Clamping Guide

[pin1onu]

Guide to Clamping on Private Land in England and Wales

CLAMPING/TOWING/BLOCKING IN ON PRIVATELAND

 

(A copy of this guide can also be found at Blogspot:Clamping Guide)

 

 

Introduction

 

This document started after a few colleagues of mine were clamped at work. I wanted to check out the legality of clamping and find out what, if any, remedies there were. As I started trawling various forums and looking at the issues there was a distinct difficulty in trying to find answers. The information was there but not in anyone place.

 

This guide covers clamping on private land only and not on the public highway.

 

A good starting point in understanding your rights and the obligations of the clampers is contained in the Citizens Advice Bureau’s excellent advice guide.

 

You can find it at http://www.adviceguide.org.uk/t_whee...ivate_land.pdf.

 

However the guide has very little background and is necessarily brief. This document seeks to fill in the blanks and provide further information.

 

The Security Industry Authority refers to clamping as vehicle immobilisation. This can also mean towing away or blocking in. As these are all related remedies for trespass I will use the term interchangeably in this document.

 

The document includes my recommendations on what to do if you are clamped and what remedies you can seek. The list of remedies is not exhaustive and should not be treated as such.

 

October 2009: Clamped on Land You Own or Rent

I have seen a number of questions regarding tenants/owners of private dwellings with shared car parks wanting to know the situation regarding clamping. This is often in response to a landlord/property factors bringing in a clamping firm. I have done a bit of research into trespass and garnered opinions from various sources and put something together on this topic. This information is contained in Appendix A at the end of the guide. Please note that my solutions are just suggestions and you should verify the legality of any action before embarking on it. See the disclaimer below.

 

January 2010 Updated

 

 

I have added an appendix listing the more useful references used in writing this guide. I’ve also added some discussion on criminal damage to a clamp. There are some other minor amendments and clarifications.

 

Disclaimer

 

Please note that I am not a lawyer and the following should not be construed as legal advice. While I have set out to be accurate the information could contain errors or omissions.

 

Any advice given is of a general nature and I will not accept liability for costs incurred for using any part of this guide. You should seek legal advice before embarking on any course of action recommended.

_________________________ _________________________ _________________________ _____________________

 

Background and Legal Basis for Clamping

 

Clamping began in the 1980s as a controversial statutory measure to deter illegal on-street parking in Central London. It was the success of that measure and its extension to other congested city centres which encouraged its use by private landlords and the proliferation of clamping companies willing to carry out that work on their behalf. But whereas on-street clamping was tightly regulated with specific procedures, rights of appeal and controls over the amount of release fees, the opposite was true of private clamping, which was completely unregulated and a product of the common law.

 

The common law principle that clamping uses is a medieval remedy for trespass called damage distress feasant. This principle basically put is that something may be detained until damages have been recovered or satisfaction be rendered for injury they have done. In the past this principle was applied amongst other things for trespass of livestock. If someone’s livestock strayed onto someone else’s land and caused damage, the landowner was entitled to keep hold of (distress) the livestock until damages were paid. In the same way clamping involves keeping hold of (distressing) your car until you pay for the damages you have caused in parking where you have. This remedy also applies to towing a vehicle away.

 

Trespass is part of the legal system of torts. Under tort, damages are sought to restore a party to original position as best they can before commission of the tort. They are therefore punitive in nature. Contrast this with damages arising from breach of contract. Contract damages seek to put a wronged party in the position where they would have been had the contract been performed. They must not be punitive.

 

Clamping is illegal in Scotland thanks to a 1992 court ruling. In BLACK v CARMICHAEL (1992- S.C.R 709) it was decided that the clamping of a vehicle and the demanding of a release fee amounted to extortion and theft.

In England and Wales a different approach was taken. A Court of Appeal decision in 1995 gave clear guidance. The Case of ARTHUR v ANKER (Times Law Reports 1st December 1995) produced a landmark decision

 

 

On the 6th May 1992 David Arthur knowingly parked his car in a private car park belonging to commercial leaseholders for around 45 minutes whilst visiting the nearby local authority planning department. In doing so he disregarded a prominent notice warning that unauthorised vehicles would be wheel-clamped and a £40 release fee charge.

