Quick question! Please help!! Gemini Parking Solution PCN

Hi everyone! here i am back with my draft for popla appeal! hope i got it right as i had where to inspire from as there was a recent post here on 21st of august. many thanks to all of you! So , this is it:

Vehicle Registration Number xxxxxxxx
PCN Reference xxxxxxxxxxx
Issued by: Gemini Parking Solutions

Dear POPLA Adjudicator,
As the registered keeper of the above vehicle, I wish to appeal the parking charge notice Gemini Parking Solutions issued against it. I would like to have the parking charge notice cancelled based on the following grounds:


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

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

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

5. Absent any contract, only the landowner could claim nominal damages for trespass


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


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

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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 Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

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

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

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

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

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

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

5. Absent any contract, only the landowner could claim nominal damages for trespass

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate sum that a landowner (only) could seek would be damages. As there was no damage to the car park there was no loss at all and therefore there should be no charge; any charge at all could only be nominal - to cover actual loss. Charges cannot be issued under the tort of trespass by a third party with no title in the land (this was confirmed in the Beavis decision).
I do point out that a payment has been made for the whole period of parking session via RINGO instructions for which i will attach proof in form of a bank statement detailing the transaction with the fee amount paid and the company name and date that the payment has been taken.

I have made my detailed submission to show how the applicable law (POFA), case law (Beavis) and the BPA Code of Practice undoubtedly supports my appeal, which I submit should now be determined in my favour.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours sincerely,

Registered Keeper


PLEASE LET ME KNOW IF ANYTHING WOULD NEED TO BE CORRECTED AND HOW SHOULD I UPLOAD TO POPLA THE PICTURE WITH THE PAYMENT? UNDER THE =OTHER= SECTION WHERE I WILL UPLOAD THE PDF APPEAL LETTER? ALSO , IF THE RESPONS FROM GEMINI CAME ON 2ND OF AUGUST ,WHENT SHOULD BE THE LAST DAY TO SEND MY APPEAL TO POPLA? I HAVE MADE MY APPEAL ON ,, NO NTK BEEN SERVED AT ALL,, AS SO FARE NOTHING CAME AND TODAY 27TH OF AUGUST ARE 58 DAYS SINCE I GOT THE PCN ON 1ST OF JULY AND I HAVE INCLUDED 1ST IN THE COUNTING TOO. I KNOW IT SHOULD COME IN MAXIMUM 56 DAYS THE NTK TROUGH POST .EITHER WAY ,IT IS LESS LIKELY TO ARRIVE THESE DAYS AND IT IS TOO LATE ANYWAY! FROM THE NEXT DAY OF RESPONS FROM GEMINI WHICH WAS 2ND OF AUGUST I HAVE 28 DAYS TO APPEAL TO POPLA SO I THINK MY DEADLINE WOULD BE 30TH OF AUGUST.AM I RIGHT ON THIS? JUST TO MAKE SURE I WILL NOT MISS THE DEADLINE. THANKS FOR ALL YOUR TIME AND HELP AND HOPE SOMEONE WILL GET BACK TO ME SOON.

KIND REGARDS EVERYONE.

Great! Thank you Coupon Mad for all the help and your time speny on this forum for people like us!👏👏👏👍👍👍 i will make it ready tomorrow afternoon and upload it. I am quite confident after reading similar cases that it should be succesfull. I will let you know the outcome later on! Have a good evening and enjoy the bank holiday!

I am stuck again. Just finished sending the appeal to popla site! Now i have another problem! I just got in my hands by pure chance a pcn that came trough post dated 26th of july , but it came to a previouse adress that we moved out 6months ago. It is from Parking eye and it is for overstaying in a aldi carpark on 21st of july for 1h on top of 1h and 30 min allowed. I had no idea that there is a camera and there was only 1.30h max staying time. What should i do now? Because i am out of apeall to them time of 28 days and not sure where to start and with what exacltly? I know i should send them a letter or email instead calling but what to say to them? That i live at a different address for 6 months and that is the reason i did not know about this pcn and to consider giving me the opotunity to appeal? First question is do i have grounds of appeal for overstaying by 1h? I did shopped in aldi as it was last day of school and getting ready to go on hols so lots of shopping . I paid cash so can,t prove the shopping as i don,t have the receipt anymore. Any advice please??:(

HI GUYS! I HAVE GOT AN EMAIL FROM POPLA THAT GEMINI HAS UPLOADED EVIDENCE PACK AND NEED TO SUBMIT COMMENTS IN 7 DAYS.2 DAYS GONE NOW,SO PLEASE TELL ME WHAT SHOULD I COMMENT OVER THEIR LETTER. THIS IS WHAT THEY SAID,AND PUTTED PHOTOS OF SIGNAGE WHICH SHOWS THAT THE WRITING IS VERY SMALL BUT IT IS PRESENT,AND ALSO EVIDENCE THAT RINGO SHOWS NO PAYMENT RECEIVED FOR THAT NO PLATE.(PAYMENT MADE BUT IT WENT FOR PREVIOUS CAR REGISTERED INSTEAD OF THIS ONE THAT GOT THE TICKET). I WILL COPY PAST THEIR COMMENTS AND PLEASED LET ME KNOW IF YOU NEED ANYTHING ELSE AND WHAT SHOULD I HOLD ON TO?

