Popla appeal

Rebecca1811

Hi, I need help!
I recently received a parking charge notice from Gemini Parking solutions, I was in a hired vehicle and they last my details on. I was dropping someone off at chase farm hospital, there was nowhere to stop outside as there were works going on and ambulances out front, I pulled into the car park to let my mum down and I had two kids in the car and one was sick everywhere I cleaned the little one up and then left I was there total of 40 mins, I was unaware it was an automatic car park and I didn't pay as I did not leave the car park and had no money on me I appealed to Gemini and explained this they have declined and I need to appeal to popla I cannot afford to pay this I'm a single parent and I've been charged by the hirer company which they have taken the money already £60 please help.
This was my appeal to them:

I hadn't left the car park I was dropping someone off, there was nowhere to stop as there were works going on and ambulances blocking the way I had to pull into the car park, I had 2 children in the car 1 which was sick everywhere I needed to change him I stopped in the car park so I could clean him up and change his clothes I didn't leave the car park and go inside as I didn't have the money to pay for the meter I wasn't aware it was automatic recogonition I didn't think I was doing anything wrong. I'm a single parent and cannot afford to pay these fees, I'm happy to send you the money owed for the time I was there which I believe to be £2 as that was the lost for the owner of the car park. If you wish to reject my appeal please send me a popla code.
There response was:

Thank you for your appeal received on 19/06/2017 in relation to Parking Charge Notice whichwas issued to vehicle registration on the 16/06/2017 at the location Chase FarmHospital, The Ridgeway, Enfield, Middlesex, EN2 8JL for the contravention “Failure To Pay ForThe Duration Of Stay”. We have reviewed the case and noted the comments that you have made.



We have noted your comments that you was dropping off somebody and did not leave the car park,you also did not have money to put into the machine and wasn’t aware that it was ANPR managed.However, there is clearly displayed signage at the entrance and throughout the location advising onthe site regulations, parking fees and location of payment machines. Please, see the site imagesbelow. Unfortunately, we are unable to take the mitigating circumstances into account.
There are two payment machines available to motorists in the multi-storey car park, one is rightoutside the car park and another one is on the ground floor in the stairwell. Both machines acceptpayments by cash and card. Motorists are also given the option to pay by phone on the day using theRingGo facility or online on ]within 48 hours.
On the date of contravention, there was no payment allocated to the above vehicle registration. Thisindicates that 40 minutes of your stay remains unpaid for, hence the PCN was issued.
The above location is private property and is managed by Gemini Parking Solutions London Ltd onbehalf of the land owner. In this instance, the driver parked within a restricted area on land which isowned by our client. When parking on private land, a motorist freely enters into an agreement to abideby the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensurethat he or she is aware of and abides by any clearly displayed conditions of parking.
Gemini Parking Solutions fully complies with the guidelines set by that of the British ParkingAssociation who are the regulating body for the parking industry. We ensure that photographicevidence is taken with every PCN that is issued in case of disputes.
The above vehicle was parked outside of the set terms and conditions of the site and havingconsidered all grounds for appeal, we are in this instance unable to accept your appeal.

Coupon-mad

I pulled into the car park to let my mum down and I had two kids in the car and one was sick everywhere I cleaned the little one up and then left I was there total of 40 mins, I was unaware it was an automatic car park and I didn't pay as I did not leave the car park and had no money on me I appealed to Gemini and explained this they have declined and I need to appeal to popla

You should have come here earlier, that appeal you made was terrible (sorry) and it told them who was driving. I despair. You could have won this soooo easily by just calling yourself the hirer and not saying who parked.

Don't go repeating that weak appeal for POPLA.

Sadly, you've already ruined your best appeal point as 'hirer' that you now can't use because they know you were driving (don't tell us the Hirer firm told them that you were the driver - no, they didn't - they told them who the HIRER was, and you should have stayed in that mode).

I cannot afford to pay this I'm a single parent and I've been charged by the hirer company which they have taken the money already £60 please help.

Boy oh boy you have made it harder for us to help you. Many would say, that some single parents (and pensioners) are often better off than some working two-parent families, but let's not go into that here. Your circumstances are your concern. But no-one here pays Gemini.

Please read the NEWBIES thread post #3 which has the POPLA appeal templates. We assume you already did read that thread, seeing as it politely asks newbies to read it first, before posting. Re-read post #3 of it and come back with your POPLA appeal using the templates.

Also, you can 'search this board' for 'Chase Farm POPLA' and copy one. Show us first - do NOT write your own.

Rebecca1811

Omg! I'm no good at this stuff didn't even know about popla until someone told me to search it. I have read it, is there something I should be seeing that I'm not 😬
I'm still not sure what type of template to use, and what I should be looking for, any chance for an idiots guide 😂

Redx

check post #3 of the NEWBIES sticky thread near the top of this forum, its all in there, if you look

the ability to pay (or not) has no relevance here , it wont be a factor in any appeal or in a court case , only the laws apply

but blabbing about who did what never helps anybody to win a case

Rebecca1811

I've found this template any good?