On returning to his vehicle he saw the inevitable clamp. He refused to pay any release fee and made an unsuccessful attempt to remove his own vehicle with a pick up truck – which led to an altercation between his wife and the clamper, Thomas Anker, which led to Mr Anker claiming he had been assaulted by Mr Arthur’s wife.

In the early hours of the following morning, Mr Arthur returned to the car park and succeeded in removing the two clamps, which had immobilised his vehicle, before driving away. Unfortunately this did not satisfy Mr Arthur who went on to sue Mr Anker for trespass to his vehicle. In rejecting Mr Arthur’s claim, the Court of Appeal laid down the principles of law which now govern modern wheel clamping.

 

 

These are:

 

• Where warning notices are prominently displayed, any motorist who parks a vehicle in defiance of that notice will be deemed to have consented to the clamping of his/ her vehicle and its subsequent detention until a release fee is paid.(implied consent)
  
• The amount of the de-clamping fee must be reasonable.
  
• Arrangements must be in place to enable the prompt release of a vehicle once the vehicle owner has indicated that s/he is willing to pay the release fee.
  

There remains uncertainty as to what constitutes a "reasonable release fee". In VINE v LONDON BOROUGH OF WALTHAM FOREST (Times Law Reports 12th April 2000), the original trial judge had regarded a release fee of £105 as reasonable- although the Court of Appeal later ruled the clamping illegal on other grounds.

 

On the morning of 6th March 1997 Ms Vine had been undergoing hospital treatment. She felt unwell and therefore parked her car (on private land) in order to leave the vehicle and be sick. She did not see the clamping signs, which were displayed. On returning a few minutes later she found that her car had been clamped. Under protest, she paid the release fee by credit card, but, assisted by the Automobile Association, she successfully sued for a refund.

 

The lesson from Vine is that even when signs are prominently displayed, a motorist who has not seen them cannot have consent to a vehicle being clamped. An underlying principle is that it is not only objective judgement must be exercised but also subjective judgement as well. Even if the signs are seen they have to be read and understood.

 

Also in amongst the judgement from Vine was a ruling on a reasonable release fee. In the original case a release fee of £105 was deemed reasonable. That amount today, taking into account inflation using the retail price index as a guide, would now equate to roughly £138 (March 2008). However it is worth pointing out that often the damages awarded for trespass are nominal. Bearing in mind that tort law is not designed to enrich the wronged party but rather to put them in the position they would have been in had the tort not occurred, it could be argued that many of the release fees are disproportionate to the actual damage suffered.

 

These two cases decided that clamping in England and Wales by private companies was legal and provided a certain framework to govern the activities of the clampers. However with numerous cases of clamps being applied illegally when cars were legitimately parked, cases of intimidation, assault, threatening behaviour on or by the clampers it soon became clear that there was something wrong. Rightly or wrongly an act of parliament sought to correct the imbalance but instead of outlawing clamping as a remedy to unauthorised parking on private land it instead gave it cloak of legitimacy. It was lumped in with the Security Industry Act.

 

The Private Security Industry Act and The Security Industry Authority

 

In 2001 the Private Security Industry Act was passed. This has been amended and was finally enacted around 2004. The Act sets out some very strict rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and list some pretty stiff penalties for breaches including fines up to £5000 and 5 years in jail.

 

Part of the act authorised the setting up of an administrative body to oversee the licensing of Security Industry Operators and staff. This body is the Security Industry Authority. The Security Industry Authority (SIA) has a website (https://www.the-sia.org.uk/). You can obtain links to all the relevant legislation relating to the SIA. More importantly you can perform an online check to verify the license of any SIA licensed individual.

 

Licenses fall into two categories – frontline and non-frontline. Frontline licenses are required by all staff who will be undertaking day to day security duties including vehicle immobilisation.

 

Non-frontline licenses are required by the principals of firms whose employees undertake duties licensable under the PSI act.

 

Landowners have a responsibility to ensure that anyone performing vehicle immobilisation for a fee on their land is licensed by the SIA. There are pretty stiff penalties for landlords (and I guess this would mean CEO or directors if it’s a registered company) if they allow unlicensed operators to immobilise vehicles on their land on their behalf (i.e. acting as their agent).

