Clamped in my own parking space!

[stef787]

I live in a block of flats which has a gate protected car park. A letter arrived on wednesday 3rd february saying that a parking control system was to go live on the friday 5th february.That gives us 48 hours notice... I was away from home most of that week and came home at 8pm yesterday. At 9pm there was a sting operation and 4 cars were clamped and one towed away even though they were all parked in their correct parking spaces, I was parked in my own bay (bay 17 for flat 17!) .I called my landlord ( or flat management company) who is going to call them this morning and explain them that i was away. They asked me to pay £285 to release the clamp (£80 parking notice, £205 clamp release fee), or £570 for towed cars. Please if anyone can help... Don't you think that £285 is excessive for a clamped car? Do you think that I will be successful If I appeal later?

 

Thanks for your help

[jed52]

Get someone to cut it off for you and stick it up their ***es.

Thats what I would do.

jed

[Al27]

They have no right to your money. Who are these clowns? Tell them to get the clampers to remove the clamp or you will deduct £285 from the service charges / rent.

[stef787]

They finally agree this morning to reduce it to £125. I'm going to pay that amount and appeal. If it is unsuccessful, I will deduce it from the rent. Is it legal to do that?

[lamma]

if you pay they will refuse your appeal. what does your lease say about parking ? exact wording please.

[Huff&Puff]

There is no appeal, they will always turn it down, as it is their only source of income. If you pay then you can kiss the money goodbye unless you take the to the Small Claims Court, which is a lot of hassle.

[crem]

They have no right to your money. Who are these clowns? Tell them to get the clampers to remove the clamp or you will deduct £285 from the service charges / rent.

 

I agree with Al27 on this one. If you pay them anything, (which I wouldn't want to as I think I prefer the angle grinder method), but if you do, deduct it immediately from your next rental. The clampers are acting on behalf of the landowners therefore it is reasonable to assume that the clamper will already have paid your £125/£285 direct to the landlord.

[pin1onu]

I live in a block of flats which has a gate protected car park. A letter arrived on wednesday 3rd february saying that a parking control system was to go live on the friday 5th february.That gives us 48 hours notice... I was away from home most of that week and came home at 8pm yesterday. At 9pm there was a sting operation and 4 cars were clamped and one towed away even though they were all parked in their correct parking spaces, I was parked in my own bay (bay 17 for flat 17!) .I called my landlord ( or flat management company) who is going to call them this morning and explain them that i was away. They asked me to pay £285 to release the clamp (£80 parking notice, £205 clamp release fee), or £570 for towed cars. Please if anyone can help... Don't you think that £285 is excessive for a clamped car? Do you think that I will be successful If I appeal later?

 

Thanks for your help

Please see the clamping guide in the stickies section. It details your rights and has a specific section to cover this sort of situation.

 

It sounds as if they have made a unilateral change to the contract without consulting you. This is a definite no-no in contract law.

 

I would be ringing the management company and telling them you will be holding them liable for any charges incurred and that they need to rein in their clampers.,

 

I would agree that £285 is excessive as there losses are nil.

 

Take this one to court if you need to. Whatever you don't pay the clampers.

[stef787]

The problem is that there is no mention of" allocated parking bay" or even the word "parking" doesn't appear in my contract. Can I still write to the management company and ask them to refund the clamping charge?

[crem]

Well if there is no mention of the parking space or any restrictions on how/where you park then they are on a hiding to nothign over this arent they.

[Al27]

Have you spoken to the management co personally on the phone?

 

Tell them you have been away and have not seen any letter and legally have not had any opportunity to consent to being clamped.

 

I'd concentrate on them for the time being.

[gezwee]

Have you spoken to the management co personally on the phone?

 

Tell them you have been away and have not seen any letter and legally have not had any opportunity to consent to being clamped.

 

I'd concentrate on them for the time being.

