Clamping to be outlawed on private land

[DBC]

The BPA have admitted as much:-

 

Patrick Troy, chief executive of the BPA, which represents 680 organisations in the parking and traffic management industry, said: "The Government's plans are a charter for the selfish parker. We urge the Home Office to tightly regulate the private parking sector, instead of throwing the baby out with the bath water.

 

"Clamping provides a last resort to landowners who are faced with persistent offenders and ticket evaders."

 

That's the same Mr. Troy who admitted in front of a House Of Commons Committee that private parking tickets are unenforceable.

[JonCris]

Of course they can, you just might not be aware of it. If their 'agent' is seen to have been acting illegally and/or defrauding them, they can indeed pursue this. As for losses incurred by their customers, I agree they'll not be interested in this, but there's no level playing field. Whoever has the most money, will get the representation they deserve.

 

NO ONE can opt out of their liability for their agents activity. Any indemnity (contracting out) between agent & employer is of no concern to the claimant they are not a party to it & can still sue both.

 

The basic premise is that an employer should be responsible for the actions of a servant or agent who is acting for his benefit

[lamma]

I bet the phones of the SIA's Vehicle immobiliser group are red hot.

 

http://www.sia.homeoffice.gov.uk/Documents/networks/vehicle-immobiliser/sia_vi_network_notes_4.pdf

 

I wonder if the SIA have any staff whose dedicated job function is clamping. They could save a few bob there.

[JonCris]

Trouble is clamping is a 1st response for most of his members

[Al27]

Wouldn't be surprised to see the whole SIA go at some point.

[lamma]

I agreed.

Chocolate teapot.

[Old Snowy]

NO ONE can opt out of their liability for their agents activity. Any indemnity (contracting out) between agent & employer is of no concern to the claimant they are not a party to it & can still sue both.

 

The basic premise is that an employer should be responsible for the actions of a servant or agent who is acting for his benefit

Quite. Although this assumes that the the parties can be classified at law as agents or servants. There is a third classification, that of independent contractor from whom a vicarious liability does not transfer to the same extent (if at all) nor in the same manner as it would were the matter to involve an employee, agent or servant. This may be overcome and a liability transferred if it can be shown that the principal exercised a level of supervision and direction of the contractor's work to effectively bridge the independence of their relationship.

 

However, the vast majority of clamping companies would appear to act without that level of supervision and/or direction (indeed few would want that level of observation) and are unlikely to be classed as servants or agents. In the relatively small number of cases where landowners have been successfully sued alongside a clamping firm research will clearly show that the landowners have directly involved themselves in the cases - thereby bridging the independence "gap".

 

The defining case is relatively old and whilst it has attracted criticism is nevertheless seen as valuable. Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191.

[DBC]

Some form of organization should be in place to take over the other functions of the SIA, such as the regulation of security guards and door bouncers. This is especially important when it's most likely that a lot of ex-clampers will end up in those jobs. We all know what sort of people they are, and they need close supervision.

[JonCris]

Quite. Although this assumes that the the parties can be classified at law as agents or servants. There is a third classification, that of independent contractor from whom a vicarious liability does not transfer to the same extent (if at all) nor in the same manner as it would were the matter to involve an employee, agent or servant. This may be overcome and a liability transferred if it can be shown that the principal exercised a level of supervision and direction of the contractor's work to effectively bridge the independence of their relationship.

 

However, the vast majority of clamping companies would appear to act without that level of supervision and/or direction (indeed few would want that level of observation) and are unlikely to be classed as servants or agents. In the relatively small number of cases where landowners have been successfully sued alongside a clamping firm research will clearly show that the landowners have directly involved themselves in the cases - thereby bridging the independence "gap".

 

The defining case is relatively old and whilst it has attracted criticism is nevertheless seen as valuable. Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191.

 

Correct however I think they employee/agent can be established in that whilst there might be no constant supervision the landowner will almost certainly be aware of whats going on which would negate their argument. Also don't forget the matter of Hawley

 

If a landowner are negligent in who they engage liability can be imposed

 

A good read http://en.wikipedia.org/wiki/Mattis_v_Pollock In particular note that the employer was aware of the bouncers tendencies

Edited August 18, 2010 by JonCris

[lamma]

If consideration passes between them in any of its many forms then privity is gone.

[Old Snowy]

Correct however I think they employee/agent can be established in that whilst there might be no constant supervision the landowner will almost certainly be aware of whats going on which would negate their argument. Also don't forget the matter of Hawley

 

If a landowner are negligent in who they engage liability can be imposed

 

A good read http://en.wikipedia.org/wiki/Mattis_v_Pollock In particular note that the employer was aware of the bouncers tendencies

Accepted but there was also a clearly defined employer-employee relationship and the matter hinged not on whether such a relationship existed but whether vicarious liability extended to the circumstances of the case which involved a doorman absenting himself from work, arming himself with a knife and attacking the appellant.

 

A contractor, which is what the vast majority of clamping companies are, is not however an employee.

 

Slessor LJ said in Honeywill:

 

"The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor"

 

I would suggest that the legal gulf to be bridged between a landowner and a clamping company, were they to be successfully sued on the basis of vicarious liability, is as wide as that bridged in Mattis.That is not to suggest that it cannot be bridged but obtaining evidence of an active and direct involvement in the day to day working of his contractor on the part of a landowner is going to be difficult. It would probably be sensible for any prospective applicant to look to acquire evidence of the relationship between a clamper and the landowner from the outset.

 

Privity, in this regard is a separate issue.