 

The SIA do not regulate

 

• the amount of the release fee
  
• the time taken to release a vehicle
  
• the adequacy of signage around the site warning that vehicles may be immobilised
  
• the complaints procedure of the company employing the vehicle immobiliser
  

They SIA advise that :

 

“If a vehicle immobiliser uses threatening behaviour or intimidation they may be committing a criminal offence and we would recommend that you report such instances to the police”.

The SIA's remit covers the individual undertaking the licensable activity.

 

 

The PSI Act sets out that:

 

• The person immobilising the vehicle must be licensed by the Security Industry Authority.
  
• The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
  
• Upon payment a receipt must be issued. The receipt should contain the:
  
  • the name of the license holder
    
  • the signature of the license holder
    
  • the license holders SIA License number
    
  • the location where the vehicle was clamped or towed
    
  • the date when the vehicle was clamped or towed
    

   

Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.

 

 

These are

 

1)A vehicle must not be clamped / blocked / towed if:

a)A valid disabled badge is displayed on the vehicle.

b)It is an invalid carriage

c)It is a marked emergency service vehicle which is in use as such.

 

 

In The Private Security Industry Act 2001 (Licences) Regulations 2007

 

• “invalid carriage” has the same meaning as in section 253(5) of the Road Traffic Act 1960;
  
• “disability badge” means a badge issued under section 21 of the Chronically Sick and Disabled Persons Act 1970; and
  
• “Emergency vehicle” has the same meaning as in regulation 3(2) of the Road Vehicles Lighting Regulations 1989.
  

Any firm who does not comply with the above is in breach of the Security Industry Act and can be prosecuted.

 

Unlicensed Clamper

 

It is also an offence to knowingly employ unlicensed clampers. Landlords can be fined up to £5000 and/or be jailed for up to 6 months per offence.

 

Other License Conditions

 

Front line staff must:

 

• Wear the licence where it can be seen at all times when engaging in designated licensable activity (unless you have reported it lost or stolen, or it is in our possession)*.
  
• Tell us and the police as soon as practical if your licence is lost or stolen
  
• Tell us as soon as practical of any convictions, cautions or warnings, or charges for relevant offences whether committed in the UK or abroad
  
• Tell us of any changes to your name or address as soon as practical
  
• Not deface or change the licence in any way (should your licence become damaged, you should advise us and request a replacement).
  
• Not wear a licence that has been defaced or altered in any way
  
• Produce the licence for inspection on the request of any constable, any member or employee of the SIA or other person authorised by the SIA
  
• Return the licence to us as soon as practical if you are asked to do so
  
• Tell us as soon as practical of any change to your right to remain or work in the UK
  

*You do not have to wear your licence where it can be seen if you can demonstrate that the nature of your conduct on that occasion requires that you should not be immediately identifiable as someone engaging in such conduct. On such occasions you must carry your licence on you and be able to produce it on request. This condition allows store detectives or close protection operatives to perform licensable activities without the need to be identifiable. The covert licence condition cannot apply to vehicle immobilisers.

 

Camera Operatives need to be Licensed?

 

The following is taken from the notes of the Vehicle Immobiliser Network Meeting 20th March 2009. (Thanks to Blessed Beard over at Pepipoo for this one.)

 

 

 

5. Will the SIA allow trained vehicle immobilisers who have not yet received their

licence to shadow a trained and licensed VI to get some training ‘in the field’? Bad

experiences can scare off new vehicle immobilisers, so the money spent on their

training and licensing is wasted.

 

The Private Security Industry Act 2001 says that “activities carried out in connection with” a

licensable role should be licensed. Therefore if someone is accompanying the licensed

vehicle immobiliser, observing the process, they would need an SIA licence. Although it

could be argued that ‘in connection with’ is down to interpretation, it would be up to a court

of law to decide.

 

 

Valid Clamping?

 

Under the PSI Act and existing case law for clamping to be valid the following must be present or take place

 

1. There must be clear and prominent signs indicating a vehicle may be immobilised.

2. The signs should contain

a)A number at which an offer to pay the release fee can be made

b)The amount of the release fee (which should be reasonable)

3)Upon an offer to pay or payment being made the vehicle must be released in a reasonable amount of time

4)The person immobilising the vehicle must be licensed by the Security Industry Authority.

5)The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.

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

What to Do If You are Clamped

 

1. Keep calm, however distressing it may be, getting angry or upset will do you no good and it may get you arrested.

2. Take a note of any signage. It should be clear and visible. Look particularly at entrances/exits.

3. If you have a digital camera take pictures of any signage. Is it readable from where you stand? Was it prominently displayed where you came in?

