Clamping Guide

[b1gdave83]

Lol i did better than i thought at the time I wasn't even aware of all the in and outs untill after the event and come onto this brilliant forum.

 

The only problem i can see is that i phoned them to tell them where the clamp was. Couldn't they just say i didn't and base their claim on that?

Thats why i thought it might be a good idea to send a recorded delivery letter just stating that?

 

However i have been advised not to correspond with them at all

[pin1onu]

You have a lost property ticket from the Police. They can allege theft but that ticket puts you in the clear. If they persist in the allegations and put it in writing they are leaving themselves open to a claim of defamation of character. (i.e. you sue the b'stards)

[b1gdave83]

Even better. Thank you

[Graham117]

How many people who cut clamps off are actually prosecuted?

 

It seems to me, that if you did cut a clamp off, believing you'd been wrongly / unlawfully clamped, then you would have 'lawful excuse' as a defence to criminal damage. Would it be up to the landowner / clamper to take you to a civil court first, and prove (as they are the claimants) that you had trespassed and been lawfully clamped?

 

If not, then your defence (your 'lawful excuse') to criminal damage would hinge on whether the clamping was lawful, and a magistrates' court wouldn't be willing (or even able) to decide on that, as it's a civil matter. Surely this would be unfair on you (right to a fair trial maybe?)?

[JonCris]

They cannot penalise motorists on private land without a licence from with he land owner & that licence MUST allow the holder to do anything they wish with the land subject of course to any covenants ................... something which a land owner is very unlikely to do .................. unless your a hospital trust many of who have sold the surrounding land to the parking company to overcome this legal problem

[JonCris]

Thank you, no didn't mention no damage. i got a lost property ticket.

 

Howver i did take a coule of photos of it...

 

What happens if they don't pick it up. Will they will try and charge me for it?

Also technically can i pick it up in 6 weeks?

 

Yes you can & then YOU can charge them storage .............. provided you tell them at the outset

[pin1onu]

They cannot penalise motorists on private land without a licence from with he land owner & that licence MUST allow the holder to do anything they wish with the land subject of course to any covenants ................... something which a land owner is very unlikely to do .................. unless your a hospital trust many of who have sold the surrounding land to the parking company to overcome this legal problem

JC, I am interested in knowing what the basis is for that statement.

 

IMV it applies if they are claiming contract damages. Damages for trespass are by their very nature penal as the trespass usually occurs without prior negotiation of damages and without a contract. Like most torts they are supposed to put the claimant in the position they would have been had the tort not occurred.

 

As a side issue it could be argued that the actual damages suffered by a landowner in clamping/trespass situation would be nominal. It follows that the release fees are often exhorbitant in relation to the loss suffered.

 

All trespass damages are supposed to be paid to the landowner. Any arrangement he has with the clamper should be seperate to that. In a trespass case, they would simply claim the clamper is acting as an agent of the landowner but I would be asking for proof that money is being paid to the landowner.

[mightymouse_69]

How many people who cut clamps off are actually prosecuted?

 

It seems to me, that if you did cut a clamp off, believing you'd been wrongly / unlawfully clamped, then you would have 'lawful excuse' as a defence to criminal damage. Would it be up to the landowner / clamper to take you to a civil court first, and prove (as they are the claimants) that you had trespassed and been lawfully clamped?

 

If not, then your defence (your 'lawful excuse') to criminal damage would hinge on whether the clamping was lawful, and a magistrates' court wouldn't be willing (or even able) to decide on that, as it's a civil matter. Surely this would be unfair on you (right to a fair trial maybe?)?

 

No idea on how many people are prosecuted - but there certainly have been prosecutions.

 

There would be no defence under the Criminal Damage act (lawful excuse)

 

R v Mitchell [2003] is an interesting case. The defendant parked his car, and displayed a permit. He wrote the incorrect date, but corrected it. The clamper saw the altered date and thought that it had been deliberatly altered. The car was clamped.

 

The defendant argued he had parked legally, and refused to pay. So he cut the clamp off. He was arrested and convicted of criminal damage... on appeal the co his court held that the conviction was sound. They quoted an earlier case:

 

“In my judgment, the suggestion that there was a lawful excuse for [the defendant's] action is wholly untenable. At the worst what he had suffered was a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for. Self-help involving the use of force can only be contemplated where there is no reasonable alternative.”

