy of my blue badge.

I will search results and put in here what iam proposing her to send to POPLA.

Thank you
William

Redx

in that case write posts on here on the basis that you are employed by the keeper , so "my client" etc like you see in the hundreds of court programmes on tv

"my client has received an NTK from Gemini"

"my client is sending the following appeal to popla with your approval or critique"

the bit where you use the word I is confusing , because a third party is handing this to you , a solicitor would not say I received this letter, but "my client received this letter" gettit ?

or you can and should say "my daughter has received an NTK"

clarity will be a big help here, especially in obtaining tailored replies

good luck

paul1971paul

OK i have done a search and found this post which was successful - some areas of the text dont apply to my daughter in laws ticket and i have put in bold the questions i would like help with.
I have changed the name of their hospital with the one in question here, Stepping Hill.
Many Thanks
William

I am the registered keeper and I wish to appeal a recent parking charge from Gemini issued at Stepping Hill 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’. (our charge was £60 reduced to £25 if paid after 14 days – now its past 14 days they are asking for £60 – do I change the £100 to £60?)
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. Please see the attached map as proof. This is discriminatory. (some of these points are not relevant to Stepping Hill like the location of the paying booth and the touch screen device – do I take this out or re word ?

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. (Again some points not relevant to Stepping Hill Hospital, re word or delate?)

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. Please see all images attached that explain the great deal of stress and effort the disabled person is expected to undergo. This is enough to mislead and confuse the able bodied person. (Again some points not relevant to Stepping Hill Hospital, re word or delate?)


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. 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). (what is this notice? We have only ever had the ticket on the screen and the email reply from Gemini to say our appeal was unsuccessful and the ticket was issued correctly and we had to pay £60)

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. (as above)

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 Stepping Hill 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). (again not had any notice to keeper as above points and the amount they are asking us for is £60)

e. This NTK does not identify the creditor, which may be Gemini, may be Stepping Hill, 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. (a lot of this will not be the same for Stepping Hill Hospital – should I remove the above?)

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. (again the amount we are being charged is £60 – do I just change?)


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’. (again do I change to £60?)

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 Stepping Hill 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. (again do I change to £60? And reference again to the Highlands wing which is nothing to do with Stepping Hill Hospital so again should I remove this reference?)

6) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. (again do I change to £60?)
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”) (again do I change to £60?) 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,

Redx

you change the £100 to £60 where its relevant in this case, but not where the courts are talking about it

alter the signage issues to fit the facts for Stepping Hill , signage is a crucial appeal point as its forms the basis of the contract

if there has been no NTK postal notice to the keeper, point this out in the POFA2012 failure section, ie:- no transfer of liability from driver to keeper as no NTK issued between day 29 and day 56 as detailed in POFA

6) is a total failure as Barry Beavis found out after 3 court cases and 11 judges, failed last november

now await further critique after editing the last post accordingly

plus you still have not edited post #11 despite repeated requests to do so

attention to detail if you please as you are asking for help and advice and yet failing to act on it

thank you

paul1971paul

Hello Redx
Sorry what do you mean i need to edit post#11?
Thank you
William