Gemini NtK

parkinguhoh

Hello all! I've read all the rules and examples, and learnt a lot (thank you!) - I received the attached NtK 15 days after the incident, but the issue date is only 9 days after. 94 minutes of unpaid parking.

The driver didn't get a ticket as the app wasn't working and two little kids were making life stressful. Forgot to resolve before leaving the car park.

It looks to me like Gemini have got on top of the various PoFA issues they used to have, and I can't find much wrong with the notice - any advice would be very welcome!

troublemaker22

I disagree that Gemini has overcome their POFA problems. They’ve said they will pursue the keeper “on the assumption” the keeper was driving instead of issuing a POFA-compliant notice. The law does not recognise any such assumption - see VCS v Edward 2023. 

They’ve ditched POPLA for the IPC IAS where they obviously hope to get favourable outcomes despite failing to comply with POFA. 

Coupon-mad

It looks to me like Gemini have got on top of the various PoFA issues they used to have, and I can't find much wrong with the notice - any advice would be very welcome!

@troublemaker22 is right.

There is no access to POPLA because Gemini jumped ship to the far laxer 'appeals' service of the IAS, which our long experience shows, is as useful to consumers as a chocolate teapot.

And POFA Schedule 4 is not about "assuming the keeper was the driver".  That pseudo-POFA copycat wording is appallingly misleading IMHO.

That is 100% a non-PoFA NTK.  

troublemaker22

Gemini have absolutely not got on top of the POFA issues.  As @Coupon-mad correctly pointed out that notice does not contain the warning required by POFA paragraph 9(2(f).  You've unhelpfully obscured the dates so we can't tell whether you are still in time to appeal to Gemini or whether there is a second date-based POFA fail.  But even if there is only the 9(2)(f) fail that should be enough to secure an easy victory so long as you appeal before the deadline.  

I am confident of this because I have just today completed a successful appeal against an identical Gemini PCN.  The timeline was as follows:

1.  Appeal to Gemini as keeper, refusing to identify the driver and point out the POFA fail.

2.  Gemini responds with a request for the driver's details which I ignored.

3.  Gemini rejects the appeal and offers appeal to IAS.

4  Appeal to IAS pointing out that as Gemini had decided not to use POFA they had to prove the appellant was driving.

5 Gemini threw in the towel and cancelled the ticket.

The appeal to IAS was long and included case law citations.  I'll be happy to make the full text available to Forumites but I need one of the regulars to figure out where to post it for maximum impact.  It would need a change to the standard advice on the Newbies thread never to appeal to IAS.  I've appealed 4 times to IAS and each time either the PPC has thrown in the towel and cancelled the PCN or IAS has allowed the appeal.  My record with POPLA is much worse!  

Coupon-mad

I am very happy to show it in post 3 of the NEWBIES thread if you share the wording you used.

Umkomaas

On the PoFA front, whilst not a showstopper (but just adds to the failure),Gemini have not indicated that they are the 'Creditor'. Probably would be totally disregarded by the IAS, but that's not a reason for not including it in any appeal. 

troublemaker22

I don't think it is necessary to use the word "creditor" in order to comply with POFA.  

troublemaker22

Coupon-mad said:

I am very happy to show it in post 3 of the NEWBIES thread if you share the wording you used.

Emailing it to you now

Umkomaas

troublemaker22 said:

I don't think it is necessary to use the word "creditor" in order to comply with POFA.  

Do you not think that 7(2)(e), 8(2)(h), 9(2)(h) and 14(5)(e) require the creditor to be identified?  Most NtKs now have words to the effect 'XYZ Parking is the creditor' (and duly identified per PoFA).

Coupon-mad

I've always thought that was a tenuous point. IMHO the Claimant is clearly 'identifying itself as the creditor' whether they use the word or not.  

Umkomaas

Coupon-mad said:

I've always thought that was a tenuous point. IMHO the Claimant is clearly 'identifying itself as the creditor' whether they use the word or not.  

I agree, I hinted at that in my earlier post 'not a showstopper', but I'm sure we had a case fairly recently - probably POPLA, or a remote possibility, maybe unlikely, that it was a court case? I've given it a bit of search time, but drew a blank, too many 'creditor' search hits to dig through. Even in the one page of Schedule 4 alone, the term is used 37 times!

Previously I have also believed it to be too tenuous to bother raising false hope of a silver bullet for the motorist, but that decision above rekindled my interest. 

Anyway, we roll on ....