[Zamzara]

“In my judgment, the suggestion that there was a lawful excuse for [the defendant's] action is wholly untenable. At the worst what he had suffered was a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for. Self-help involving the use of force can only be contemplated where there is no reasonable alternative.”

 

It seems clear to me the issue will never be resolved sensibly until clamping is banned.

 

The above reasoning is the exact opposite of the argument for why clamping is legal at all.

 

It also hinges on clamping never being more than a civil wrong, but there are at least two high profile convictions for blackmail (in England), one of which was an admittedly extreme case but the other was for fairly standard clamping practices.

[lamma]

Agreed.

[jkdd77]

Am I the only person who thinks that the case law from the Mitchell case runs directly contrary to the letter of the actual statute law, in particular 5(3), and as such is utterly perverse? The judgment also takes no account of neither the stress, hassle, costs, and lost time for a wrongfully clamped person in pursuing a small claims case, [especially given that costs are strictly capped in small claims]. nor the huge difficulty [and futher cost and stress) in enforcing judgment against the many cowboy clampers which simply ignore CCJs.

 

Criminal Damage Act 1971 (c.48)

2)A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a)...

(b)if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

(i)that the property, right or interest was in immediate need of protection; and

(ii)that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

(3)For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

 

I really can't believe Parliament ever intended it to be a criminal offence for A to cut off an wheelclamp that was unlawfully applied by B with a view to demanding money to which B is not entitled.

Edited October 11, 2009 by jkdd77

[mightymouse_69]

A motorist cutting of a clamp would not fall under section 5 (lawful excuse).

 

Section 5 only provides a defence to those who damage property/threaten to damage property or permit something to damage property whilst they:

 

1) Believed the property owner would consent to damage to the property.

2) Believed the property was in need of protection.

 

Section 5(3) means that the accused must hold an honest belief that property needed defending or that the owner would consent to damage.

[jkdd77]

Deleted

Edited October 11, 2009 by jkdd77

[jkdd77]

If the clamping is unlawful then a motorist unquestionably does have a honest belief that his property needs protecting;

the problem is that the courts have decided (totally wrongly, IMO) that cutting off the clamp is not "a reasonable means of protection", and further decided that a person's honest belief is irrelevant in determining guilt under this section.

 

A motorist cutting of a clamp would not fall under section 5 (lawful excuse).

 

Section 5 only provides a defence to those who damage property/threaten to damage property or permit something to damage property whilst they:

 

1) Believed the property owner would consent to damage to the property.

2) Believed the property was in need of protection.

 

Section 5(3) means that the accused must hold an honest belief that property needed defending or that the owner would consent to damage.

 

Section 5 can definitely apply to motorists cutting off PPC clamps, as this acquittal shows:

http://news.bbc.co.uk/1/hi/england/2924617.stm

 

The defendant only needs to show one defence or the other, not both, although in the latter case, he or she must also show that the damage was reasonable under all the circumstances.

 

Pin1onu says in his guide that it would be lawful to cut off a PPC clamp that was applied to someone parking in their own space; are you saying that Pin1onu is mistaken?

Edited October 11, 2009 by jkdd77

[mightymouse_69]

I fail to see how section 5 can apply to a motorist who wishes to cut of a clamp attached to his car.

 

The section clearly states that such a defense only applies where the defendant beleived the owner would consent to damage, or where the defendent believes the property was in need of protection.

 

Now, no sane person would believe that a clamping company would consent to its clamps being damaged, so this is of no real issue.

 

Immediate protection of property has been thrown out of the courts on more than one occasion, for example in the Mitchell case.

 

The example in the BBC report is an interesting one. It seems to stem mainly from the clamping being unlawful because there was no consent. Quite why a charge of criminal damage was dropped i do not know, but i would not be confortable in treating the decission by the magistrates in that case as a reason to damage a clamp.

 

Pin1onu gives very good advice. I would not say he is mistaken in what he has said, however i would suggest that what he said was speculative rather than firm advice.

 

From all the case law i have read on the matter, the courts are very reluctant to agree that damaging a clamp is legal. Even where the person was parked legally (Mitchell).

