Clamped on private land - no help from bank

[psion123]

New member here looking for suggestions please.

 

My partner was clamped on private land. She drove into a car park that was signed from the street with a conventional highway code parking direction sign. It was dark and raining. She parked her car and on return 3 hrs later it was clamped and it cost £350 to be released. Release fee plus tow truck charge plus credit card handling fee. Not forgetting the £1 per minute phone calls to the clampers office.

 

I took photgraphs of the signs from the street, and noted the lack of "Permit Holders Only" signs outside the car park. There are "clampers" signs in the car park, as I say it was dark, raining, unlit and she had the presumption she was parking in a public car park. The clampers signs do not look anything like a "higway code" advisory signs, so why would anyone look to read them? They could be advertising a night club or any other business.

 

It is a conventional pay car park until apparently 7.00 p.m. when it is handed over to a gang of clampers to practice their bullying and intimidation procedures.

 

To cut a long story short, we gathered all the evidence of "entrapment" and claimed a refund of the charges from the bank under Section 75 of the Consumer Credit Act 1974. The bank have agreed that there was effectively entrapment.

 

We claimed that payment of the exorbitant release fee was a breach of contract of the terms of the credit card because payment was made under threat, intimidation and duress.

 

The bank now claim there was no contract between my partner and the clamping company. QUOTE "In your case you were forced under duress and with no alternative to make a payment. With this in mind, there was no acceptance or intention to create a legal relationship present and as a consequence of this no contract existed". UNQUOTE

 

Therefore they say S75 dos not apply. Further, they go on to say that the misrepresentation aspect of the section cannot apply QUOTE "a valid claim for misrepresentation involves any statement made prior to entering into the conract that entices the customer into entering that specific contract" UNQUOTE.

 

I am obviously looking at county court action against the clampers, but there is the chance they have a better solicitor than me and we could potentially lose out to the tune of their costs.

 

Any advise please?

[Bernie_the_Bolt]

I reckon the Bank are saying that they have no liability because you were [edit] forced to pay under duress.

Is this a council car park normally?

Take photographs of the signs, showing the words and the signs in context of the car park.

Get details of the clampers, are they registered?

Unless I am mistaken, this would be a small claims track case in the county court and costs cannot be awarded either way.

[psion123]

It is a private car park, not council.

 

The Clampers themselves don't have to be registered, but the ticket had a current SIA licence number on it, but of course we don't actually know that the person who issued the ticket is who he says he is as they didn't openly display SIA badges and my partner was scared stiff of two burly thug. It wouldn't have helped one bit to ask to see their badges - even if she had thought of it in the intimidating situation she was in.

 

The SIA are particularly useless as if I ask them to take up the matter of identity, they will not let me know the outcome of any enquiry they make.

[Bernie_the_Bolt]

I reckon you have nothing to lose at this stage by issuing a claim through moneyclaimonline (after letter before action etc) other than the court fee.

 

If you get judgment, enforcing it may be tough. Does CCA help -particularly if you put in your claim unlawful penalty charges for breach of contract (ie establish there was a contract)?

[Bernie_the_Bolt]

It is a private car park, not council.

 

So what's the status of the sign on the (presumably) council street furniture. Was it put there by the council? does it have operating times on it? Is there another council car park it could refer to? etc

[psion123]

I am not sure if MCOL or going direct to County Court is a best bet. The situation is that we appealed using their standard procedure, which of course they rejected. However, if we use MCOL, I'm not clear if the matter comes down to was there or wasn't there a contract, or the level of additional charge (tow truck etc) is unreasonable, if MCOL can deal with it.

 

Also you ask

"So what's the status of the sign on the (presumably) council street furniture. Was it put there by the council? does it have operating times on it? Is there another council car park it could refer to? etc"

 

The sign looks just like a council (highway code style) sign. No other car park it could refer to. No operating times on street sign.

 

Like I say, there were signs in the car park - if you looked for them, but they didn't particularly look like anything. In the dark you would really have to go up and read them close up. Hardly likely to happen goiven the circumstances.

[Bernie_the_Bolt]

Also you ask

"So what's the status of the sign on the (presumably) council street furniture. Was it put there by the council? does it have operating times on it? Is there another council car park it could refer to? etc"

 

The sign looks just like a council (highway code style) sign. No other car park it could refer to. No operating times on street sign.

Worth asking the council if they have approved of/are aware of this piece of street furniture? If unapproved it all could add up to deception.