 

I've got 3 diamond discs and a petrol disc cutter up the shed if any help, sod 'em is all I can say.... would not entertain any correspondence at all

[jed52]

I've got 3 diamond discs and a petrol disc cutter up the shed if any help, sod 'em is all I can say.... would not entertain any correspondence at all

 

My sentiments exactly.

jed

[stef787]

Have you spoken to the management co personally on the phone?

 

Tell them you have been away and have not seen any letter and legally have not had any opportunity to consent to being clamped.

 

I'd concentrate on them for the time being.

 

This is exactly what I told them on friday night. They called a manager at London Parking control ltd to reduce the penalty to £125. There is no mention about parking on my contract, so even if I go to court i can't claim that I have rights to park there.

 

The management company said that there is nothing more they can do.

[lamma]

If you have been parking there already for a length of time then you still have a case.

[crem]

The management company said that there is nothing more they can do.

 

So who employed the clampers then if it wasn't the management company?

 

If they were employed by the management company (and I see no other way of them being contracted otherwise they would not be authorised to clamp) then EVERYTHING THEY DO is on behalf of their employer and the employer is totally responsible for the clampers actions.

[stef787]

If you have been parking there already for a length of time then you still have a case.

 

I have been parking there since i've been living here ( September 2009). I'm going to write a letter to the flat management company asking them to contact the clamping company to get a refund, or I will deduce it from the rent. The guy from the management company said that its all our fault because WE didn't display the permit. He asked me to prove that I was away for 48 hours , which I think is ridiculous!! The 48 hours notice wasn't enough to start a clamping system in our parking! He thinks that a letter left under a door(2 days before) was enough to make people aware of a new clamping system.

[lamma]

They still can't unilaterally change the terms. If you get over 50 percent of the residents on side you can kick out the management company.

[Al27]

At what point did you CONSENT TO THE RISK OF BEING CLAMPED?

 

Even if it wasn't your space, you have to have had an opportunity to consent. How could you move your car if you were never in the knowledge that it would be clamped?

 

No consent, no clamping release fee can be charged.

 

If you can't get anywhere with the management co, you'll have to send them a Letter Before Action and issue a county court claim.

 

Or cut the clamp off, which would be the best thing at the moment.

 

He asked me to prove that I was away for 48 hours , which I think is ridiculous!! The 48 hours notice wasn't enough to start a clamping system in our parking! He thinks that a letter left under a door(2 days before) was enough to make people aware of a new clamping system.

 

If you were away for 5 years and could prove it, you would still be in the situation of not being able to consent. The only proof you'd need in county court for your 48 hours away would be a sworn affidavit that you were at your parent's / friend's / brother's etc.

 

The clamper just clamps cars and takes money. He won't have a clue about the legality of it, so ignore his claptrap.

 

 

I have been parking there since i've been living here ( September 2009). I'm going to write a letter to the flat management company asking them to contact the clamping company to get a refund, or I will deduce it from the rent. The guy from the management company said that its all our fault because WE didn't display the permit. He asked me to prove that I was away for 48 hours , which I think is ridiculous!! The 48 hours notice wasn't enough to start a clamping system in our parking! He thinks that a letter left under a door(2 days before) was enough to make people aware of a new clamping system.

 

Read up on Vine vs Waltham Forest and tell them you will be relying on the case in court due to your inability to consent to being clamped. Enclose a copy of it with your letter if you want!

Edited February 7, 2010 by Al27

[pin1onu]

I agree with the point that Al has made. There could be no consent either by signage if you hadn't seen any signs. I've already made the point about unilateral changes to the contract. The appendix in the clamping guide makes the point.

 

I would caution you about the cutting the clamp off. Although technically they are trespassing against you car the courts do take a dim view of self help remedies. See Lloyd vs DPP. Of course if a clamp is cut off by person or persons unknown then you can't be done for it. If it were me I would want to be able to put my hand up and say not me guv if the old bill come asking.