Edited August 20, 2010 by Old Snowy

[pin1onu]

AIUI damages for trespass should be paid to the landowner. As a general rule clamping company's do not hold rights to the land and therefore would have no right to the money paid. If there is an agreement between the clamper and the landowner that they will keep the release money in lieu of payment for their services, that would not release the landowner from his obligations and would have no bearing on proceedings as the person clamped is not privy to that contract. IMV they are jointly liable and should both be sued.

 

I do agree that the relationship between the landowner and the clamper is important - the clamper must have permission from the landowner. There have been clampers prosecuted for enforcing on land they do not have permission to do so on.

[green_and_mean]

We keep hearing about all those cars that are supposed to park on other people's driveways. has this ever actually happened.?

 

Yes it obviously has or I would not have previously stated it had.

[Colin OW]

Hello,

Having read through all the posts, I detect a "bit" of cynicism.

Surely, if Clamping is banned or at the very least made illegal, whether or not companies get around it, it has at the very least given more ammunition to fight with. Even against parking along the lines of unreasonable costs for "damages"

Can't see that we are on a loser ?

Colin OW

[green_and_mean]

It will be interesting to see how this turns out are they going to ban towing for example? If so whats to stop somone parking their car blocking an emergency access route on a housing estate for example and going on two weeks holiday? If they ban any form of imobilisation will you be allowed to lock someone in a private car park without commiting an offence? If its just clamping thats banned I can see a few PPCs buying more tow trucks.

[david1605red]

Private clamping and towing will be illegal. Both clamping and towing can still be carried out by official bodies (Police, Councils, etc) so in the example given of the blocked access route, plod would arrange the towaway.

 

PPCs won't be buying any tow trucks, they'll be too busy taking down their illegal signage then signing on at the Jobcentre.

[Zamzara]

It will be interesting to see how this turns out are they going to ban towing for example? If so whats to stop somone parking their car blocking an emergency access route on a housing estate for example and going on two weeks holiday?

 

It will depend how the legislation is worded, but I would be surprised if it prevented using reasonable force merely to move the vehicle no further than necessary.

 

There is a huge difference between that and stealing the vehicle until a large blackmail demand is paid. Outlawing that is the objective here.

[JonCris]

I suspect impounding the vehicle in order to make demands will not be allowed It will probably be moved to the nearest road & the landowner having paid for the service able to demand recompense from the motorist

[pin1onu]

I suspect impounding the vehicle in order to make demands will not be allowed It will probably be moved to the nearest road & the landowner having paid for the service able to demand recompense from the motorist

I agree. Under existing legislation a vehicle displaying a blue badge is supposed to be immune from clamping and towing. However if the vehicle is creating an obstruction or is parked across a fire exit or similar - it can be moved to another location within the vicinity.

[JonCris]

I agree. Under existing legislation a vehicle displaying a blue badge is supposed to be immune from clamping and towing. However if the vehicle is creating an obstruction or is parked across a fire exit or similar - it can be moved to another location within the vicinity.

 

Correct but the 2nd location should be visible from the 1st

[Bigdebtor]

It will be interesting to see how this turns out are they going to ban towing for example? If so whats to stop somone parking their car blocking an emergency access route on a housing estate for example and going on two weeks holiday? If they ban any form of imobilisation will you be allowed to lock someone in a private car park without commiting an offence? If its just clamping thats banned I can see a few PPCs buying more tow trucks.

 

Nicve to see England acting more fairly at last. Clamping on private land has been banned in Scotland since 1992 - and the country hasn't ground to a halt - just a few (alleged) blackmailing companies had to move south or turn to other forms of (alleged) extortion and/or blackmail.

 

If the rules have been broken then there is still full legal redress without the need to clamp or tow away. Towing away is still allowed when deemed necessary by the police or public sector parking authorities.

[Surfer01]

If they make it legal for PPC to issue tickets, how woudl they enforce one when you overstayed your welcome at a supermaket, parked in a manner where your wheel was on the white line or perhaps parked in a disabled or even mother and toddler bay accidentally due to markings that were hardly visible? What about people who live in a block of flats where a residential permit is required to be displayed and the the person forgets to place it on their windscreen.

To pass a law banning clamping should take no more than a month or so, but to legalise this sort of "ticketing" would open a real can of worms and take years for them to amend all the various laws and other linked regualtions and certainly would not be completed by next year. Easy for they to place the onus of the landowner stating that they should ensure that vacant land is fenced or gatd off to prevent public access.

[Bernie_the_Bolt]

I'm kind of expecting a mechanism to be explored that puts private land ticketing on an equal footing with DPE as currently practiced by councils. How they will make it work I haven't a clue but I expect it to be seriously looked at - more's the shame.

[buzby]

As far as Scotland is concerned, the ability to issue a financial sanction on private property is to be limited to the exclusive use of pre-designated (and registered with the Council) spaces for disabled users.

 

It does not open the door for any other imagined parking infraction on private land.

[Surfer01]

So you are saying that in effect the supermarket would need to have their car park registered with the local council before they can enforce a PPC ticket. I wonder if the supermaket would be bothered with registering the car park.

In the event that they are "licenced" to issue a ticket and one refuses to pay the ticket, as it is not criminal but civil, I assume this would mean that it would need to be dealt with by the small claims court if it was taken that far but more than likely a DCA wili be used in the first instance. I can see some issues arising from this like will the onus be on the RK to identify the driver of the vehicle etc for a civil issue.

As no doubt England / Wales will try and adapt this law, is there a link where one can obtain more information? I think English law may be more complex than Scottish law.

Correct me if I am wrong, but this idea was mooted several years ago in Scotland and is only being implemented sometime in the future so any amendments to English law will take forever and a day.