I have a question....

Would "blocking in" and seeking a release fee constitute immobilisation without lawful authority ?

 

Doesn't seem to have been discussed anywhere..

Blocking in to demand a payment is unlawful, however blocking in and going on Holliday, would prove more difficult for the police to charge you with an offence, as if the land was in your possession, what would the charge be, it's ludercrious.

Offence of immobilising etc. vehicles

 

(1)A person commits an offence who, without lawful authority—

 

(a)immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or

 

(b)moves, or restricts the movement of, such a vehicle by any means,

 

intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.

Removing a vehicle is still available using distress damage feasant. The vehicle should be causing damage, however as trespass is actionable without the need to prove damage, this option is still available to a landowner.

Distress damage feasant is a medieval remedy which as it is no longer available for use against animals, it can now only be open inanimate objects.

Although the remedy use is no longer a basis to clamp, it's use to stop damage is lawfull.

So it would be the land owner who has a cost to recover? I think trying to demonstrate real losses against contrived losses or going to be very difficult and expensive to orive

The loss would not be contrived, if the landowner was invoiced for the service, it is a real loss, not a sham, if the landowner takes his responsibilities for his land seriously, they would be prepared to protect against the trespass and a simple claim for trespass, would be a nessessary slight inconvenience, for serious people.

Two posts unapproved....Let's keep it civil please

Sorry

On the question of what is a genuine "pre-estimate of loss" , this was received by a poster on another forum:-

 

"The OFT expressed the view to the BPA that when claiming liquidated damages, they must meet the requirement of being a genuine pre-estimate of loss. If back office functions are claimed, these must be directly caused by the breaches of contract. The OFT's view was that, if you have an office anyway and have to pay rent, rates, insurance, etc. this cannot be attributed to the breach and claimed as costs, as these are costs of running a parking management company. To be recoverable, all costs, whether in contract or tort, must be caused by the breach."

 

So in reality most PPCs would be stuffed as there wouldn't be enough money from "parking charge notices" to make a profit, especially as they usually offer their services for free to the landowner.

The answer is charge the landowner for the services and issue of the notices, this would create a damage to the landowner this would stuff the trespasser as they would have no alternative other than to pay the charge and place the landowners in the same position before the tort occurred, simple rearly.

Old Snowy

Ok it might be the same question in a round about way, however previously there was a slightly different slarnt on it if you remember, what is the answer ?. I think the Court will not be able to give the trespasser a layer of protection from a claim, if the damage to the landowner is real and quantifiable. This will also put a spanner in the works for all the soap box heros who think that damage for trespass is only nominal, shame, who needs to protect land by unenforciable penalty based contracts, issuing pointless (penalty) sorry parking charge notices, when tort is on your side hey.

I know you were not infering the DVLA would not supply the details to a landowner, I just wanted to bring up the issue of reasonable cause, which if the PPC is paid for the issue of notices or services to the landowner, it would not be the PPC making the enquiry for the loss, it would be the landowner for their damage via a civil claim against the trespasser. it will be very interesting to see if the DVLA and Courts will be able to stop landowners from protecting their land, I very much doubt it. By the way did you find out if Andy ever paid his charge, I think he must of when I visited Felixstowe last week to deliver a load I am sure I saw one of his trucks on the estate, he obviously did not take the advise and ignore ignore ignore.

I have previously argued that the type (and size) of payments from PPC's to landlords should more accurately be described as a royalty. The PPC is, in effect, making a payment to secure continued use of the landlord's asset - the car park - and such payments represent a percentage of the PPC's take. What else is that sort of payment if it isn't a royalty? The going rate seems to be of the order of £10 per collected (i.e. paid) invoice.

 

As for non-leaseholding PPC's obtaining DVLA data it seems that that Swansea are satisfied if there is evidence of a contract in place between the PPC and landlord. The VCS judgment has been put to the DVLA but they appear to take the position that this does not materially affect the "reasonable cause" argument although, I for one, am damned if I understand their reasoning.

Hi Old Snowy

The reason the DVLA will continue to give information to the owner of land is they are not a PPC, and if the landowner were refused access to that informtion, the DVLA would no only be depriving the landowner from being able to have a remedy against interference of their land, the DVLA are edgy about litigation from powerful landowners who want to retain control over their land.

Another interesting subject i wanted to discuss with you again is the issue of damage. Let me ask you your thoughts about this sinaro, if the landowner paid the PCC For their actions carried out against the trespasser, and the contract between the PCC and the landowner was clear the landowner would suffer a loss under this contract, if is was not a sham and the paper trail was clear, would this not be genuine quantifiable damage which could be recovered at Court ?.