 

In Lloyd v DPP the justices stated that it was a civil wrong that had taken place against the motorist, and the rememdy for such matters lay in the county courts. They did however say that "Self-help involving the use of force can only be contemplated where there is no reasonable alternative." They then refered to Stear v Scott, in which the justices stated that even if the clamp had been fitted ilegally ( causing a trespass) they would not justify forceful removal of it [the clamp].

 

Taking this into account, it would not be good advice to suggest that one may cut of a clamp even when one thinks they have been clamped unlawfully.

[pin1onu]

MM you make a very good point. Thank you for your comments.

 

I have pointed out in the guide that there is some considerable debate about whether you should cut a clamp off. It comes down to an individual call and whether you are prepared to run the risk of charges. In the guide I leave it specifically to the individual to make the call.

 

I also point out that getting a conviction may be difficult. I don't expand on it in the guide but if you go about it carefully it would be difficult to prove who had done the deed.

 

Try making an identification when the person who is cutting the clamp is wearing a hoody and a baseball cap/halloween mask etc even if there is CCTV in the area. If you wear gloves, there's going to be very little forensic to find and thats if a SOCO even attends or examines.

 

If the cops did interview you over the matter you would have the options of admission, denying, or a no comment interview.

 

I don't advocate admitting your guilt, denying could get you into a whole load of trouble whereas a no comment leaves them stymied. They can speculate but cannot infer anything.

 

Of course if you can get a friend to do the cutting for you - you can stand there, hand on heart and say "not me guv".

 

Please don't think I'm advocating illegal activity, I'm merely pointing out that getting a conviction might not be that easy for the clampers. They have to get our over-worked police force to take time out from persecuting the speeding motorist and the Criminal Protection Service....sorry Crown Prosection Service to build a case and bring charges. In addition the burden of proof is higher - "it's beyond reasonable doubt" all the way. "How do you know it was the accused?", "We just do" (:grin:) wasn't good enough for County Court and is certainly not strong enough for Magistrates.

 

However there is still a risk of conviction and I re-iterate that you should think carefully about whether you are prepared to embark on this course of action.

Edited October 14, 2009 by pin1onu

[itstheone]

Hi pin1onu,

I've just started looking into this as my daughter was clamped today.

In your first post you list what should be on the reciept:

6)Upon payment a receipt must be issued. The receipt should contain the:

a)the name of the license holder

b)the signature of the license holder

c)the license holders SIA License number

d)the location where the vehicle was clamped or towed

e)the date when the vehicle was clamped or towed

 

Does this need updating? I've just looked at what, i think, is the latest code of pratice here

 

http://www.britishparking.co.uk/files/aos/bpa_codeofpractice_v4.pdf

 

and it mentions other things that should be on the reciept:

 

A11.5 You must give receipts for payments. The receipts should

include the following information:

a the registered company name of the operator and,

if the operator is using a trading name other than its

registered company name, a geographical address

where documents can be served

b the landline telephone number of the operator

c the vehicle registration mark (VRM) of the vehicle

immobilised

d the name of the person the receipt is given to

e the name, SIA number and signature of the operative

issuing the receipt

f the full amount paid and the method of payment (for

example, cash, cheque, credit card and so on)

g the operator’s VAT number, if the operator is

registered for VAT

h the date and time of the payment

i how to challenge or appeal against the vehicle’s being

immobilised or removed

j the place where the vehicle was immobilised or

removed from

k a serial or reference number unique to that receipt.

 

The reciept my daughter was given has some omissions from this list

 

It has no name of the person, only a signature. I've checked the licence no. online and i cant tell if its the same person.

It doesn't say cash after the method of payment

It doesn't have the time clamped or released, even though there are places for that on the reciept,

It doesn't have a unique serial or reference number

 

I may be clutching at straws but would this be grounds for a refund?

 

I'm off up there tomorrow to take some photos of the signs, but i would appreciate your input on this.

 

Also the telephone numbers on the warning notice and reciept are a mobile number and an 0871 number. Are 0871 numbers classed as premium rate now, in contravention of the 'code of pratice'?

 

*EDIT*

Also forgot to say that the guy that took the clamp off and gave the reciept admitted he wasn't the one who put the clamp on

 

Regards

Edited November 3, 2009 by itstheone
various additions

[T25]

Another case regarding Newline securities;

I was clamped this morning,despite being legally parked and displaying the correct notices.After a lengthy phone call I managed to get the clamp removed ,free of charge,and continue on my way.

