clamped!!!! Help...can i claim back...

[veester]

Short story.

 

A) Went to a mates place

B) Parked and went inside to get a apss

C) We got chatting, and i came out with the pass and had been clamped

D) Called the clamp guy - tried to explain - showed the pass

E) Told i had to pay and write in

F) Paid and wrote in, with a signed letter from my pal saying i had just gone into his flat to get a pass - clamper ignored the letter

 

So,

A) Plan is to again write in 'registered post' - same letter

B) But saying if they don't respond i will issue summons for fine + cost etc.

 

Sound reasonable?

Any time limitation on this? I would imagine the same statute of 6 years to claim applies?

 

Thanks

[Josie8]

bump

[My Real Name]

Have a quick read of the sticky on clamping.

 

Assuming this is all on private land - The issue is whether or not you consented to allow your vehicle to be clamped.

 

In order for consent to be implied, a number of conditions must be met - these are dealt with in the sticky, but briefly, concern the presence of clearly visible and comprehensible signs, and reasonable charges for release.

 

Furthermore, clamping may only be lawfully performed by SIA registered operatives, who must complied with specific legislation (again, this is in the stickies).

[buzby]

As you've paid them 0 the chances of you getting your money back are slim (unless you were clamped in Scotland). There it is classed as extortion, (by depriving the owner of the use of his vehicle).

 

Even if you took them to court for the recovery of your 'fine', the fact you didn't display the permit when you left the vehicle would leave yo liable until you did - and it was just tough you were spotted on the way in. These firms don't make a point about giving refunds - and it one of the reasons they don't accept cheques!

[My Real Name]

What if veester did not consent to be clamped? That would make it extremely likely that (s)he would he their money back, even if it did mean taking it all the way to a court.

[buzby]

Who does? But the issue here would be if you didn;t consent, you wouldn't have paid - and let the courts decide that way. Making payment would be taken as full admission, and pursuing for a refund simply a tactic. Yes, it remains extortion, but once you pay up - the cost of getting it back is neither guaranteed or an easy ride, unless the clamping co don;t turn up in court.

[pin1onu]

What if veester did not consent to be clamped? That would make it extremely likely that (s)he would he their money back, even if it did mean taking it all the way to a court.

The case law is based around the fact that if you park in defiance of a sign you can expect to be clamped.

 

Even if you don't consent in actuality if the signs are clear and visible then you will be deemed to have given the necessary consent by reason of you parking there. That is clearly stated in Arthur vs Anker and further clarified by Vine.

 

I'm sorry for the OPs trouble.

 

In my view in this case the grounds for obtaining a refund via the courts

 

1. Convincing a judge that the signs were unclear.

2. Failure to conform with PSI regulations

3. Determining the loss caused to the landowner by his parking there and convincing a court that any amount above this is penal and therefore illegal under case law.

[My Real Name]

Who does?

Consent can be implied from adequate signage (Anker etc.)

 

But the issue here would be if you didn;t consent, you wouldn't have paid - and let the courts decide that way. Making payment would be taken as full admission, and pursuing for a refund simply a tactic. Yes, it remains extortion, but once you pay up - the cost of getting it back is neither guaranteed or an easy ride, unless the clamping co don;t turn up in court.

 

In Arthur versus Anker, Arthur never paid, so the subject is moot. In Vine, the plaintiff did pay the fee, even though she did not consent to being clamped, as she did not see the signs. This points to a clear precedent that, if no consent is implied, it doesn't matter if you pay pay a release fee.

 

Even if you don't consent in actuality if the signs are clear and visible then you will be deemed to have given the necessary consent by reason of you parking there. That is clearly stated in Arthur vs Anker and further clarified by Vine.

Which is my point - If the signs aren't there, consent may not be inferred, rendering the clamping unlawful.

 

[Edit]

 

3. Determining the loss caused to the landowner by his parking there and convincing a court that any amount above this is penal and therefore illegal under case law.

Is that strictly relevant? After all, the fee is for the release of the clamp, not as a penalty for parking / breaching and parking "contract"? Isn't there a danger in mixing tort & contract?

