Gemini NtK

marina007

troublemaker22 said:

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

Hi Coupon-mad , will you be able to share the link to this post please? i've encountered the exact same issue and would benefit from the wording that troublemaker22 used to appeal against his case! many thanks 

Coupon-mad

Gemini Parking Solutions London Ltd (‘operator’)  

Appeal against PCN number xxxxxxxxx

Introduction and summary

1. The appellant appeals as keeper.  The appellant has no obligation to identify the driver and respectfully declines to do so.

2. The operator has not used the procedure in Schedule 4 to the Protection of Freedoms Act 2012 (‘POFA’) to proceed against the appellant as keeper but rather has chosen to proceed against the appellant ‘on the assumption’ that they were the driver.

3. The law does not recognise any presumption that the keeper of a vehicle was its driver on any particular occasion.  By choosing not to avail itself of POFA, the operator has imposed upon itself the burden of proving that the appellant drove the car at the relevant time, but the operator has provided no evidence that the appellant did so.

4. While the operator might in retrospect consider that it made a mistake in failing to use POFA, it is now too late to do so. IAS adjudicators must apply the law and cannot consider mistakes or extenuating circumstances.

5. Therefore, the appeal must succeed.

Detailed argument:

No liability as keeper

6. Parliament has provided a statutory procedure to enable an operator who does not know the name and address of a driver to pursue the keeper instead.  That procedure is set out in Schedule 4 to the Protection of Freedoms Act 2012 (‘POFA’).

7. In order to pursue a keeper under POFA, an operator must comply with the strict requirements for keeper liability set out in POFA.  In a case such as this, where the parking charge is initiated by a notice sent to the keeper (‘NTK’) without the prior delivery of a notice to the driver, the NTK must comply with all the requirements of POFA Paragraph 9 in order to be effective.

8. POFA paragraph 9(2)(f) states that a NTK must: "warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;"

9. The operator has chosen not to avail itself of the opportunity to hold the keeper liable under POFA.  Instead of issuing a NTK containing the warning required by POFA paragraph 9(2)(f), the operator’s notice included the following warning:

 

10. The operator has chosen to pursue the appellant on the ‘assumption’ that they were the driver instead of pursuing them as keeper under POFA.

11. Doubtless as a consequence of the decision to pursue the appellant as driver and not keeper, the operator’s notice fails to state that the operator’s right to recover from the appellant applies ‘if all the applicable conditions under POFA are met’ as required by POFA paragraph 9(2)(f).

12. POFA goes on to state in paragraph 9(4):

"The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; ..."

13. The definition of ‘relevant period’ is in POFA paragraph 9(5): "The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended."

14. The alleged parking took place more than 14 dats ago. Therefore, it is now too late to issue a POFA-compliant NTK.

15. Therefore, the operator cannot hold the appellant liable as keeper.

 No liability as driver

16. To pursue the appellant as driver, the operator must prove, on the balance of probability, that they were in fact the driver.  There is no presumption in law that the keeper is also the driver.  If there was such a presumption, it would not have been necessary for Parliament to enact POFA.

17. It has in the past been suggested that the criminal law case of Elliott v Loake (1983 Crim LR 36) is authority for a presumption that the keeper in civil parking contract cases is also the driver. However, that theory has long been discredited. Elliott v Loake merely decided that, in a criminal case, where there is compelling evidence that the defendant has lied about various aspects of the case, the fact the defendant is the registered keeper can be taken into account when determining whether the defendant was also lying about who was driving.

18. The correct legal position in civil law parking contract cases is that there is no such presumption, as is explained in the following judgments:

VCS v Edward (2023);

Vehicle Control Services Limited v Quayle (2017); and

Excel v Lamoureux (2016).

 

19. VCS v Edward is particularly persuasive because it is an appeal decision.  HHJ Gargan explained the law as follows:

"34… the evidential effect of establishing that the defendant was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the defendant was driving on this particular occasion. Therefore, there is no material inference for the defendant to rebut. As there was nothing for him to rebut, it does not seem to me to be right to draw an adverse inference from his failure to engage in seeking to rebut it. Therefore, I find that the learned district judge fell into error in making the finding she did."

35.​ I am fortified in my decision for three other reasons:

35.1​ the finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established. If this were not the case car parking companies could have simply … obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper identify the driver, or at least set out a positive case in order toavoid responsibility himself. In my judgment that was not the position before the Protection [of] Freedoms Act was in force;

35.2​ my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and

35.3​ it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on balance of probability they were driving on this occasion, because one simply cannot tell. For example, there will be companies who are registered keepers of vehicles where many drivers have the use of the vehicle from time to time. There will be individual employers are the registered keeper but who allow a number of people who may drive their vehicles. There may be situations where husband and wife are each registered keepers of their respective vehicles but for some reason drive the other. Or there may be situations where husband/wife is the registered keeper of both family cars and the registered keeper regularly drives one car and their spouse regularly drives the other. These are all possibilities which show that it is not appropriate to draw an inference that, on balance of probability, the registered keeper was driving on any given occasion."

 

20. In Vehicle Control Services Limited v Quayle, Deputy District Judge Gourley (as she then was) stated:

"6. Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle … was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively they were the registered keeper at the time.

7. I disagree… even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that they were actually the driver at the time of the incurrence of the parking charge."

 21. In Excel v Lamoureux, District Judge Skalskyj-Reynolds ruled (at paragraph 7) that ‘there is no presumption in law that the registered keeper of a vehicle is the driver’, going on to state:

"16. So Unfortunately, I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on the assumption that he is the driver…

17. Unfortunately, therefore it seems to me that it is the claim that is misconceived not the defence, and I will be dismissing the claim because there is no proof that this registered keeper was the driver."