My question is:Am I within my rights to claim compensation for the cost of the mobile phone call and the loss of earnings,due to the time wasted?

What are my chances of success?

[Graham117]

Sound's like you did very well. In my experience of clampers, they would have just refused to remove it until you paid up, and then ignored any attempts to get them to court.

 

You are entitled to claim for any actual loss you have suffered, but I don't know about your chances of success. Always remember the landowner is jointly liable with the clampers, and more likely to respond. Find out who they are, then write to them along with the clampers and see how you get on.

[pin1onu]

Hi pin1onu,

I've just started looking into this as my daughter was clamped today.

In your first post you list what should be on the reciept:

6)Upon payment a receipt must be issued. The receipt should contain the:

a)the name of the license holder

b)the signature of the license holder

c)the license holders SIA License number

d)the location where the vehicle was clamped or towed

e)the date when the vehicle was clamped or towed

 

Does this need updating? I've just looked at what, i think, is the latest code of pratice here

 

http://www.britishparking.co.uk/files/aos/bpa_codeofpractice_v4.pdf

 

 

Much as they would love it the British Parking Association do not control clamping. The BPA code of practice is voluntary and not binding on their members. It certainly has no legal power. Also not every clamper is a member of the BPA.

 

The requirements mentioned in the guide and are lifted from PSI Act and regulations - which to my knowledge have not been amended. The body responsible for enforcing breaches are the Security Industry Authority.

 

and it mentions other things that should be on the reciept:

 

A11.5 You must give receipts for payments. The receipts should

include the following information:

a the registered company name of the operator and,

if the operator is using a trading name other than its

registered company name, a geographical address

where documents can be served

b the landline telephone number of the operator

c the vehicle registration mark (VRM) of the vehicle

immobilised

d the name of the person the receipt is given to

e the name, SIA number and signature of the operative

issuing the receipt

f the full amount paid and the method of payment (for

example, cash, cheque, credit card and so on)

g the operator’s VAT number, if the operator is

registered for VAT

h the date and time of the payment

i how to challenge or appeal against the vehicle’s being

immobilised or removed

j the place where the vehicle was immobilised or

removed from

k a serial or reference number unique to that receipt.

 

Some of these items are required by other pieces of legislation - e.g. The Companies act where the clamping company is a limited company and The Business Names Act. The enforcement of these requirements include Companies House and Trading Standards.

 

The reciept my daughter was given has some omissions from this list

 

It has no name of the person, only a signature. I've checked the licence no. online and i cant tell if its the same person.

It doesn't say cash after the method of payment

It doesn't have the time clamped or released, even though there are places for that on the reciept,

It doesn't have a unique serial or reference number

 

I may be clutching at straws but would this be grounds for a refund?

It would help your case and you would have grounds for a complaint to the SIA but IMO it would not be sufficient grounds alone to attempt recovery via the courts.

 

 

I'm off up there tomorrow to take some photos of the signs, but i would appreciate your input on this.

 

Also the telephone numbers on the warning notice and reciept are a mobile number and an 0871 number. Are 0871 numbers classed as premium rate now, in contravention of the 'code of pratice'?

 

*EDIT*

Also forgot to say that the guy that took the clamp off and gave the reciept admitted he wasn't the one who put the clamp on

 

Regards

As above The BPA code of practice is not binding - the code exists so that companies that are part of it can gain electronic access to the DVLA records and not have to submit manual forms when they require information. The information is usually used by Private Parking Companies attempting to enforce invoices for alleged breaches of contracts.

 

In terms of clamping, Implied consent is the key to most refunds and should be the basis of most claims. Also has case law been followed. (e.g. signage etc)

 

The other is whether the damages being charged are reasonable. If they are exhorbitant then the landowner may have a hard time to justify them. Unfortunately what is classified as exhorbitant would be at the discretion of the court. The issue is whether the amount charged puts the landowner in the position they would have been in had the trespass not occurred.

 

If you do seek recovery of the money paid please make sure you go after both the landowner and the clamper.

Edited November 11, 2009 by pin1onu

[T25]

Sound's like you did very well. In my experience of clampers, they would have just refused to remove it until you paid up, and then ignored any attempts to get them to court.