[psion123]

Worth asking the council if they have approved of/are aware of this piece of street furniture? If unapproved it all could add up to deception.

 

Don't forget, it is a regular car park during the day. So I don't think that will get me very far. It is just at night the clampers get free run of the place.

 

I've discussed with a friend who is a barrister (not practicing at the moment) and he thinks the defence should be the punitive release fee for the clamp. He asks, why is it not £15000? He thinks the clampers should have to justify the amount they charge, as it is merely to mitigate the trespass that was caused by parking there. In this case, there was no harm caused to the landowner. Had it been the last Saturday before Christmas, they could possibly calculate the amount of their loss, but in this case, there was no loss, there may technically have been a trespass, but the entrapment aspect would seem to take centre stage. The land owner, when they closed the car park could reasonably have fitted a chain, rope, barrier even placed a couple of road cones across the entrance indicating the car park was closed, but instead chose to employ a firm of charlatans and rogues to be their enforcers.

[Barnsley Boy]

This is baffling - are the credit card company saying that because there is no contract they cannot reimburse you the money and claim back the clampers - to paraphrase they seem to be saying that the more illegal something is, the less they can do. I would have thought that once the bank accepted the duress bit the rest should be a shoo-in

 

Found this template for writing to the credit card company from another forum - please feel free to amend as required.

 

[ADDRESS]

[TELEPHONE]

Dear [NAME]

Account: [ACCOUNT NUMBER]

I wish to dispute the charge made on my account on [DATE] by [COMPANY].

The payment was made in order to release a wheel clamp from my vehicle.

The reason I wish to be reimbursed is that the representative of [COMPANY] demanded the money with menace and there was no legal foundation for the charge.

I pointed out to the representative of [COMPANY] that under The Road Traffic Act 1991 my vehicle was parked legally but he declined to remove the wheel clamp before taking payment.

The Road Traffic Act 1991 states that a vehicle can only be clamped if the parking restriction notice(s) were located within “Three Car Lengths” of the vehicle and at a “reasonable height” to allow the owner to see them.

My vehicle was parked outside of these parameters when it was clamped, making the clamping of my vehicle and the charge illegal.

I have supplied the following supporting evidence to prove my claim:

1) [NUMBER] Photographs which show that my vehicle was clearly not within the aforementioned vicinity of the parking restriction sign.

2) A copy of my original notes which show the measurements I made at the scene. These show that [DELETE AS APPLICABLE] the sign was placed illegally / I was outside the vicinity of the restriction sign that legally warrants a wheel clamp being applied.

I kindly request that you apply a refund to my account and that you inform me by writing of your decision.

Yours faithfully

[accepted that clamping in private land is under case law not above statute but signage has to be "adequate" - requirements of Road Traffic act is a good starting point]

[psion123]

Thanks Barnsley Boy, but what I wrote to the ban was virtually the same. I quote from my letter

 

"I enclose for your attention and reconsideration of the matter, copies of correspondence between myself, and the Merchant [Clamping Company] Ltd. The actions of the merchant were a misrepresentation of the Laws of England. They were not entitled to clamp my vehicle in the first instance, and they were not entitled to act the way they did by failing to remove the clamp from my vehicle once I had reluctantly and under threat, menace and duress agreed to a charge to have my vehicle released. There was no lawful contract between [Clamping Company] and myself."

I started by setting my perception of the position in view of S75 Consumer Credit Act 1974. The bank replied as per my original post.

So, it seems that either there was a good contract - which they acknowledge was unlikely.

OR

The transaction was not legal and I would have expected protection as per theft.

But, the fact that my partner allowed the theft to take place (by giving the card details over the phone) is a lawful transaction as far as the Consumer Credit Act is interpreted it seems.

[Barnsley Boy]

Psion,

 

I'm fresh out of ideas, don't know what to say. It seems to defy logic

 

"But, the fact that my partner allowed the [edit] to take place (by giving the card details over the phone) is a lawful transaction as far as the Consumer Credit Act is interpreted it seems."

 

It was under DURESS

 

If you remove your wallet from your pocket and hand it to a mugger with a knife, are you allowing the theft to take place?

 

Similarly giving your card details to retrieve your car is not condoning the [edit]. We all know to our cost that the Police aren't interested "Civil Matter".

 

It is to be hoped that the guy at the bank simply got it wrong and his answer is not definative.

 

Threaten Banking Ombudsman?

 

Other than that it would seem that MCOL or County Court would be the only option left.

