Gemini Popla Appeal

sj218

Firstly, apologies if I ask questions here that are covered elsewhere, please kindly point me in the right direction! I've read what I can but have some case specific queries:

I think I appealed to Gemini 30 days after (ie late) they put ticket on my car. They didn't mention this in their reply but the appeal was rejected. I need to submit my Popla appeal by tomorrow, which would be 28 days after I received Gemini's response to my 1st appeal.

My appeal was emailed and as follows:


"10 June 2016


Gemini Parking Solutions London Ltd

Dear Sir or Madam,

Reference number: xxxxx
Vehicle registration number: XXXXX

You issued me with a parking ticket on 14 May 2016 but I believe it was illegally issued. I will not be paying your demand for payment for the following reasons:


There was insufficient signage
The car park in question has insufficient signage to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally.


The charge is disproportionate and not commercially justifiable
The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner.

In my case, the £100 charge you are asking for far exceeds the cost to the landowner of my car being parked there. I therefore feel the charge you have asked for is excessive.


If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.

Yours faithfully,"


So it's not exactly clear if I was or was not the driver. Have I shot myself in the foot here?

My main argument to Popla will be that they haven't sent me a postal NtK, but is this argument still valid given the wording of my 1st appeal?

FYI, here's Gemini response to my appeal:

05th July 2016

Dear Motorist,

Parking Charge Number: Vehicle Registration: Issue date and time: Location: Contravention: Verification code: XXXXX 11:48:04 GLL Walthamstow 243 Markhouse Road, Walthamstow, London. E17 8RN No Ticket xxxx

A Parking Charge Notice (PCN) was issued to vehicle registration xxx on the 14/05/2016 at the location GLL Walthamstow, 243 Markhouse Road, Walthamstow, London, E17 8RN for the contravention 'No Ticket'. We can confirm the Enforcement Officer observed your vehicle, where they checked all windows and noted that there was no ticket displayed within the windscreen of the vehicle. It stipulates within the site terms and conditions displayed at the entrance and throughout the car park that all motorists must pay and clearly and visibly display a valid ticket within the windscreen of the vehicle at all times in order to comply with the site regulations. We have noted your comments regarding insufficient signage however; please, see the site images below. There is a clearly displayed signage at the entrance and throughout the location advising on the site regulations and parking fees. Unfortunately, we are unable to take your mitigating comments into account. It is the motorist`s responsibility to be aware and comply with the parking regulations at all times. With regards to your comments about the parking charge amount claim and loss, we refer to the judgment of the Court of Appeal in ParkingEye Limited v Beavis: Key points: 1 2 3 4 The parking charge (£85, reduced to £50 if paid within 14 days) was considered to be a deterrent to overstaying, but the intention to deter was not sufficient to invalid the term of the contract with the driver (or licence there is some discussion in the judgment that it might be a licence or a contract). In order to invalidate the contract (or licence) the parking charge would have to be extravagant and unconscionable and the charge made in this case was considered to be fine. The Judges did not say what amount of parking charge would be extravagant and unconscionable (and therefore not enforceable); The parking charge made in this case was not a penalty, and the issue of genuine pre-estimate of loss is not relevant; There is no need to graduate the amount of a parking charge after an initial free period of parking has expired; Local authorities make similar parking charges and there is no reason why the private parking industry "

5 6 7 A parking charge is an acceptable way to encourage turnover in car parks and to prevent motorists from leaving their cars for extended periods of time; Parliament has supported (via the Protection of Freedoms Act) that such parking charges could be made so long as they are brought to the attention of the motorists at the time of use of a car park; and The Court has granted permission to appeal to the Supreme Court, but Mr Beavis may not wish to do so given that the judgment is so strongly in favour of the parking industry. Should you wish to read the full script, you can do so using the following link:
Please be advised that 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 There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist and sets out the terms and conditions of the parking area upon which the operator will rely, and upon which, by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached. 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. Your vehicle was parked outside of the set terms and conditions of the site and therefore your appeal is considered as unsuccessful and the ticket shall stand. The payment for £100 is now due as you have exceeded the 14 day period. 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. You have now reached the end of our internal appeals procedure. Should you wish to make a second appeal, this can be made to POPLA provides an independent appeals service. 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 favour you will be required to pay the full amount of £100.00. By law we are also required to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then Yours faithfully, Appeals Centre "


Not sure if it's exactly clear from formatting of the above but they haven't made at all clear what my Popla appeal ref number is. Is this significant?

I have moved but not updated address as registered keeper of the vehicle, so I haven't provided Gemini with a postal correspondence address. Should I update registered keeper address now?

My intention is to base my Popla appeal on relevant wording I found on the 'luke' thread relating to chase farm hospital titled 'GEMINI Parking Solutions'

(New forum user so can't paste proper link)

Any help relating to any or all of the above points would be incredibly appreciated! Many thanks in advance team! ��

Umkomaas

This is a mixed up, messed up template response that is at least a year out of date. How do we tell?

The Court has granted permission to appeal to the Supreme Court, but Mr Beavis may not wish to do so given that the judgment is so strongly in favour of the parking industry.