[jkdd77]

I agree with the point that Al has made. There could be no consent either by signage if you hadn't seen any signs. I've already made the point about unilateral changes to the contract. The appendix in the clamping guide makes the point.

 

I would caution you about the cutting the clamp off. Although technically they are trespassing against you car the courts do take a dim view of self help remedies. See Lloyd vs DPP. Of course if a clamp is cut off by person or persons unknown then you can't be done for it. If it were me I would want to be able to put my hand up and say not me guv if the old bill come asking.

 

In Lloyd vs DPP the motorist was deemed to have consented to the clamping, [and therefore could not have honestly believed that it was reasonable to cut the clamp off], which is clearly not the case here.

 

In R vs Mitchell (2004), the motorist was convicted of criminal damage anyway despite not consenting to the wholly unlawful clamping. The Court of Appeal seemingly misdirected itself by incorrectly applying an objective test of the reasonableness of the defendant's actions.

 

Several solicitors have suggested that this precedent is per incuriam [in misinterpreting the plain language of section 5[3] of the Criminal Damage Act, and in failing to apply the clear interpretation of section 5[3] set by Chamberlain vs Lindon [1998] that a belief as to reasonableness need only be honestly held] and could be most definitely be overturned in the Supreme Court or ECHR, but that would be a lot of time and hassle.

http://www.webtribe.net/~shg/Criminal%20Damage%20Act%201971%20(1971%20c%2048).htm

 

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—

(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."

 

Criminal damage in English law - Wikipedia, the free encyclopedia

 

Section 5(3) of the Act states that it is immaterial whether the defendant's belief is justified as long as it is an honest belief, and therefore creates a subjective test to be assessed by the court or jury. In Chamberlain v. Lindon (1998),[12] Lindon demolished a wall to protect a right of way, honestly believing that it was a reasonable means of avoiding litigation. It was ruled that:

 

"In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, having regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held.[13]"

 

The case itself merely reaffirmed an earlier ruling from Jaggard vs Dickinson (1980), when a drunken individual broke into a stranger's house, honestly but incorrectly believing it to be a friend's house. The drunk was acquitted based on section 5(3).

 

Of course, if the victim cuts off the clamp in the dead of night, and does not admit anything, then it would be almost impossible for the police to prove the identity of the clamp-cutter beyond reasonable doubt anyway. My advice would be to cut it off, discreetly, or, better still, get a friend to do it.

Edited February 8, 2010 by jkdd77

[Al27]

Police probably won't be interested. You get let off without charge for all sorts of things nowadays anyway.

[jkdd77]

In this case, the clamping is so utterly unlawful, and violating your right to peaceful enjoyment of your own space, then the police are even less likely to get involved [and, in the unlikely event that it came to it, a "honest belief" defence is more likely to succeed with the average magistrate].

[lamma]

I agree.

[jkdd77]

I agree.

 

Hi Lamma,

 

For the avoidance of doubt, do you agree with my post #21, post #23, or both?

 

It certainly seems to me that, given:

1 the well-known tendency of cowboy clampers to phoenix,

2) the difficulty in locating and pinning down any landowner, (who may not even be responsible, as many cowboy clampers clamp without any permission from the landowner

eg: Clamping row erupts (From Salisbury Journal)

3) given the sheer time, stress and hassle involved in bringing a small claims case, even if successful, (which would not be reimbursed in any way, given the strict cap on costs in small claims) which would probably take at least 10 hours from payment to judgment, and in all likelihood this implicit lost time value is more than the cost of the clamp, if assessed at the statutory rate of £9.25/hr.

 

it would seem very plausible that a victim of an unlawful clamping would honestly believe that they are the victim of criminal blackmail (even if incorrect, the test is whether they honestly believe it), and therefore honestly believe (even if unjustifiably so) that self-help is reasonable under all the circumstances, therefore meeting the test of 'lawful excuse' under 5(2)(b).

Edited February 8, 2010 by jkdd77