Gemini Parking Solutions

paul1971paul

OK here i go again - changes and merged - hope now ok.


Parking charge notice ref xxxxxxxx
Vechicle Registration xxxxxxx
POPLA code xxxxxxx

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 £60.00. Fails the ‘Aziz test’.
6) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)



1) The operator/landowner has not complied with provisions of the Equality Act 2010

Gemini/landowner has not complied with provisions of the Equality Act 2010 In fact under the Equality Act Chapter 2, Gemini would be considered to be showing indirect discrimination and discrimination due to disability.

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.

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 the hospital appointment on that day and this clearly is a barrier.

2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither identified 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. A notice to keeper has never been sent. No transfer of liability from driver to keeper as no NTK issued.

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 or send the mandatory Notice to Keeper renders it non-compliant.

3) No standing or authority to pursue charges nor form contracts with drivers

Gemini 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 Gemini 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.

In addition, Section 7.3 of the British Parking Association CoP states:

“The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement.''


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 BPA 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".
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.
The requirement to pay £60.00 is not clear on any of the signs that are directed to the disabled driver and are not prominent. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.

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 £60.00. Fails the ‘Aziz test’.

I also wish to reference the Aziz test 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 £60.00 had there been negotiations in advance, the answer here is obviously no. One could have parked free on the 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 £60.00 to this parking firm especially since they discriminate against the disabled person, no clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

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.

6) No legitimate interest in enforcing a charge – (Parking Eye vs Beavis Case not relevant)

Gemini has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term. This case can easily be distinguished from ParkingEye v Beavis. With regards to the location of the car park and the interests of the operator, there is no comparison with the Beavis decision with this being a residential car park.

Gemini may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, Gemini has made no loss and the charge is a penalty.

Gemini has no legitimate interest in enforcing this charge; their only interest is to seek to profit. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this alleged offence would justify such a disproportionate, extravagant and unconscionable charge. Careful analysis of the Supreme Court judgment is not, as the Gemini may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

The sum of £60.00 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £60.00 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis decision is not a silver bullet, not for any operator. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule in that case only. It may be useful to refer to but it cannot be used to strike out the majority of private parking ticket appeals.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed the following in writing, as the official POPLA policy regarding the requirement for proper application of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team”

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding from Gemini or POPLA that the Beavis case or 'GPEOL' automatically supersedes all other points of appeal about other parking charges in other car parks.


Please note a complaint has also been recorded and made direct to Stepping Hill Hospital via PALS, ref FC23517, awaiting reply.

This concludes my POPLA appeal

Yours faithfully,

Redx

ok , seems fine to my untrained eye and no MINSTER BAYWATCH any more and the BPA seems to have been correctly spelt out now

wait for others to comment before submission , meanwhile check your popla expiry date on parking cowboys website

paul1971paul

thankyou Redx

paul1971paul

Hello
Is this ok to send in now or any other comments?
I have 18 days left to submit my appeal.

Thank you
William

Umkomaas

I think your EA 2010 appeal point is weak as it stands. You need to set it in some context. I've not read back over your entire thread where you might have explained the background - and that's the position a POPLA assessor will be in when reading your appeal.

The only context in your appeal point is this:

As the disabled person in the vehicle attended the hospital appointment on that day and this clearly is a barrier.

Without a long rambling story, you need to give more detail than this. As it reads now, one could argue that any vehicle carrying a disabled person can be parked anyhow, for as long as the driver likes with absolute impunity because any time it happens, you just shake the EA2010 to make you bombproof.

Your key appeal point is the lack of NtK, therefore no keeper liability. Hit them hard with this as your first and opening shot and move the EA2010 further down the batting order. Readjust your header index to reflect the reshuffle.

Then get it off. Select 'Other' from the reasons for appeal on the POPLA portal, attach your appeal as a .pdf file, and put something in the appeal window like 'Please see appeal (reference number xxxxxxxxxx) in the attached .pdf file'

Take a screen shot just before hitting the 'Submit' button if you want to have proof that you've prepared this for submission.

Good luck - do come back and let us know the outcome. Knowing the results of our advice is the fuel that keeps us motivated.

paul1971paul

yes i absolutley will come back and update - people have been very kind and i wont forgot that.
Thank you
William

paul1971paul

Just thought i would let you know we have won this appeal - thank you for everyones help.:T

Dear ******* ******

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************.

Gemini Parking Solutions London Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

Redx

well done , they dont like well constructed forum appeals, too much work for them to dissect and rebut

Coupon-mad

paul1971paul wrote: »

Just thought i would let you know we have won this appeal - thank you for everyones help.:T

Dear ******* ******

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************.

Gemini Parking Solutions London Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

That's great news!

beamerguy

paul1971paul wrote: »

Just thought i would let you know we have won this appeal - thank you for everyones help.:T

Dear ******* ******

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference *************.

Gemini Parking Solutions London Ltd have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

WELL DONE .... Makes you wonder why Gemini Parking Solutions London Ltd continue with their scam ???