4. If you have the ability record/make notes of anything said or done by the clampers. Particularly record or note any threatening or intimidating comments or behaviour.

If they demand extra because a tow truck has been called out refuse to pay and call the police. They must release once an offer to pay is made.

5. Ask to see the clampers SIA I.D. If they cannot produce it call the police. They are possibly unlicensed and thus committing an offence under the PSI act.

6. Pay on a credit card if you can or by cheque.

7. Do not offer any physical violence to the immobilisers you are liable to be arrested.

8. Do not damage a clamp (i.e. cut it off). You leave yourself open to a charge of “criminal damage” if you do. (There is some debate over whether if you found a clamping to be wrong e.g no signage whether you would be entitled to end the tort by a "self help" method e.g. bolt cutters. You have to make a judgement call). All that said proving a charge of criminal damage may not be that easy.

9. If you can remove the clamp without damaging it then you can do so.

10. Make sure you get a full receipt with all the required details

11. Check that the clamper is licensed on the SIA website.

12. If they are demanding a towing fee for a tow truck turning up or being called but not actually towing refuse to pay anything other than the release fee.

 

Can I Recover My Money?

 

Unfortunately there is no one clear path to go down to seek redress if you are clamped. More often than not you will have been forced to pay to have your car returned – regardless of whether the immobilisation is legal or not. Unless the firm in question is grossly in breach of the PSI Act then the only path left open to you is to attempt a civil recovery. This will need to be done via letter at first and if that fails then through the county court on the small claims track.

 

One final point is that these firms are often fly-by-night outfits. If you are seeking redress you should sue the clamping firm and the landowner as co-defendants. (landowner details can usually be obtained from the land registry. (www.landregistry.gov.uk).

 

Damages claimed for trespass must be paid to the landlord so unless the clampers and the landowner have a water tight agreement they may be acting unlawfully.

 

Stopping or Reversing Payment

 

If you have paid by cheque or credit/debit card there may be avenues open for to try and get the payment stopped or reversed.

 

If you can pay by cheque then do not put any guarantee information on the back. The simple thing to do is ring your bank and have a stop put on the cheque. It may cost you a small fee to do so but its better than a large amount. I suspect that most clamping companies will be unwilling to accept payment by cheque for this very reason.

 

If you paid by credit card or debit card then you could, reasonably in my opinion, claim that you were forced to pay under duress and that the transaction is invalid.

 

It may be that your bank or credit card company will be unwilling to do anything to help you. If that is the case then the your only remedy is recovery through the civil courts

 

Gather Evidence

Before attempting any recovery you need to gather evidence of any failures to comply with either the SIA legislation or the case law given under Vine or Anker.

Signage

 

One of the most common causes of complaint is the lack of adequate signage. Arthur Vs Anker clearly states that a sign must be present. Vine further enhances that by saying it must be seen and understood. If the signage is clearly posted and you’ve parked in clear violation then you’d better have a pretty good reason, such as in the Vine case, to bring a claim against the firm that clamped you.

 

However that said signage is often missing, inconspicuous or unreadable. Many posters on the consumer action group forums have mentioned that poor lighting as a reason for the signs being missed.

 

One “pay for a solution” website I have seen suggests that a guidance point for the visibility of signs is the Road Traffic Act 1991. As there is no guidance for size of no parking signs or their placement on private land other than the case law that they should be clear, visible and understood you could use the guidance on public land as a reference. Whether a court would accept this is debatable.

 

Excessive Charge

 

There is no legal limit to the amount that can be charged for a release fee. The Vine case said that a reasonable amount in 1997 was £105. This roughly translates to £138 in today’s terms (based on the CPI and rate of inflation March 200 . It would be worth consulting a lawyer with a view to court action if you’ve paid significantly more than this. However this figure is a guideline and even if you’ve paid less than a court may decide it is still to high.

Not Licensed By The SIA

 

If the immobilisers are not registered it may render the clamping invalid and therefore you should be able to seek a refund. It may be that attempting a bargain along the lines of refund my money and I won’t report this breach will be effective. Bringing pressure to bear on the landlord may also bring results. In my view you would do better to report the matter to the SIA and seek redress via the courts as the clamping should not legally have taken place and by that reasoning no release fee should have been due. In performing the unlicensed clamping they have broken the law and both they and the landowner can be fined up to £5000 and/or be jailed for up to 6 months per offense.