[Steve__M]

In the two cases (Vine and Arthur v Anker), the victims were said to have trespassed. But if you are invited onto land by someone who is entitled to do so (proven by issue of a permit), can the person be said to have trespassed?

 

Vine vs Waltham Forest

 

To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the recorder might have reached such a conclusion about the appellant’s state of knowledge, but he did not do so.

[pin1onu]

Is that strictly relevant? After all, the fee is for the release of the clamp, not as a penalty for parking / breaching and parking "contract"? Isn't there a danger in mixing tort & contract?

Distress feasant is holding property until damages caused by the trespass have been paid. If the losses incurred by the landowner are nil or very small then IMO the penal aspect of the fees must be addressed. Part of the problem is that what constitutes a reasonable release fee has never been established.

[veester]

Some interesting points raised here all.

A) The clamper would not release the car unless paid

B) I complained there and then - showed the pass - he refused to remove unless paid

C) Argue-ably he should have used discretion, but obviously saw money and the firm "national clamps" aren't well known for the complaints handling.

D) I've written twice now and been ignored.

[Steve__M]

Did you get a receipt with all the required info? Were the signs visible? And what did the signs say?

[veester]

Yes, Yes - Cars will be clamped.

 

At the end of the day if i am going to get a pass from my mate who lives in the flat and come out side and show the pass; not accepting it is in my view (and potentially the courts) bloody minded...

 

If you parked on the street to go and get change you would argue the toss with a Parking Attendant as you buy the ticket....

 

Surely...

[My Real Name]

...

If your letters are being ignored, your only recourse would be to make a claim in the county court, naming the clampers and the land owner as joint defendants.

 

Your claim would be along the lines that you did not consent to have your vehicle clamped, and that the demands for a fee to remove the clamp were unlawful.

 

What if the clampers have a photo of the car with no pass displayed? How are you going to demonstrate that no consent may be inferred?

[Steve__M]

If your letters are being ignored, your only recourse would be to make a claim in the county court, naming the clampers and the land owner as joint defendants.

 

Your claim would be along the lines that you did not consent to have your vehicle clamped, and that the demands for a fee to remove the clamp were unlawful.

 

What if the clampers have a photo of the car with no pass displayed? How are you going to demonstrate that no consent may be inferred?

 

It is a matter of fact that Veester has not trespassed on the land as he was there with permission of his friend as evidenced to the clamper by the issuing of a parking permit.

 

(I should say I have no special knowledge of clamping law)

[My Real Name]

It is a matter of fact that Veester has not trespassed on the land as he was there with permission of his friend as evidenced to the clamper by the issuing of a parking permit.

I would have thought that, if veester was to go to court, (s)he should be sure of the facts surrounding the issue, and be able to demonstrate / evidence any claims he makes.

 

For example, is his / her friend the actual landowner / freeholder of the parking space? Does his / her friend have the authority to grant access rights to veester? Is the clamping being performed on a lawful basis?

 

Taking someone to court should not be done on a whim, and, so far, the OP does not seem to have provided enough information that might warrant a claim, let alone give him / her a strong case.

[Steve__M]

I would have thought that, if veester was to go to court, (s)he should be sure of the facts surrounding the issue, and be able to demonstrate / evidence any claims he makes.

 

For example, is his / her friend the actual landowner / freeholder of the parking space? Does his / her friend have the authority to grant access rights to veester? Is the clamping being performed on a lawful basis?

 

Taking someone to court should not be done on a whim, and, so far, the OP does not seem to have provided enough information that might warrant a claim, let alone give him / her a strong case.

 

I assume that the issue of a permit meant that Veester's friend did have rights to grant such permission. The specific wording on the signs, and the terms of Veester's friend's agreement with the landowners may be important.

 

Of course Veester should not go to court on a whim. Veester hasn't said what the release fee is though. Depending on Veester's determination I would say a whim is anything more than about 50 quid in this case

[veester]

Good points guys

 

A) my friend is a flat owner and holds 2 passes for the space supplied with his property

 

B) I used to park there before the permit were issued and park there now (with a permit)

 

C) I even sent a letter to NClamps with an accompanying letter from my friend setting out the situation as i have described here; i.e i went into get a pass and came back out, we even presented the pass to the clamper to ask him to see sense.