 22. The approach of the judiciary to this question is echoed at the POPLA service whose then lead adjudicator and current London Traffic and Environment adjudicator, barrister Henry Michael Greenslade, stated as follows in the foreword to his annual report for 2015:

"There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under [POFA]  to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time."

23. It has also in the past been suggested that the case of Combined Parking Solutions v AVH Films ([2015] EWCA Civ 1453) is authority for a presumption that the driver in civil parking contract cases enters into the parking contract as agent for the registered keeper. However, that theory has also long been discredited.

 24. The agency presumption was examined and rejected in the appeal case of Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E (Appeal ref M17X062) where Circuit Judge Smith stated:

"4… [Combined Parking Solutions v AVH Films] established no new principle.  It was clearly and on its face decided on the specific facts of that case which involved the defendant being a company rather than an individual and it was also a very short judgment of a single Lord Justice.  Therefore, it is not a judgment which should have been cited …

13. In my judgment the claimant … who bear the burden of proof, have not satisfied me on the balance of probabilities either, firstly, that the contract was made on behalf of [the keeper], secondly that it was in the scope of [the driver’s] actual or implied authority to do so, or thirdly that she intended to act on his behalf."

25. Therefore, the operator cannot hold the appellant liable as driver.

Conclusions

26. The operator chose not to use the provisions of POFA to hold the appellant liable as keeper and is unable now to do so because it did not deliver a POFA-compliant NTK within the relevant period, which has ended.

27. The operator’s decision to pursue the appellant ‘on the assumption’ that they were the driver was a fatal mistake.  There is no presumption in law that the keeper of a vehicle was its driver on any particular occasion and the operator has not discharged its burden of proving that the appellant was the driver on this occasion.

28. IAS adjudicators must apply the law and cannot consider mistakes or extenuating circumstances.

29. Therefore, the appeal must succeed.

Coupon-mad

Not that it hugely helps you because you can't copy & paste into the IAS box!

marina007

Thanks Coupon-mad for quick response! can I please seek your advice here? Upon checking my PCN  with the driver, they told me that there were not sufficient signage at the entrance of the car park (Stanborough car park)! we visited the car park another day and took a few photos, no sign at the entrance of the car park and the actual parking sign was not put up high enough which meant it could be easily hidden by a Van/large car and we think that was the reason the driver didn't notice the sign at the time.

Do you think I should mention this along side of the above appeal (failing POFA paragraph 9(2)(f)) as the above thread argues that 'I' as a keeper am not liable to pay but 'poor signage argument' may suggest I was the driver!

Appreciate your help help please! 
many thanks

Coupon-mad

Yes you could add that without implying who was driving.  Don't expect to win at IAS though.

marina007

Hello again!
so I submitted the following appeal as the keeper to Gemini last week:

On 11/04/24 you issued me with a PCN (xxx) which required me to pay what is referred to within the ticket as a fine (Parking charge notice). The Parking Charge Notice is disputed. The notice to keeper is not valid in accordance with Protection of Freedoms ACT 2012 paragraph 9(2)(f) because
i) The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) The creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
 
"Please be warned : that if, after the period of 28 days beginning with the day after that on which the Notice is given (i) the amount of the unpaid parking Charge specified in this Notice has not been paid in full, and (ii) we do not know both the name of the driver and a current address for service for the driver, we will recover from you, the keeper, on assumption that you were the driver, so much of the parking charge as remained unpaid. This notice is deemed to have been given to you on the second working day after the Date of Sending above”
 You have chosen to pursue the appellant on the ’assumption’ that they were the driver instead of pursuing them as keeper under POFA.
 As a result of the above, you have not complied with your obligations under the Act and it is claimed that the notice served is invalid and I am under no obligation to pay any charges to you!

a) POFA paragraph 9(2)(f) states that a NTK must: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

you have chosen not to avail yourself of the opportunity to hold the keeper liable under POFA. Instead of issuing a NTK containing the warning required by POFA paragraph 9(2)(f), the operator’s notice included the following warning:

To add to the above, there is no sign at the entrance of the Stanborough Park South Side Car Park which is facing the lake next to the Terranova Restaurant. The actual parking sign is not at a dominant location and is not put up high enough and can be easily conceleaed by a Van/large car. I have enclosed the following evidences to demonstrate my claim: a photo of the entrance to the car park. It shows clearly that there is no sign about the parking charges. On the basis that there are not sufficient signages at the Stanborough Park South Side Car Park facing the lake next to the Terranova Restaurant and the fact that Gemini did not deliver a POFA-compliant NTK I do not feel it necessary to provide the contact details for service of the driver on the day of the alleged contravention.

Yours faithfully,

Yesterday i received the following response from them! 

it seems they want to fish out the details of the driver even with option 2! how best do you think i should respond to them please? i thought that i might be able to ignore them and appeal to IAS directly but not sure if my appeal would be accepted by IAS as according to Gemini my appeal didnt go through as it wasnt raised by the driver and i have no appeal number to put forward to IAS saying that my gemini appeal was rejected!
would appreciate your thoughts here!
many thanks

KeithP

I am beginning to wonder whose thread this is?

Are we discussing the parking incident described by @parkinguhoh, or has this thread been taken over by @marina007?

Gr1pr

 Think marina should be posting on their own separate thread , especially as it mentions APCOA and not Gemini 

One topic per thread is standard practice, no mix and match