You say you "know about these things", so just tell usl about your legal training and experience so we can all bow to your superior knowledge. On the other hand, if you are just making this up as you go along, we will know we won't have to believe a word you utter. It's as simple as that.

Ok you got me ime making it up as I go along, one can only hope, why don't you look it up for yourself, or work it out for yourself, looking at the subject locically should surely make you realise you will never have the upper hand with another's private property, there is to much protection against abuse, which you will never be able to defend. I suppose you could try it out and see what happens, you will though without a doubt be up against it.

Showing your true colours indeed now.

 

All we are waiting for now is the old chestnut about 'how would you like it if someone parked on your drive?' Go on, let's have a laugh..

Coupon

I am not going to get dragged into the old chestnut senario. I have joined to debate this subject, as yet I have not recieved any information to prove me wrong, Old Snowy has been a good source of debate, however the problem is the landowner will always have the right to protect his property from use of abuse. The hurdles that a trespasser will face in the future, as they have faced since the 13th century is, Courts will and must give the labndowner protection form interference to heir property, as without a remedy against a trespasser people will be given licence to abuse.

Of course I would not like another to park on my property, as I am sure the same would be for you. The issue is people with respect do not park on anothers property, respect is what all of us expect from another, surely respect to another, is what this forum is designed to achieve.

I have not attempted to debate on the rights of people, who trespass by mistake, trespass to another in relation to land is a touchy subject, as we all want to park where it is convenient or cheap, but conveniance and cost effectiveness is not necessarily lawfull, the old chestnut you take a chance, LOL

No , it was yet another stupid answer from you.

Ohhh, now now, touchy touchy, stupidity is a way someone shows their true colours, like when they get caught get caught with their trousers down, or parked on another's property without permission.

Was it the shirt that put you off a decent reply, or just the fact there is no reply, and substance to you arguement

really

Old Snowy,

This is not a damage to the security company, it is a damage to the landowner he can prove the damage that has occured by the action of trespass, which was warned to the trespasser before he commited the tort, no argument, that is fact.

If the landowner is VAT registered, and the trespassr remits the sum before the hearing he is areeeing to pay an out of Court settlement, he will be able to claim the VAT, of course you know at a hearing this will not be the case.

In a nut shell Yes, even if you wanted them to hop across your land while wearing the shirt, if that is your conndition of use land why not ?

You must remember if you work on a building site you are required to wear high vis, and you fail to do so, although it is not a trespass it is a condition that you must adhere to, and although it not a trespass it is against the law not to, the same as trespass.

THERE IS ALMOST NO DEFENCE AGAINST TRESPASS, one can also accidentally trespass, that Is the landowners power and protection as the master of his land, the laws have been tested and tested, but one thing is for sure you will be up against it, if you take him on.

So what are you. A PPC stooge, a lawyer or law student and why did you specifically join this forum to comment on this issue?

 

Regarding the loss. It has to be a true loss , not some figure plucked out of thin air.

It is a true loss, what does it matter what I am, I thought you needed debate on this subject, what are you. I have knowledge of this subject, and if you commit trespass you will have almost no defence without authority. All figures are plucjked out of the air like unenforceable parking Notiice fees, which are contract penalties. What i am trying to tell you is private property is not yours or mine to give authority to trespass on, if a landowner does not want you to trespass and he can show the Court why that is you dont stand a hope.

But what is the actual loss? Not some hypothetical figure.

 

Could I ask you Spec1 what are your motives for registering on this forum and posting here. Are you connected to any private parking company, are you a lawyer or law student or are you just reading all this in books?

Please read my posts again, you do not have to prove loss in an action for trespass, the loss to the landowner is posted on the sign, this is what he will have to pay the company for issuing the notice,

I can not see why a Court would have a problem in awarding this loss to the landowner, as he has to be placed in the same position before the tort of trespass occurred. My motives are simple I am trying to point out you can continually attempt to talk about a subject where there are objections to actions, however if your action creates a damage in trespass which you have recieved clear warning not to do, it is an almost impossible to defend, that is where the problem lies,.

This is getting a bit silly now. A plaintiff has a general duty to take reasonable steps to minimise his losses - you can't claim for losses which you could easily have avoided. You don't minimise your losses by agreeing to pay a shyster a fee every time someone trespasses on your land, then claiming that the fee was a loss which is somehow the trespasser's fault.

Why not ? It is the trespassers fault, if he did not act outside the permission he would not get the notice, I don't know what you mean how could the landowner avoid the loss, the trespasser causes the loss through their action., the landowner is mitigating the loss by warning, his need to do this is to stop the impending loss to himself.

