In terms of the contravention, it might be the case that the driver is 'bang to rights' - on the face of it, they stayed for longer than the time allowed, and Gemini will argue that if the driver was unable to pay, whether due to app issues or not, he should have left within the 3 hour time period. That said, there doesn't seem to be a requirement to pay on entry, so an argument could potentially be made that the driver attempted to pay before leaving but was unable to due to matters outside his control - he therefore made payment as soon as possible and attempted to contact the payment provider to clarify the situation. It might not be the strongest argument.
The above aside, that does not mean they can hold the keeper liable. They do not make reference to being able to hold the keeper liable, other than to claim they will pursue them on the assumption they were the driver. This is because they know they have not complied with the requirements of
Schedule 4 of the Protection of Freedoms Act 2012 in order to recover the charge from the keeper.
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; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(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.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
Their notice was sent on Friday 29th September, so is presumed delivered Tuesday 3rd October, outside the 14 days allowed to hold the keeper liable.
You could appeal along the lines of the below, appealing as registered keeper:
Dear Sirs,
I have just received your Notice to Keeper _____ for vehicle registration mark _____.
You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 (PoFA) namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act.
Date of event: 17 September 2023
Date of Issue: 29 September 2023
Date of presumed service: 3 October 2023 (POFA para. 9(6) refers).
Elapsed period between event and giving of notice: 16 days.
The notice was clearly given 2 days outside of the relevant period of 14 days required for keeper liability as prescribed by PoFA. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.
There is no legal requirement to name the driver at the time and I will not be doing so. No assumptions can be drawn as to who was driving.
I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.
Yours etc