A Parking Charge Notice (PCN) was issued to the driver of vehicle registration XXXXX on the 01/07/2017 at the location XXXXXX for the contravention “No Ticket”.

We have noted the appellant’s comments that a NTK was never served therefore any keeper liability can not apply. The appellant has also mentioned that who the operator is pursing is not liable and there is no evidence of landowner’s authority. The appellant has stated that the signage is not prominent.

In regards to the appellant’s comments we can confirm that the PCN was issued correctly to the above vehicle and the appellant had appealed the PCN before the NTK reminder was issued. We can confirm that in regards to the appellant’s comments about the NTK does not apply as Gemini had received an appeal on the 27.07.17- (26 days after the PCN was issued). Gemini can also confirm that we have full permission to act on behalf of the landowner to provide parking enforcement solutions.

In regards to the appellant’s comments about the signage not being prominent, the above vehicle was parked directly near a sign advising of the site terms and conditions and how a payment can be made for the stay.

We can confirm that an Enforcement Officer observed the above vehicle and we can confirm no valid pay by phone payment was made at the time of contravention. It stipulates within the site terms and conditions displayed that all motorists must pay by phone in order to park; a valid phone payment must be made in order to comply with the set terms.

We can confirm that the there was no valid pay by phone session made for the above vehicle. (Please see below for Ringo evidence). It is the motorist responsibility to ensure a valid payment has been made before they leave their vehicle to carry on with their day.

The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. In this instance, the driver parked within a restricted area on land which is owned by our client. 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 motorist’s responsibility to ensure that 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 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.


WHAT DO THEY MEAN HERE??>
In regards to the appellant’s comments we can confirm that the PCN was issued correctly to the above vehicle and the appellant had appealed the PCN before the NTK reminder was issued. We can confirm that in regards to the appellant’s comments about the NTK does not apply as Gemini had received an appeal on the 27.07.17- (26 days after the PCN was issued).

THEY SHOULD HAVE SEND AN NTK TOO IN 56 DAYS TROUGH POST APART FROM THE PCN PUTTED IN THE CAR WINDOW TO SHOW THAT THEY ARE REQUESTING THE REGISTERED KEEPER THAT IT IS LIABLE FOR THIS PCN RIGHT???

ALSO:
Gemini can also confirm that we have full permission to act on behalf of the landowner to provide parking enforcement solutions.

THEY HAVE UPLOADED AN AGREEMENT WITH EST VILLAGE MANAGEMENT LIMITED WHICH HAS A FEW PARAGRAPHS COVERED BY A BLACK LINE. IS THIS LAND OWNER PERMISSION AS IT DOES NOT STATE ANYWHERE THAT THEY ARE LAND OWNERS BUT THE MANAGEMENT COMPANY PLUS THIS AGREEMENT DOES NOT HAVE A SIGNATURE FROM ETHER PARTIES BUT ONLY A BLANK SPACE LEFT WHERE SIGNATURES SHOULD BE.

ALSO THEY HAVE UPLOADED TWICE SOME OF THEIR EVIDENCE. IS THAT OK? OR IS IT A TRICK TO MAKE IT LOOK MORE STUFFED??

DID I RAISED SOME POINTS THAT I CAN USE TO POINT OUT TO POPLA?

ABOUT SIGNAGE? AS IT IS CLEARLY VERY SMALL LETTERING AND THE CHARGE OF 100 POUNDS OR 60 AR WRITTEN AS ALL OTHER WORDS IN SMALL LETTERS.

I DID LOOKED FOR REBUT BUT ONLY FOUND THE OLD ONES ON THE BOARD SO COULD SOMEONE GIVE ME A LINK MAYBE TO POINT OUT A NEWER REBUTTALS?
I WOULD LIKE TO UPLOAD THE PACK FOR YOU TO SEE IT BUT NOT SURE HOW. I DID TRIED ON TINYPIC BUT IT SAID INVALID FORMAT I THINK? PLEASE ADVISE ME WHAT SHOULD I SAY. I KNOW I SHOULD DO A NEW PDF LETTER AND EMAIL IT TO POPLA,NOT NECESSARY RIGHT MY COMMENTS IN THEIR SPACE . ANY ADVISE WILL BE MORE THAN WELCOMED.


THANKS.

Great! Should i mention anything in regards to their evidence obtained from ringo that there was no payment made for the reg no in cause? Should I mentiin again that I have provided evidence of the payment being taken from the acount on that day by Gemini so the problem should rest with them now to sort it out and see what happened? I will make it as a short letter putting together all these comments with paragraphs to refer too and will post it here again hopfully tomorrow evening if my little ones would give me some time:o , so you could check again and give me the thumbs up:p. Thank you so much Coupon Mad!!!:beer::T