 

Summary

 

It would seem the clampers have it going for them – at least initially. They get your money and backing in some cases from the Police. Knowing your rights will help you seek redress is through the courts.

 

I hope this guide will help.

 

Pin 1 On U

 

(A copy of this guide can also be found at Blogspot:Clamping Guide)

 

Appendix A: Residential Parking and Clamping

 

Introduction

 

This section is to deal with what is becoming a very real problem. More and more property managers, landlords and so on are looking to respond to resident complaints about people parking in their spaces and are often times bring in clamping firms to deal with the problem.

 

Clamping is a remedy for trespass. Bearing in mind that trespass is to enter wrongfully or without proper authority or consent upon the real property of another, it does (or should) present problems for using clamping in a residential setting. The key element is “wrongfully or without proper authority or consent”. That consent or authority comes from either two sources the landlord (usually through a lease or rental agreement) or a title deed (i.e. you own the land and the parking space).

 

Guidance if your accommodation includes a parking space (ownership, rental agreement, lease)

 

I have seen information being sought by a number of people who own accommodation that includes a car parking space. The normal situation is that the estate management or property factors decide to bring in clampers to control the parking situation. In some cases this is at the residents behest but I have seen cases where this was done without the residents knowledge or consent.

 

You cannot be deemed to have trespassed if you have proper authority or consent. If your title deeds, lease or rental agreement specifically mention a car parking space then as far as that is concerned you have consent to park in that space. There may be conditions imposed, particularly in a rental situation that should you breach may cause the consent to be withdrawn. You would need to check the documentation carefully.

 

Permits or No Permits.

 

Often management companies will seek to impose a system of permits. Any car not displaying a permit gets clamped. As a general rule this cannot simply be imposed. In the case of a new scheme then this would amount to a unilateral change of contract or an attempt to make you party to a contract. This simply cannot happen. Both need your agreement.

 

In the case of moving into an existing scheme as a tenant unless the rental/lease agreement makes it clear or you sign something specific then again you are not obligated to participate.

 

It may be you like the idea of a permit scheme and want to participate in it. At face value it presents a low cost option. But what happens when you, who have a perfect right to park, forget to display your permit and are clamped. Are you really liable for the release fee? Not so attractive now is it? I would suggest that there are more cost-effective and less stressful methods of preventing people parking where they shouldn’t. I will detail some later.

 

For anyone facing a permit scheme I would advise you opt out. You don't need to be confrontational. A polite discussion will probably achieve more. However I would put all of the above in writing as well and send it via recorded delivery. That way he you have a record that you notified all parties concerned.

 

Your letter should include the following points and be addressed to the clampers and the landlord/ management company/property factors

 

1. That you reject their permit scheme

2. Advise them that you will expect an immediate and full rebate of any release fee paid should your vehicle be clamped and any incidental expenses incurred.

3. Advise them that if your vehicle is clamped, you will be seeking damages for trespass, harassment and loss of enjoyment of the property.

 

Clamped in Your Own Space?

 

If you are the landowner then and this is ignored then they are in violation of the Private Security Industry Act 2001. They must have landowner permission to clamp. If they enter your land to clamp your vehicle they become guilty of trespass themselves and you would certainly have an actionable case against them and whoever employed them. You can, and should report them to the police and the Security Industry Authority.

 

If you are tenant you may have grounds to seek damages from the landlord for loss of “peaceful enjoyment of the property”. (Human Rights Act 1998. You need to check your agreements carefully. They may be guilty of harassment under the Protection from Eviction Act 1977 (C43 1.1.3). To enter your property a landlord or his agent must give 24 hours written notice and have your permission. Tenants need to confirm that they have a parking space specifically allocated to them and that they have not inadvertently agreed to clamping. If you haven’t agreed to this then effectively you are in the same situation as a landowner and could have an actionable case against them for trespass.

 

If you find yourself in the position of being clamped in a space that you own or rent then it is my opinion that you would be in a position to persue a self-help remedy to remove the clamp. Alternately you might want to call the clamping company, advise them of the situation and get them to release you. They may of course refuse. Complaints to the police may prove effective as they have interfered with a motor vehicle.