Barry Beavis did in fact appeal to the Supreme Court on 22 July 2015, with the Judgment delivered 4 November 2015. It's clear that Gemini don't understand much of what this is about, but, like many private parking companies, believe that Beavis gives them free rein and justifies all of their charges and they attempt to browbeat motorists into believing this with random references to Supreme Court and cherry picking bits from it to give 'weight' to their extortion.

But this is, for now, by the by. You need to concentrate on your POPLA appeal. Once you've drafted it into a reasonable format, post it up here for critique.

Redx

the popla reference shoul;d be clearly shown in that letter you received

if not complain asap and get it asap

and remove the ticket number and vehicle reg from post #1 asap too

and change your address with the DVLA asap , otherwise you can be fined up to £1000 for not doing so

sj218

Thanks for the help so far, I have followed your suggestions.

Here's the proposed wording:


'POPLA Reference XXXX

Dear POPLA,

I am appealing Parking Charge Notice Nos. XXXX, issued by Gemini Parking Solutions London Ltd. (“Gemini”) on 14/05/2016, to my Vehicle, registration XXXXX at GLL Walthamstow (Gemini location code XXXX). I am appealing as the keeper of the said vehicle. No admissions have been made at any time re the driver, and no assumptions should be drawn.

I submit the points below to show that I am not liable for the parking charge:
1) No Notice to Keeper has been issued - no keeper liability established under Protection of Freedoms Act 2012
2) No standing or authority to pursue charges nor form contracts with drivers.
3) Unclear and non-compliant signage, forming no contract with drivers.
4) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
5) No genuine pre-estimate of loss

1) No Notice to Keeper has been issued - 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.
To date I have not been issued a Notice to Keeper (NTK) by Gemini. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 14/05/2016 and therefore the NTK was required to reach me by 09/07/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Gemini provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

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

I believe that 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 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.

3) 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.

There are no clear sings in the parking area near the space the vehicle was photographed in. I believe that Gemini places its signs so high or low that terms would only be legible if a driver got out of a car to try to read them. Any photographs supplied by Gemini to POPLA will no doubt show the signs with the misleading aid of a close up camera. As such, I require Gemini to state the height of each sign in its response. The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract, which must be shown in full at the entrance.

Unreadable signage breaches Appendix B of the 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 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. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third-party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of Gemini but visitors of the very buildings that are home to these parking spaces; they are not expecting to read a contract when they park to visit the stores. I contend the extortionate charge was not ‘drawn to his attention in the most explicit way’ (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal):

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

4) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

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.”

5) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. 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”) 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 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, '


** Can I argue point 4 above at all if parking in surrounding areas requires a permit? **

Any suggestions? Many thanks in advance!

Umkomaas

Drop GPEOL - all but dead post-Beavis - you risk losing if you leave it in, regardless of other salient points. You'll chance a newbie POPLA assessor reaching for the GPEOL/Beavis button generating an 'appeal unsuccessful' template response.

You will also need to dismantle the charge in the context of Beavis - check other recent (2016) appeals for ideas on this.

sj218

Umkomaas wrote: »

Drop GPEOL - all but dead post-Beavis - you risk losing if you leave it in, regardless of other salient points. You'll chance a newbie POPLA assessor reaching for the GPEOL/Beavis button generating an 'appeal unsuccessful' template response.

You will also need to dismantle the charge in the context of Beavis - check other recent (2016) appeals for ideas on this.

Re GPEOL - gotcha, thank you.

Really sorry but I'm struggling to find examples of what you mean re other recent (2016) appeals... can you point me in the right direction please?

bod1467

Check the POPLA Decisions thread. Start at the end and work back. Some of the posts give links back to the originating threads where POPLA appeals are shown.

sj218

So do I need to be saying something like the below instead of para 4 that I previously posted titled 'Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.?

"
4. Beavis case not relevant.

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

The Operator 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 UKPC 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 them-selves.”

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, the Operator has made no loss and the charge is a penalty. The vehicle was fully entitled to park as it did. The only alleged error is that temporarily on the material date a permit was not displayed (not that there is any obligation to). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, their only interest is to seek to profit from an inadvertent error. 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 inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not, as the Operator 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.

In this case the imposition of a £100 charge for temporarily forgetting to display an unnecessary permit is quite obviously causing an imbalance of the parties’ rights to the detriment of the appellant contrary to the requirements of good faith. Had the Driver not overlooked displaying the permit then no such charge would have been issued.
It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such a momentary oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.

The sum of £100 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 £100 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 and not for UKPC. 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 twisted 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 this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) 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 by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all. "


Thank you!

Coupon-mad

Yes, that sort of thing is OK although I only skim read it, so make sure it doesn't mention another parking firm or anything not relevant to your ticket.

And re the 'liability' argument, after the point #1 about 'no keeper liability' I recommend an extra point about no DRIVER liability, like #2 here:

https://forums.moneysavingexpert.com/discussion/comment/70989090#Comment_70989090

2. The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.

(change the wording from that one, to suit).