Parking Charge NtK from Gemini Parking Solutions

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Forgot to include this section from another thread (this situation was similar to that):

1.The charges are penalties.




The charges are represented as a failure to pay which is disputed. The driver on the day had paid for parking although the machine malfunctioned and did not accept all the coins and produced a ticket for less time than paid for. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for £10 for 24 hours. Neither is it commercially justified because it would make no sense to stop people visiting a hospital which could take longer due to unforeseen circumstances and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs.




I require Gemini Parking Solutions to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Gemini Parking Solutions cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.




According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated 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.''

[charitynjw]

Re: Parking Charge NtK from Gemini Parking Solutions

EDIT: For what it's worth, there was no notice put on the car at the time.

Under 'Keeper liability' in your appeal you make reference to PoFA 2012 Schedule 4 ss 7 & 8.
s7 is for Notice to Driver. (Windscreen PCN).
S8 is for the postal Notice to Keeper following the Notice to Driver.

You need s9
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4

so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court.

It already has been....in Nov 2015.
https://www.supremecourt.uk/cases/do...0-judgment.pdf
M1's thread (which you quote above, post #13) was June 2015.

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Thank you. I appealed on Sunday and I've seen that Gemini Parking Solutions uploaded their evidence against my case. I had 7 days (5 days as of today) to provide comments on that evidence.

Is this normal practice, in general? Can such comments sway a case either way? If any further information is needed, I can provide that.

[Usiaw]

Re: Parking Charge NtK from Gemini Parking Solutions

Here is their response to my appeal (without the attachments) (NOTE: the appeal made was very similar to the one posted above, taking into account charitynjw's comments, for clarification):

Operator Case Summary:

A Parking Charge Notice (PCN) was issued to vehicle registration LICENCE PLATE REMOVED on the 21/11/2017 at the location Chase Farm Hospital, The Ridgeway, Enfield, Middlesex EN2 8JL for the contravention “Failure to Pay for the Duration of Stay”. On the date of contravention, there was no payment allocated towards the above vehicle registration. This indicates that 1 hour and 24 minutes of motorist`s stay remains unpaid for, hence the PCN was issued. I have noted appellant`s comments on the contract. Please, see the client agreement that proves that Gemini is authorised by the client to enforce the site regulations and issue Parking Charge Notices to vehicles that are not authorised or not parked in accordance with the terms and conditions of the site. In regards to appellant`s comments on the signage, please see the site images file. I am satisfied that there is a clearly displayed signage at the entrance and throughout the car park advising on the site regulations and parking restrictions in place. In regards to appellant`s point 3., again, please see the client agreement. In regards to appellant`s point nr. 4, I can confirm that the Parking Charge Notice invites the registered keeper to supply driver details. If after 28 days we have not received full payment or driver details, the registered keeper becomes liable for the charge. I can confirm that the registered keeper becomes liable only after 28 days of the Notice to Keeper date. Please, see a screen shot of our internal payment system paytopark. This proves that on the date of contravention, there was no payment allocated towards the above vehicle registration. By failing to pay for parking, the vehicle was parked in breach of the terms and conditions of the site and I am satisfied that the PCN was issued correctly. Unfortunately, I am unable to take the mitigating circumstances into account. As stated in the appeal, the driver was genuine customer / patient of the Urgent Care Centre. The registered keeper is aware of whom the driver is and we therefore, once again, invite the registered keeper to supply the driver details. The above location is private property and is managed by Gemini Parking Solutions London Ltd on behalf of the land owner. Motorist has parked within restricted area 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 therefore the motorist’s responsibility to ensure that he or she abides by the conditions of parking at all times. As displayed within the signage by staying at the location, the motorist accepted all of the prevailing terms and conditions of the parking contract including the charges for the breach of that contract. These signs offer the parking contract to the motorist and sets out the terms and conditions of the parking and upon which by remaining at the location, the motorist has agreed to be bound by these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached. Gemini Parking Solutions fully complies with the guidelines set by that of the British Parking Association who are the regulating body for the parking industry. With regards to appellant`s comments about the parking charge amount claim and loss, I refer to the judgment of the Court of Appeal in ParkingEye Limited v Beavis: Key points: 1 The parking charge (£85, reduced to £50 if paid within 14 days) was considered to be a deterrent to overstaying, but the intention to deter was not sufficient to invalid the term of the contract with the driver (or licence – there is some discussion in the judgment that it might be a licence or a contract). In order to invalidate the contract (or licence) the parking charge would have to be extravagant and unconscionable and the charge made in this case was considered to be fine. The Judges did not say what amount of parking charge would be extravagant and unconscionable (and therefore not enforceable); 2 The parking charge made in this case was not a penalty, and the issue of genuine pre-estimate of loss is not relevant; 3 There is no need to graduate the amount of a parking charge after an initial free period of parking has expired; 4 Local authorities make similar parking charges and there is no reason why the private parking industry can’t; 5 A parking charge is an acceptable way to encourage turnover in car parks and to prevent motorists from leaving their cars for extended periods of time; 6 Parliament has supported (via the Protection of Freedoms Act) that such parking charges could be made so long as they are brought to the attention of the motorists at the time of use of a car park; and 7 The Court has granted permission to appeal to the Supreme Court, but Mr Beavis may not wish to do so given that the judgment is so strongly in favour of the parking industry. Should you wish to read the full script, you can do so using the following link: http://www.britishparking.co.uk/News...zLmNvbQ%3d%3dc As stated in point 2 of the judgment, the Parking Charge is not a penalty and the issue of genuine pre-estimate of loss is irrelevant. We find that, by failing to comply with the site regulations, the motorist became liable for a parking charge notice, in accordance with the terms of parking displayed and we are satisfied that this charge has been issued correctly.

[Usiaw]

To update you, my Appeal was allowed as the operator did not issue the Parking Charge Notice correctly (they did not demonstrate strict compliance with the PoFA 2012).

Thank you for your help.