I'm afraid that you'd suggested in your previous post that the trespasser would be liable for damages that is made up of the charges due as a result of the contract that exists between the landowner and the security company.

 

I was not in anyway seeking to put forward the suggestion that there was a need to prove a risk of damage, inconvenience or obstruction. My question was straightforward:

 

 

 

And this is now the third time that I have posed it. What steps apart from erecting signs and using the CCTV camera to monitor the activities of the alleged trespasser has the landowner or his agent taken to reduce their loss? Was a security guard dispatched to stop the trespass and reduce any damage? A landowner is indeed the master of his land but he has a duty to reduce his losses.

 

As has been repeatedly said, if the damage cannot be quantified - a business expense is not and cannot form part of the damages - then whilst an action may succeed any order for damages is going to be of a nominal nature.

Old Snowy, I apologise. If a location is saturated with warning signs, accompanied by double yellow lines, althought meaningless on private land, if it is clear trespass is not accepted, this as I see it this is enough of a deterrent, and warning as to the condition of use of the land, that is expected by the landowner. Trespass ab initio the common law doctrine, if a person enters land lawfully then does an act (ignores the warning signs) inconsistent with his rights , then the entry is deemed unlawful from the beginning, despite his lawful entry. As you will know there is very limited defence against a trespass, when the condition of warning is met. In relation to the need to prove damage for trespass this is not the case, in an action for trespass no damages need to be proved, sufficient damage can be shown by the impending threat of loss, even if that loss is not imminant. As I see it I relation to the charge for a tortefessors actions by not adhering to the warning signs, when a landowner needs to have a remedy against it, is if there is a cost to the landowner to pervent the impending threat of loss, for the service to issue the notice this will be accepted by a Court as a damage. Public roads do not nessarily have commercial ecomonic consequences when somebody parks where they are not permitted, private locations do however, and impending loss, will always be the answer to a claim, and by protecting the masters property by warning somebody not to carry out an act he is mitigating HIS possible loss.

Three simple questions: A tortfeasor is only responsible for the losses he caused. So, were the security company there before he arrived? Will they continue to be there after he leaves? Were the security company employed for a variety of purposes? The answer to each of these is "Yes" which demonstrates that the costs incurred by their employment is a business expense and cannot be apportioned arbitrarily to a single trespasser.

 

I repeat my earlier post. Aside from setting up notices what steps, in your scenario, has the landowner or his agent taken to prevent or reduce the trespass if the risk of damage, inconvenience or obstruction was so immediate that a charge has to be levied out of all proportion to the apparent damage?

 

As a third party to the contract between the landowner and his security company a trespasser cannot be held to its terms or be responsible in any respect for any payment that may fall due between the parties to that contract. I suggest you research the concept of privity of contract. If you are saying that the landowner (or his agent) is trying to recover his "potential" loss then there isn't any damage. In terms of trespass there is either a loss or there isn't. Potentialities don't enter into the equation.

 

I am struggling to understand what offer and consideration it is being suggested could form part of any contract in the scenario you are painting/repainting/repainting?

Old Snowy, Privity of contract, this has nothing to do with the tortfeasor commiting trespass, as the tort is not a contract he commits the Tort by his actions which creates a damage to the landowner. The contract between the landowner if the security company are only paid for the issue of the notice is payment for that specific action which if he remits to the securitry company and the tortfeasor does not pay the requested sum by the landowner, this will without doubt be his loss and damage. With regards trespasss there is no need to prove the risk of inconveniance or obstruction, the mater of interference is enough which is actionable, and if the landowner wants to stop interference, he has the right as the master of the land.

This is getting a bit silly now. A plaintiff has a general duty to take reasonable steps to minimise his losses - you can't claim for losses which you could easily have avoided. You don't minimise your losses by agreeing to pay a shyster a fee every time someone trespasses on your land, then claiming that the fee was a loss which is somehow the trespasser's fault.

A plaintiff might well have a duty to take reasonable steps to minimise his loss, however he also has the right to protect his property from trespassers, if he has warned clearly not to park then the person that commits the trot of trespass creates the damage to him by way of the contract with the security company, which he instructs to protect his property . If a persons entry was lawful, he then acts outside the permission of use of the land, they become a trespasser, his entry then becomes unlawful from the start. The fee is a loss if the landowner has to protect his property, as they could be open to damages from tenants for not keeping the roads and access clear. Of course the fee is the trespassers fault, as if he simply did not act outside permission of use there would be no need for the enforcement. Why can he not pay the shyster a fee in contract to minimise his potential loss from unhappy tenants, the question was can a fee in the contract due for the issue of the notice, become the landowners damage?

