Recovery Fee Following Theft of Vehicle

[mightymouse_69]

I am not sure if this issue is still ongoing?

 

The following case is important:

 

Clarke v Ryley and Another [2001] All ER (D) 368 (Jun)

 

The Court of Appeal found that Section 99 would apply to stolen cars:

 

The conclusions that I have come to are that the correct question is not whether the vehicle has in fact been abandoned but whether, in the wording of reg 4, it has been left in such a position as to appear to a police constable to have been abandoned. As the learned recorder said in the course of his judgment, the scheme and purpose of the legislation is to enable swift action to be taken to remove and protect vehicles. That is a necessary and sometimes difficult and time-consuming task for the police. Here there was no evidence before the judge that it did not appear to the police constable who found the stolen car that the vehicle had been abandoned.

 

Lord Justice Longmore

 

You will notice the part in bold is very similar to Buzby's argument.

 

However, one may still have a claim. Longmore LJ said:

 

...before anyone can launch a claim against the police it is necessary for such a claimant to prove to the satisfaction of the court that it either did not appear to the relevant police constable that the vehicle had been abandoned or that, if it did so appear, it was unreasonable for it to have so appeared to the police constable.

 

So, to be successful, you would have to show that it would not appear to the relevant constable that your car was abandoned. How do you do this? Well, I haven't a clue - it would depend on the facts.

 

In the above case, the vehicle was stolen. It was reported stolen and the following day it was found by the police. The car was collected by a recovery firm. The facts seem reasonably similar to the OPs. The Court Of Appeal dismissed the case.

 

So following that precedent, I would say that the OP doesn't have a chance.

[pin1onu]

Hang on MM.

 

This is a slightly different case. The police wanted to take the car for forensic examination. Surely this wee detail makes the reason as for towing the "investigation of a crime" rather than simple abandonment. Small difference but the sort of thing that parasites....sorry lawyers thrive on.

 

OP Might be worth posting on Pepipoo and getting an opinion over there as well

[sailor sam]

Hang on MM.

 

This is a slightly different case. The police wanted to take the car for forensic examination. Surely this wee detail makes the reason as for towing the "investigation of a crime" rather than simple abandonment. Small difference but the sort of thing that parasites....sorry lawyers thrive on.

 

OP Might be worth posting on Pepipoo and getting an opinion over there as well

 

I was just about to suggest that MM reads posts 13 & 20 which already points this out!

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful.

[mightymouse_69]

Well, the OP must prove that the car was recovered merely for the purposes of it being forensically tested rather than because it appeared to be abandoned after the theft.

 

As I said in my post above, doing so may be challenging.

[sailor sam]

Well, the OP must prove that the car was recovered merely for the purposes of it being forensically tested rather than because it appeared to be abandoned after the theft.

 

As I said in my post above, doing so may be challenging.

 

Can you qualify that statement? How do you know that?

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my reputation button at the bottom of my profile window on the left if you found my advice

[mightymouse_69]

I think you may have misunderstood what I meant, so I will rephrase it.

 

To be successful, the OP must show to the court that the car was not removed because the constable believed it to be abandoned but was only removed in order to carry out forensic tests.

 

If it is not the case that the car was removed merely for forensics, than the OP would have to (as I said above) show that it would not appear to the relevant constable that your car was abandoned (and if it did so appear, this appearance was unreasonable.)

 

I suspect (and I stress that this is just me making an assumption) that the police will respond with something along the lines of: "The car was found abandoned and was recovered in accordance with X Act and taken to XYZ Garage where it was forensically tested..."

 

I am not saying that it is impossible for the OP to claim. I am just saying that it may be difficult and involve a bit more investigation. This would lead the OP to ask himself - is it worth it?

[Wriggler7]

The Police have to try to discover who the thief was, to do that, they need to be able to examine the vehicle in an appropriate and secure location.

 

In the first instance, insurance should cover the cost of recovery & storage. If the thief is convicted, the Court will almost certainly order that he pays proper compensation, including the recovery costs. The officer putting the case together needs to be told what 'compensation' is required.

 

The sad but true point with any crime is that the victims of crime suffer loss and damage. If I were the recovery firm, I would want paying for the job, and I wouldn't want to wait for the uncertainty of a thief being caught. If the Police had left the car unattended, and it suffered further damage, they would be in trouble for neglect. Should they have got in touch with the RK? I think 'yes' and then I wonder if it was practical, and is it always wise? I don't profess to know, and I don't have the 'full facts' in this case.

 

I think the pragmatic thing to do is to pay the recovery firm, get the car back, then see what remedies are open to you.

[orge]

I've been a bit busy over the last week, but thanks for all the responses!

 

I'm trying to get a full text for the case that MM posted. It certainly seems to have some bearing on my own.

 

Of some relevance, I have obtained a copy of the audit document. This was filled out by the officer attending the scene and I've also spoken to him briefly on the phone. Consistently, I have been told that the car was parked normally on the road and the only distinguishing feature would have been that it was unlocked. I'm not sure whether this would actually help in an argument that counters the Clarke vs Ryley case, but it's about all I've got.