 

D) Fine was £100 for release, i have reciept and copies of registered delivery of letter.

 

E) They have now responded however when i threaten court; stating they have investigated thourghly, and they are not willing to entertain any correspondence.

 

Though quite how they could investigage in a day is beyond me.

 

F) The clamping is lawful as it is paid for by all in the block as part of the 'service charge'. Regardless of this we are talking about discretion given mitigation in place, and i think the evidence and facts here-in warrant some relief from the clamper (who are essentially on a money making exercise).

 

They is no ombudsman that governs there complaints process and thus they can take advantage and be unfair in there actions; the only recourse is then court.

[buzby]

I'm interested in this 'service fee' levied on residents to pay for the clamping service. You cannot but admire their efficiency, but of the business models I've seen these clamping firms provide their services at no charge, they only require exclusivity - so the cost of the service provided is taken directly from the transgressors, not the ground owner.

 

But back on track - if they've got your money and refuse to refund the release fee, taking them to court is the only option - and it would really depend on the day what the result would be. Of course, they may not turn up and you win by default, but enforcement by bailiffs is not guaranteed and simply adds to your expenses if recovery isn't possible.

[veester]

Such a valid point Buzby; i'd take them to court just on the basis of they way they behave and there attitude.

 

It would be worth it regardless.

[Zamzara]

Consumer regs supersede the earlier case law anyway (which only applies to trespassers, not visitors on the land with permission.)

 

Clamping fits the definition of an illegal aggressive practice and should be reported to trading standards. There have been no prosecutions since the law was changed in April, but somebody has to be first.

[My Real Name]

Good points guys

 

A) my friend is a flat owner and holds 2 passes for the space supplied with his property

Are the passes transferable? Does the agreemment that your friend has with the landowner confer the right to allow others to park in the space?

 

B) I used to park there before the permit were issued and park there now (with a permit)

This probably won't prove relevant.

 

C) I even sent a letter to NClamps with an accompanying letter from my friend setting out the situation as i have described here; i.e i went into get a pass and came back out, we even presented the pass to the clamper to ask him to see sense.

The person doing the clamping probably does not enjoy that level of discretion in his job.

 

D) Fine was £100 for release, i have receipt and copies of registered delivery of letter.

£100 would probably be considered a reasonable release fee, on the basis of the comments made in Vine versus Walthamstow.

 

E) They have now responded however when i threaten court; stating they have investigated thourghly, and they are not willing to entertain any correspondence.

This is not surprising, but if you are considering going to court, I would suggest following the usual protocols of seeking a settlement beforehand.

 

F) The clamping is lawful as it is paid for by all in the block as part of the 'service charge'. Regardless of this we are talking about discretion given mitigation in place, and i think the evidence and facts here-in warrant some relief from the clamper (who are essentially on a money making exercise).

That doesn't mean that the clamping is lawful, just that the landowner is employing them, making the landowner jointly liable for any claim.

 

The facts are still very light, and don't address the issues of signage, and implied consent.

 

There is no ombudsman that governs there complaints process and thus they can take advantage and be unfair in there actions; the only recourse is then court.

If the clampers were operating outside of legislation and SIA guidelines, the clamping is unlawful, so there is that level of governance at least.

 

If I rolled up to your friends place, would I see big, unambiguous signs notifying me that I would be clamped, were I to park there?

[Steve__M]

Most of the rules, regulations and case law are about defining what has to be done to implement clamping of trespassing vehicles in a lawful way.

 

The vehicle has to be trespassing, and the clamping operator has to operate within these rules (adequate signage, SIA cleared, issuing tickets etc.).

 

I guess I would be looking carefully at what Veester's mate's rights were with respect to inviting people onto the land when he moved in, and whether he has agreed (implicitly or otherwise) to these rights being modified.

 

Also, can you get a photo of the signs?

[veester]

Sorry - My Real Name et al - been away.

 

If you rolled up - yes you would see 1 pretty clear, and 2 less ambgious signs.

 

I was visiting my friend who is given 2 passes to place in his or visitors vehicles are required.

 

With regards to signage, i can do, though they have changed signs recently - from white background to YELLOW!