[lookinforinfo]

The bank is wrong. By your OH entering the carpark and leaving the car there, she entered into a contract with the clampers-albeit unwittingly. In a

Court of Law it would be accepted that there was a contract. What would be

unacceptable in Court would be the cost for the breach of contract for not

paying the permit cost. The most they could claim would be for loss of

the parking time-3 hours @ £1 an hour [?] which is a long way short of £350.

You might find banks not too keen on taking this on board though , as they have

similar problems themselves with breaches of contract [bank charges].

[Barnsley Boy]

Lookforinfo

 

You can't enter into a contract unwittingly - case law on clamping Vine / Waltham Forrest would bear this out.

[psion123]

Thanks Lookinforinfo. I'm still not sure there was a contract though. As I understand it, for a contract to exist, there must be an offer, consideration, acceptance and intent to create a legal relationship.

 

The fact that the car park looked to be a public car park, and that the signage in the street implied it was, led my partner to drive in. The fact that it ceases to be a public car park at certain times was not shown on the street signs. To see this, it would have been necessary to read the signs in the car park. Signs that were not in the expected "highway code" style and font. Not something that one is inclined to do on a dark and damp evening, when you don't think there is a problem anyway.

 

I feel inclined to do the County Court or MCOL thing, once I understand the risk in respect of possibly losing and costs.

[lookinforinfo]

Psion-read this thread to get a better angle on how to approach the bank again, and also how to strengthen your case against the clampers.

http://www.consumeractiongroup.co.uk/forum/parking-traffic-wardens/65341-private-parking-companies-charges.html

[Zamzara]

The ability to use the county court to recover a disputed clamping fee was established by Lloyd v DPP.

 

It sounds like you would have an excellent case due to the complex restrictions and inadequate signage, and the fact that the charge is excessive. It also sounds like they have unlawfully increased the release fee by adding a towing charge: any other fees they claim are a separate matter and they cannot continue to hold the vehicle ransom once the advertised release fee is offered (even assuming the clamping were legal).

[psion123]

Thanks Zamzara.

 

It makes me feel more enthusiastic about chasing this down. I've had another "pop" at the bank today, advising them that their reasons for not upholding S75 of the 1974 Act are wrong. I do not have to prove Misrepresentation AND Breach. Either is satisfactory. I feel confident I have proved misrepresentation.

 

You may like to know (if you didn't already) that the SIA are completely useless as far as the Consumer is concerned. I called them on their premium rate telephone number today (cost me over 6 Euro listening to a daft announcement and music on hold). I asked if I gave them evidence of a firm of clampers acting outside the terms of the licence they would help get the money back.

 

They told me they would take the matter up with the company concerned and may take action against them if proven. They would not help me get back money that was taken by the clampers. They would not tell me what action, if any, they took. Told me to go to court.

 

I challenged the guy on the logic of this i.e. I get them involved, they act and close down the clampers, I go to court and there is no one to take action against as the company is in receivership, or bankrupt as closed down by the SIA.

 

So the only "safe" course for me is to let them carry on what they are doing, and act against them after we've got our debt recovered. In the meantime they do the same to other people on a daily basis.

 

He pt the phone down on me.

[psion123]

Thanks Zamzara.

 

It makes me feel more enthusiastic about chasing this down. I've had another "pop" at the bank today, advising them that their reasons for not upholding S75 of the 1974 Act are wrong. I do not have to prove Misrepresentation AND Breach. Either is satisfactory. I feel confident I have proved misrepresentation.

 

You may like to know (if you didn't already) that the SIA are completely useless as far as the Consumer is concerned. I called them on their premium rate telephone number today (cost me over 6 Euro listening to a daft announcement and music on hold). I asked if I gave them evidence of a firm of clampers acting outside the terms of the licence they would help get the money back.

 

They told me they would take the matter up with the company concerned and may take action against them if proven. They would not help me get back money that was taken by the clampers. They would not tell me what action, if any, they took. Told me to go to court.

 

I challenged the guy on the logic of this i.e. I get them (SIA) involved, they act and close down the clampers, I go to court and there is no one to take action against as the clamping company is in receivership, or bankrupt as closed down by the SIA.

 

So the only "safe" course for me is to let them carry on what they are doing, and act against them after we've got our debt recovered. In the meantime they do the same to other people on a daily basis.

 

He put the phone down on me.

[psion123]

Sorry to keep this one going, but I would like some more advice please.

 

We got another letter from Clamping Co today. I can quote freely, as they did not send it "without prejudice".