POPLA Number
Parking Notice Number
I wish to appeal a recent parking charge from Gemini issued at Chase Farm 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)No standing or authority to pursue charges nor form contracts with drivers.
3)Unclear and non-compliant signage, forming no contract with drivers.
4)No legitimate interest - this charge is not like that in the Beavis car park/contract.

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.

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.

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. This is enough to mislead and confuse the able bodied person.

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.




2)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

I suggest that Gemini are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.
In addition, Section 7.3 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.''

I put Gemini to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used.
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.

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.

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’.

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.

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.


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.

4)No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. 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.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.


Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:



''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''


''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''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 [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests..

Yours faithfully,

Rebecca1811

Also found this one which should I use, are they any good?



Dear POPLA Assessor,

Re: Gemini Parking Solutions, parking charge notice number: ____________
Vehicle registration number: ____________

POPLA Reference number: ____________


1. The parking charge is not a genuine pre-estimate of loss.
Gemini Parking Solutions claims that the charge is for ‘failure to comply’ with its ‘terms of parking’ and that the vehicle was ‘in breach’, so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park is a free car park that has no charging facilities whatsoever.

Therefore, Gemini Parking Solutions 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. 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. Gemini Parking Solutions 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 charge of £100, being sought for an alleged breach of the parking terms, namely ‘parked in a permit area without displaying a valid permit’, is disproportionately high. Consequently I contend and the BPA code of practice states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

Christopher Adamson stated in a POPLA appeal against VCS Ltd stated: ‘the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed... that a charge for damages must be compensatory in nature rather than punitive.’

The case at hand involves a private parking area for visitors. The vehicle was parked in an allocated visitor’s bay, which incurs no fees for parking at any point. Therefore, there is no loss to anyone. As the charge in this case is the same lump sum charged for any alleged ‘breach’ (irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this parking bay, etc.), it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre-estimate of loss in this case.

In addition, POPLA Assessor Christopher Adamson stated in June 2014 upon seeing Vehicle Control Services’ effort at a loss statement – likely to be broadly similar to any effort made by Gemini Parking Solutions – that:

‘I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach.’

In another upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs that were made up of general business costs was commercially justified. She said:

‘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.’

This case is the same and Gemini Parking Solutions is at best an agent, with a bare contractor’s license to put up signage and ‘issue tickets’. The vehicle was clearly parked in a visitors bay and it is therefore clear that this parking charge is punitive and no consideration has been given to calculating a genuine pre estimate of loss in this case. Therefore, I require the operator to submit a full breakdown of its genuine pre-estimate of loss to show how the loss is calculated in this particular parking area and for this particular alleged breach. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified nor proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2. No contract exists with landowner to pursue charges
The operator does not own the land in question and has provided no evidence that it is lawfully entitled to demand money from a Driver or Keeper. It owns neither proprietary nor agency rights and holds no title or share of the land. I do not believe that it has the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in its own name as creditor. I believe that at best it may hold a site agreement limited to issuing tickets and as such I require that it provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA Code of Practice, this contract must specifically grant the operator the right to pursue parking charges in its own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided ‘witness statements’ instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that the Landowner employs them. Such a statement would not show whether any payment has been made to the operator, which would obviously affect any ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the operator to pursue charges in its own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was ‘not valid evidence’. If Gemini Parking Solutions provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the operator and the Landowner containing nothing that Gemini Parking Solutions can lawfully use in its own name as mere agent that could impact on a third party. I therefore respectfully request that my appeal be upheld and the charge dismissed.

3. Unreasonable/Unfair Contract Terms.
There is no contract between Gemini Parking Solutions and I but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. According to the Office of Fair Trading, Guidance re Unfair Contract Terms:

‘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...’

I believe Gemini Parking Solutions is in breach of the Unfair Terms Act 1977 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
5. (1) 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.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

This is confirmed in the Office of Fair Trading’s extensive guidance on the UTCCRs 1999. The guidance includes the following advice:

‘The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a core term. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option.

‘The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.’

This charge is not exempt from the test of fairness then. It represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’ I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. This charge caused a significant imbalance in the parties' rights and obligations arising under the contract, which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts. For example, in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, it was stated that:

‘whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.’

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

4. Unclear and non-compliant signage not forming a contract
There are no clear sings in the parking area near the space the vehicle was photographed in. I believe that Gemini Parking Solutions 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 the operator to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and flash and the angle may well not show how high the signs are. As such, I require Gemini Parking Solutions to state the height of each sign in its response and to show contemporaneous photographic evidence of these signs in the dark without the aid of flash photography. 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 Parking Solutions 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.’

5. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Further to the above points, the notice I have received, as the registered owner of the vehicle, makes it clear that Gemini Parking Solutions is relying on Schedule 4 of the Protection of Freedoms Act 2012. Gemini Parking Solutions has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Gemini Parking Solutions or its client, its debt-collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...’.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but ‘identified’. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Gemini Parking Solutions has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under the Protection of Freedoms Act 2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is ‘fundamental to establishing liability’ for a parking charge, stating: ‘where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.’

As per the above points, Gemini Parking Solutions’ charge has no legal basis and I ask that the assessor nullify the parking charge notice issued by Gemini Parking Solutions. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. 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 be adjourned pending the Beavis case.

Thank you for your time and I look forward to hearing from you.

Rebecca1811

I've posted to templates can u take a look please and tell me what you think.
Thank you 😊

Coupon-mad

Both are not right.

- You can't use the Equality Act if you are not disabled.

- The second one must be two years old or more! You can't argue 'no genuine pre-estimate of loss' since 2015!

Why don't you simply put together the current, up to date POPLA template appeal points from post #3 of the NEWBIES FAQS thread? That's why I wrote the templates, and lots of newbies manage to easily put 3 or 4 points together to make a POPLA appeal that wins.

We have noted your comments that you was dropping off somebody

Surely they didn't say 'you was'?! Next they will be saying you 'should of' not parked!

I despair of the crap grammar around...

Rebecca1811

I can't seem to view those template that's why I've taken theses from threads about chase farm. I've amended the points you made, do you think this I should ok or do I need to add anything else before I submit.



POPLA Number
Parking Notice Number
I wish to appeal a recent parking charge from Gemini issued at Chase Farm Hospital. I submit the points below to show that I am not liable for the parking charge:

1. No standing or authority to pursue charges nor form contracts with drivers.
2. Unclear and non-compliant signage, forming no contract with drivers.
3. No legitimate interest - this charge is not like that in the Beavis car park/contract.



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 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

I suggest that Gemini are certainly not empowered by the NHS Trust to sue patients and visitors for correctly using the 20 minute drop off/pick up allowance.

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land and to enforce charges in the courts in their own name.
In addition, Section 7.3 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.''

I put Gemini to strict proof of compliance with all of the above requirements and specifically relating to drop off/pick up activity, not just a general redacted contract about the pay and display/permit area which was not used.
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.


2. 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.

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’.

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.

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.


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.

3. No legitimate interest - this charge is not like that in the Beavis car park/contract.

This case is an unfair, unenforceable penalty and differs from the 'ParkingEye v Beavis' judgment in every single fact, from signage to the rationale/justification of the charge.

The Beavis decision is not a silver bullet, not for any operator and not for ParkingEye. 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.

The unusual contractual licence to park that was offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from anything considered by the courts before.

As regards the Beavis case, it was made plain that in more complex contracts, an agent or landowner must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'.


Not only that, this sort of fine imposed in a Hospital car park disregards the NHS 'Car Parking Principles' first put forward by the Department for Health in 2014 and subsequently updated and established as clear Government Guidance, in 2015:

[
''Charges should be reasonable for the area.''

''Trusts should consider installing ‘pay on exit’ or similar schemes so that drivers pay only for the time that they have used. Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control.''

''Details of charges, concessions and additional charges should be well publicised including at car park entrances, wherever payment is made and inside the hospital. They should also be included on the hospital website and on patient letters and forms, where appropriate.''

''NHS trusts should publish:

- their parking policy
- their implementation of the NHS car parking principles
- financial information relating to their car parking
- summarised complaint information on car parking and actions taken in response''


''Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.

Contracts should not be let on any basis that incentivises additional charges.''

''Reasonable implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.''

None of the above was the case with this NHS Trust/ParkingEye. I would argue that this makes this charge unreasonable and unconscionable in the extreme.

The ParkingEye v Beavis judgment makes clear that the Courts would consider the disproportionate charge in this case to be the very essence of 'unconscionable' due to the circumstances of the case. It is a clear penalty because it is just that, punitive, with no other compelling commercial rationale nor even unambiguous evidence to support its imposition.

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''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 [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 152 added: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties [...] had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

POPLA must consider the rationale and reasoning behind a parking charge in each case, as well as the signage, because the Beavis decision depended upon both.

If an operator fails to show both apply, then the ParkingEye v Beavis case CANNOT be applied and POPLA cannot just roll out a standard paragraph about it, every time. The penalty rule remains engaged and parking charges are not 'properly given' if they are merely punishing an alleged (denied) breach but remain unjustified by way of any other legitimate commercial interests..

Yours faithfully,

Coupon-mad

I can't seem to view those templates

They are in links in post #3 of the NEWBIES thread, nothing special needed to view them.

Rebecca1811

When I click to view it says download and then say it doesn't support the software maybe it's my iPad...
Do you think I should go ahead with the last appeal I sent you.