 

You are entitled to claim for any actual loss you have suffered, but I don't know about your chances of success. Always remember the landowner is jointly liable with the clampers, and more likely to respond. Find out who they are, then write to them along with the clampers and see how you get on.

The land owners are the people I rent my storage unit from.I have already emailed the clampers,as yet with no reply.

[pin1onu]

The land owners are the people I rent my storage unit from.I have already emailed the clampers,as yet with no reply.

The landowners are responsible for the actions of their agents (i.e. the clampers)

[tjw78]

Hi, I am hoping someone here is able to help me. I live in a block of flats with my own parking bay and permit, and the car park is patrolled by a clamping company.

 

Yesterday I was clamped for parking across two bays. I was in my own bay for which I have a permit, with the 2 passenger-side wheels in the adjacent bay. I had parked slightly to one side as my neighbours were loading children into car seats in the bay on the drivers side when I returned home, so I parked to the left to leave them room to do so. The bay I was parked over belongs to my other neighbour who does not have a car and therefore would not obstruct him in any way.

 

I have had to pay the fine (an extortionate £177) to avoid my car being towed. Do I have grounds for appeal? Appalled at the conduct of the clamping company, completely disinterested when I explained the situation.

 

Yours hopefully,

tjw

[crem]

Only course of action I think tjw78 is to send a Letter Before Action to both the clamper AND the landowner giving them 7 days to refund and then submit a CC claim against them both.

[Bartholemew]

Hi all.

 

Please tell me if in my situation I can do something, any advice would be much appreciated.

 

In my case I had to pay 551.21 pound before the Citi**tch relesed my car from a towing truck.

 

I am renting a flat in a mixed new build block of flats. ( council / private / share to buy / rent to buy)

 

My vehicle was parked on what I claim is a public road space. It is clearly visible on an A-Z and other maps, it is a valid postcode address etc

 

There is no restrictions on the both sides of the road ie. no signs / lines etc.

 

On one side of the road there are back gates of private houses gardens, some are wide garages doors some just small doors leading straight to the back gardens. While I was parked on this side of the road I had no trouble for couple of weeks until the private houses owners left a handwritten note on one of the cars parked be their back gardens gates. " Guys please dont park Your cars here we need access to our gates " etc... Fine, while other cars are still parking there I started to park on the other side of the road...

 

On the other side there is the block of flats I live in. For couple of nights there was no trouble. I parked the car close to the wall so there is no obstruction for other road users who would like to pass ie. I wasn't blocking the road. I wasn't blocking any gates / emergency water outlets / doors at the block of flats.

 

My car was the only one parked in this way so this is in fact a bit of a test case.

 

There is a special private section for about 10 cars situated of Multi Way which is a private parking and this section requires a permit. There are warnings about private property / clamping / towing displayed. I got clamped there months ago but by the same company but that time hands up I could not do much and I think they were right so I kissed 105 pounds goodbye and after they unclamped it moved the car. Clampers were also pointing : here - private car park ie needs parking permit, there - public road go on park it there , no problem.

 

The man who clamped my car this time claim that if my car was parked against the wall of the private block ( the block I live in ) without the valid permit I am in the wrong and liable to being clamped and then towed away.

 

I claim that this is still a public road and when there is no restrictions I can park there.

 

All this happened from around 8pm to 10pm. I noticed the car's alarm went of when it was up in the air on a towing truck with both front wheels raised. Here goes long discussion with the men and their company over the phone, I also spoke to local police station cos I thought my car is being stolen but they said this is a civil dispute and they wont be getting involved. As I am a private hire driver and the car belongs to the company I work for I finally agreed to pay as I had a job booked for the following morning and the men said every half an our they spend there is another 80 pounds ( on top of the 360 releasing from the tow truck fee ).

 

I checked the SIA number given on the receipt and it looks OK, But,

 

there were three men

- one in small van - the one who took payment and produced the receipt,

- two the driver of the tow truck and

- three tow truck little helper, I say little because he looked no more than 13 years of age.

 

The receipt contained just one man's details twice ( SIA, name etc ) , nothing about the other guys, Is this all kosher ? what about the underage ( I assume ) boy working there and the tow truck driver should they also have relevant license ?

 

I have the P O box address of the company and I was given two weeks to appeal .

 

Please advice what I can do in this situation.

Edited February 10, 2010 by Bartholemew