 

There are a couple of statements that are patently rubbish, and one sentence that is very strange - as follows

 

"The signage within in this carpark has signs that are twice the legal size (the smallest signs) and signs that are four times the legal size".

 

Either English is not his first language, or maybe I've got him rattled!!

 

Now, I'm not aware of any legality about the size of signs in car parks. I'm sure it's not a legal thing. Or is this guy saying I am shouting twice as loud as someone else who got away with this nonsense, therefore, I made a contract with you because I say so?

 

Can anyone help please?

[Zamzara]

The bank now claim there was no contract between my partner and the clamping company. QUOTE "In your case you were forced under duress and with no alternative to make a payment. With this in mind, there was no acceptance or intention to create a legal relationship present and as a consequence of this no contract existed". UNQUOTE

 

I've only just taken this in, but wouldn't this mean that the entry on the credit card bill is void/unenforceable? They are admitting there is no basis for the bank to claim payment from you, since the bank is jointly liable.

 

(To address the most recent letter from the clamping company, it is pure fantasy. There is no legal minimum size of sign, and such a thing could not work as the apparent size would depend how far away it was.)

[psion123]

I've only just taken this in, but wouldn't this mean that the entry on the credit card bill is void/unenforceable? They are admitting there is no basis for the bank to claim payment from you, since the bank is jointly liable.

 

(To address the most recent letter from the clamping company, it is pure fantasy. There is no legal minimum size of sign, and such a thing could not work as the apparent size would depend how far away it was.)

 

Well, I think you are right about the bank. I've sent letter #3 in the last few days, so let's see what they say. I also contacted the banking onbudsman and quoted the banks' letter to them. They have agreed the bank seem to have led themselvs up a blind alley, but of course they need to have a proper investigation.

 

As to Mr Clamping Co. I thought this was total rubbish about sign sizes. I've given up with trying to appeal with them, and so have completed statements for court this morning. Just a matter of deciding if MCOL or County Court action is the best bet.

 

BTW. I had a great letter back from the Home Office. They confirm that UTCCRs 1999 is enforceable by Trading Standards. That came as a total surprise to my local TS office, who were previously claiming it was the consumer, not them who had to take action. I sent a copy of the Home Office letter to them, told them I was making a formal complaint about unfair t's & cs in Mr Clamping Co. signs (contract?) and suggested they go and enforce.

[Barnsley Boy]

Psion,

 

Well done! can't help feeling that Mr Clamping Co has simply taken on the wrong guy.

 

My predicttion - a KO in the third

[Howard0181]

psion123

 

the use of the words "without prejudice" is not understood by most people.

 

Even if these words are marked on a letter in some instances the letter can be used in court. Also, just because the words "without prejudice" are not marked does not mean that the letter can be used in a court case.

 

In the letter you have mentioned even though its marked "without prejudice" the letter can be used in court. The reason is because the letter states a position. Had the letter offered you say 50% of your money back then the letter could not be used in court. If you reply do not attach the words "without prejudice" to your letter. The only reason why you would attach the words "without prejudice" would be if you were in negotiation with the clamping company.

 

You are in a stronger position because you paid by credit card.

 

You have 3 options

 

1. sue the clamping company

2. sure the owner of the landlord (they have a liability if your case is good)

3. sue the credit card company

 

I would find out who the owner of the land is and write to them demanding your money back.

 

Normally you would be best advised to sue the owner of the land because the clamping company might just vanish (new identity etc). You win your case but cant get the money. However, if you sue the clamping company and win and then they do not pay then the credit card company would be liable.

 

I would also write again to the credit card company restating your position and give them 14 days to pay or you will issue a county court summons.

 

You have a number of good options.

[psion123]

Hi all. We went to court today and the case has been postponed as the Judge felt that our claim under the Human Rights Act was not phrased sufficiently strongly.

 

We accepted that the claim should stay in the small claims court (£5000 limit), but accepted the judges offer to re-phrase for a more specific claim in respect of the false imprisonment aspect.

 

What I assume he is alluding to is the judgement in Arthur and Another v Anker (1995). “Nor might the clamper justify detention of the car after the owner had indicated willingness to comply with the condition for release: the clamper could not justify any delay in releasing the car after the owner offered to pay”.

Basically, the clamper must accept an offer to pay, and cannot keep you there as a hostage UNTIL you pay. You may not be able to pay at that particular time, (no credit card??) and therefore keeping you there until they get the money amounts to false imprisonment.

We now have to wait for July, but things are looking quite positive.