A loss explained : if when you parked someone had to write a cheque for £100 or open the cash box and pay out £100, that is a loss.

Anything else is a illegal penalty.

You can not "invent" losses or claim business expenses spent on the speculation someone might park on your land and you need security to stop them.

The charge is a bunch of well known [problem] artists trying it on, ignore them, ignore all the silly threats.

What if the company acting on behalf of the landowner was not paid for their services, but within their contract they invoiced the owner for each notice they issued, as it is the landowner that can only issue proceedings, if the matter went to Court with the landowner as the claimant the security companies fee would become a loss to the landowner and is then a loss to the landowner for the tort of trespass which he must be reimbursed for in the action ?

A contract must include an actual offer of consideration. "Even if you're not entitled to park" is a bit of a giveaway in this regard. If you say "You may not park here. If you do, you must pay £X", what offer, precisely, are you attempting to make? How can you simultaneously offer someone a parking space, and prohibit them from parking?

 

"You may park here for £X is potentially an offer of course, but it runs into problems if £X is actually a disguised penalty intended to deter parking, or if the landowner doesn't have the necessary planning permission to be running a commercial car park in the first place.

What if you give imlied consent to the issue of the charge, in same way you give implied consent to the issue of a clamp, which we all know has been taken out of the equasion, in the Protection of Freedoms Act with regards to issuing a clamp but not a charge. Schedule 4 of the protection of Freedoms Act gives the PCC the option to persue a claim for Tort or Contract, can they chace the fee if you give implied consent ?

Quoting Kruse is unlikely to win too many friends. His views are his own and do not necessarily accord with current case law though, of course, they find favour in certain quarters. His views - as far as distress damage feasant is concerned - are not unusual and to a greater or lesser degree meet with approval in other common law jurisidictions. Distress damage feasant may only be used to excuse or justify actions taken and has no other place in the legal setting. Anyone seeking to withhold or seize goods must be careful that their justification is sound as the seizure/withholding of any chattels constitutes a trespass to goods that is in itself actionable.

 

The fact remains, that if one is to initiate action against the driver of a lorry that fails to abide by the rules required to be adhered to on a private road, then the only option is by way of trespass. All that is recoverable in such a claim is damages and that cannot include any aspect of a charge intended as a deterrent as that automatically becomes a penalty. So how is one going to quantify inconvenience or obstruction, or the risk of such, if they did not occur.

 

If, as I have already been at pains to set out, a security company is employed to enforce the rules then they are there 24/7 (and for a variety of other purposes as well) and it would be iniquitous to expect a driver ajudged to have breached rules to be liable for a service that was present before he arrived and will continue to be there long after he leaves.

 

Commencing an action will necessarily imply that such was the risk of inconvenience, obstruction or damage and so immediate was the apprehension of it that CCTV cameras were employed to monitor it and an invoice was immediately issued. Any claimant, in such circumstances, is also going to have to demonstrate to a court what immediate steps were taken to remedy the situation such as dispatching a guard to direct the lorry to move on etc and if they are unable to then their claim will fail. See the recent case at Scun thorpe County Court where a case brought by a PPC was dismissed for just such inaction. Commencing an action in court is not an alternative to attempting to reduce one's loss oneself but may be used where one's efforts were unsuccessful or only partially successful.

 

The most glaring misunderstanding in your argument, Spec 1, is that the sole intention of a court action is to restore a claimant to the position they would have been in had the alleged tort not occurred. Had it not occurred, of course, the claimant would still have incurred the cost of the security company (the driver cannot be held responsible for the action of others) and attempting to pass those costs on is doomed to fail.

What would happen if the sign at the site stated If you park here you agree to enter into a contract with the landowner to pay the associated fees, even if you were not entitled to park ?

But what actual figure can they claim? They can't just pluck a figure out of the air.

If their contract for service charge was in the region of £500.000 per anamun, a reasonable sum to protect their interest in the land I would imagine, the signs at the premises would act as a deterrent if the figure was in the region of £200 but it would depend on what efforts were needed to protect the property. The issue here is that it is private property and if commercial business and landowners want to protect their interest in their land by warning users of their conditions of use all the user of the land has to do is resect their requests to avoid reproach.

But what's the actual (material) damage that has been caused? Give us a figure. Nobody was deprived use of the road, they were parked at the

 

If that estate has various occupants and the people who manage or own it, recieve service charges payment by way of contract with the tenants, and a part of their contract for services is to maintain access to the tenants properties, and simply they do not want people parking or waiting on the estate, they have the right to do want they want with their own property, by way of conditions of use. If therefore someone acts outside the permission of use, they can sue for a simple matter of possession and their need to protect their interest in that property that is damage it does not have to be physical.