 

Communal Parking - Renting

 

This is harder to advise on. It is very much dependent on your lease/rental agreement. But essentially if you have permission to be there then you cannot be trespassing.

 

Alternatives to Clamping

 

One of the best alternatives I’ve seen is one that empowers the owner/renter of a parking space to control access. It is the raisable bollard/post. These can be locked into position and prevent access when your car is not there. These are relatively low cost (probably lower to buy and install than the average clamping release fee) solutions to implement and mean the a lot less hassle and stress you.

 

Remedies

 

Talking is good. Quiet negotiation may achieve more than shouting and yelling. A quiet polite letter stating your case may help. If not you have the alternative of going to court - having sought legal advice first.

 

Appendix B: Sources and References

 

Lloyd vs DPP 1992

Arthur vs Anker

Vine vs LBC Waltham Forrest

The Private Security Industry Act 2001

The Private Security Industry Act 2001 Regulations 2007

The Security Industry Authority

Edited January 29, 2010 by pin1onu
Updates and clarifications

[pin1onu]

I have a general clamping question that I thought of yesterday.

 

I know that when it comes to parking "fines", it is the driver that enters the contract when he uses the car park after reading the sign. So, if a letter is addressed to the registered keeper asking to pay the fine, the latter can tell them to refer back to the driver.

 

Now how does that relate to clamping? I imagine the driver agrees to be clamped if he doesn't comply to sign's t&c but what if again, the driver is not the registered keeper? Are clampers allowed to clamp and retain possession of the keeper's property when the the latter did not enter any contract? Could the keeper say his car has been effectively stolen?

 

I hope you understand what I mean.

 

Have a read through the guide. The answer to this is that clamping is deemed to be a modern application of damage distress feasant which is a remedy for trespass and not a remedy for a breach of contract. In medieval times it was the owner of the livestock who paid the damages caused by his livestock. In modern times it is, ultimately, the responsibility of the owner to pay the "damages" and thus recover their property.

[pin1onu]

Does anyone know of the specific section in the PSI Act that states this?

It's not defined in the PSI Act. It's from the case law (Arthur vs Anker) which is as binding as statute law.

 

"A motorist who trespassed by parking his car on private property having seen a warning notice there that a vehicle parked without proper authority would be wheel clamped and released on payment of a fee, was to be taken to have consented to the effect of the notice, provided that the release fee was reasonable, the vehicle was released without delay when the motorist tendered the fee and there were means by which the motorist might communicate his offer of payment.

[pin1onu]

 

You should also be aware that according to:Regulation 7 which deals with aggressive and unfair trading practices:-

You should put in what regulations you are quoting from. Its not clear from your mail.

Edited November 3, 2008 by pin1onu

[pin1onu]

hi

last year i recived 2 PCNs i paid one buy check but disputed the other, bailffs clamped my car in december so i paid £700 for the disputed pcn as i recived no letters, the bailff then told me i had another outstanding PCN for the one that i paid by check... i sent en email to the parking service and they replied by sending me a letter asking for proof.... i then sent them a letter stating that i had not recived no corrspondance telling me that the PCN was not paid!

i have looked at my bank statements and the amount was not taken out my bank. I have not receive any letters since dec only having my car clamped and towed away today!

surely they are at fault as well for not sending any warnings.... shouldnt the Bailff given me some time before toing my car? what do i do now i cant afford to get my car released?

 

help

You should post this in its own thread as it's not really relevant to this sticky which is for clamping on private land.

 

Clamping for unpaid PCN's is covered by legislation and there are strict procedures to be observed.

[pin1onu]

The advice from the guide is that clamping/towing are in the eyes of the SIA the same activity, i.e. distress feasant (for which a license must be held).

 

Under the case law a vehicle must be released once an offer to pay has been made. So even if a tow truck has been dispatched it is irrelevant.

 

If they are still threatening to tow it away I would sit in it and call the old bill. Once they arrive inform them you will pay the original fee stipulated and indicate that you have made the offer.

 

The police can threaten both sides with a breach of the peace.

[pin1onu]

Can I transfer the car to the immobiliser or the land owner? How can I get details of the land owner?

Land owner details can be obtained through the land registry. Land Registry - Land Registry

[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)

[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.

[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

[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

[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)