 

Also of relevance, the audit document indicates the Police intentions regarding the vehicle. The following boxes are ticked:

Reason for removal: Stolen

Other unticked options were:

Illegally parked - breakdown/obstruction/danger

RTC

Suspect Stolen

Burnt Out

Police Seizure (PACE, Death, Police Reform Act, Uninsured)

Owner Request

Abandoned Vehicle

 

Action Following Removal/Recovery, ticked:

Fingerprints/Tapings examination (SOC)

 

Other unticked options were:

Forensic Examination (full covered recovery on authority of FIM/SOC Examiner)

Mechanical Examination

Identification Examination

 

Also, vehicle released following examination is ticked.

 

The address of the registered keeper is noted on the form, but there is no contact telephone number.

 

Again, I'm not sure how the contents of this form could be used to create an argument that the officer could not have known it was abandoned by looking at it. It's pretty obvious that they have recovered because I reported it stolen, but "obvious" is not legal argument...

 

I can't say anything definitive regarding the distribution of funds by the arrangement between the police and the recovery company. However, I spoke at length to the manager of the yard and gave me the impression that the £150 did not go directly to his company and that they received some percentage of what was paid. Of course, he wouldn't elaborate on details, but I wasn't left with much doubt that the police take something to cover their "operating costs".

 

Perhaps the situation in scotland is different, as it appears to be more centrally organised. However, in the UK, each regional police force is free to negotiate a contract with one (or more) recovery firms. The law they are hiding behind, imho, stipulates a standard charge for recovery (£150). If there is the freedom for a police force to negotiate (a potentially lucrative and fairly steady) a rate for the recovery of each vehicle, why would they not barter with the recovery agent? This argument would seem to be based on the assumption that police forces are inherently altruistic and have no interest in swelling their coffers through stealth taxation (parking fines, speeding tickets etc...)? Of course, this is not an argument based on facts, but apply occam's razor and you'll get a feeling in your gut.

 

Thanks again!

 

James

[mightymouse_69]

James,

 

Here is a link to the case, I forgot to provide this when I first quoted it:

 

Clarke v Ryley and Another [2001]

 

To have any chance of success, your argument will be that the car did not appear to the relevant constable to be abandoned (and if it did so appear, this appearance was unreasonable.)

 

You would have to argue that the car was instead recovered to facilitate the police investigation into the crime.

 

It may be argued by the other side that the car was indeed abandoned by the thieves - as was found at first instance in Mr Clarkes case. However, it was later held that:

 

It may not be that in every case of a theft it will necessarily be right for a police constable to conclude that a vehicle has been abandoned.

 

Note the word 'may'.

[orge]

Thanks Mighty Mouse,

 

I've had a read through that judgement and it's pretty bleak. As you say, it's very difficult to see how you could prove anything regarding the officers perception of the car to be "abandoned". Is this purely the appearance of the vehicle or does the prior knowledge that it has been stolen play any part?

 

The closing comments from Justice Carnwath seem to suggest that the Police are entitled to do whatever they feel is best because, as they are a public authority, they are surely acting in our interests!?

 

Can't say I'm too happy about the implications of this judgement, but thanks for the heads up.

 

James

[orge]

I've just found something interesting...

 

Section 99 only concerns the removal of vehicles from the road. However, it is section 102 which deals with the right to charge for its removal. Here is the relevant section:

 

102.Charges for removal, storage and disposal of vehicles.— (1) The provisions of this section shall have effect where a vehicle—

(a)

is removed from a parking place in pursuance of an order to which section 101 of this Act applies, or

(b)

is removed from a road, or from land in the open air, in pursuance of regulations under section 99 of this Act.

(2) In any such case—

(a)

the appropriate authority shall be entitled to recover from any person responsible such charges as may be prescribed in respect of the removal of the vehicle;

(b)

the chief officer of a police force or a local authority [F433other than a London authority] in whose custody any such vehicle is during any period shall be entitled to recover from any person responsible charges ascertained by reference to a prescribed scale in respect of that period; F4

 

However, looking down, here is the definition of a "person responsible":

 

“person responsible”, in relation to a vehicle, means—

(a) the owner of the vehicle at the time when it was put in the place from which it was removed as mentioned in subsection (1) above, unless he shows that he was not concerned in, and did not know of, its being put there;

(b) any person by whom the vehicle was put in that place;

© any person convicted of an offence under section 2(1) of the Refuse Disposal (Amenity) Act 1978 in consequence of the putting of the vehicle in that place;

 

 

Seems like it is down to the police to catch the thieves and recover their costs from them?

 

I look forward to hearing people's opinions on this.

 

Thanks again,

 

James

Edited September 24, 2010 by orge

[buzby]

Even when the police take it for a forensic examination, I'm at a lostt to understand why (I believe you think) this should be undertaken at the police/taxpayers expense, and not that of the the car owner or insurer. Perhaps in the past there was money where this could be undertaken, but I'm sure we're not far away where fingerprinting, photography and DNA testing will beome a chargeable 'service' and the 'customer' obliged to pay for it, even though they may not have wanted/required or requested it. Until then, vehicle recoveries are billed to the owner and usually paid by insurers.