Parking on Private Land - Trespass Notice

[Old Snowy]

What if you don't directly employ the company, say if it is by way of contract where they earn out of the issue of the notices on behalf of the landowner and the landowner agrees that these fees are his damage ?

That is trying to have your cake and eat it.

 

The only person who can suffer a wrong (and therefore claim damages) in this scenario is the landowner. He may quite properly delegate the actioning of proceedings to an agent but the original wrong must be suffered by and the damages be due to the landowner. If, and it remains to be seen that Proserve are empowered to act as the landowner's agent, the agent incurs costs, staffing, vehicle and cameras etc (whatever they may be) in the course of its normal business at the site then they are not costs linked to the alleged trespass and are not transmuted into damages simply because the landowner says so.

 

If a security company, such as Proserve, is permitted to retain any charges it secures from motorists on behalf of its principal then they are fees by way of a consideration for their services created by way of the contract between them and the landowner. If retaining fees, in the way suggested, is the only means by which the security company secures payment (and yet it incurs disproportionately higher costs in securing them) then, aside from questioning the business acumen of the company, it is a matter between it and its principal. The motorist has no involvement in the performance or otherwise of that contract and cannot be expected to. As such retained fees become a consideration then they also become liable to assessment for VAT purposes. (see VCS v HMRC [2012] UKUT 130 (TCC)).

 

There must be a connection between the putative tortfeasor's conduct and the damages sought. If all that is alleged is that a vehicle was parked (briefly it would appear) on a road which was presumably designed for the passage over and parking on it of vehicles then what harm, other than a technical trespass has been caused? Have crops been flattened, fences destroyed, road surface ripped up or kerbs crushed?

 

If damage was so imminent by the parking or a vehicle then what steps did the landowner take to prevent it? The fact that a vehicle parked (and it is highly unlikely to have been the first - otherwise why was the security company employed?) would be sufficient to show that the simple placing of yellow lines was insufficient for the landowner to show that he took steps to reduce his loss as he is required to do. Why wasn't someone posted at the spot, or in the vicinity to shoo potential parkers away?

 

Boiling it down to gravy, its a nonsense.

Edited August 5, 2012 by Old Snowy
tidying

[Old Snowy]

Attempting to impose a charge that is clearly a penalty and, in any event one that cannot be negotiated by the individual contractor is never going to fly whether one views it from the perspective of case law (Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Company Ltd [1915] AC 79) or that of the Unfair Terms in Consumer Contracts Regulations. Either the charge represents a genuine (and therefore quantifiable) pre-estimate of damages or it is a penalty. Attempting to use the concept of volenti or even distress damage feasant simply isn't going to work.

 

In any event, if damages are going to be claimed the claimant is going to have to demonstrate what positive steps he has taken to minimise his loss - as I have already alluded. Thinking that one might sit back and rely upon payments from chance transgressors to make good purported damage to your property when you have taken no steps yourself to reduce, minimise or eliminate any damage is going to have all of the aerodynamic qualities of a concrete glider.

[Old Snowy]

Is distress damage feasant still available to landowners as a remedy, although the Protection of Freedoms Act reports to stop the removal of cars from land ?

Yes, the concept still exists. However, distress damage feasant did not evolve as a means for withholding/removing vehicles but as a means of dealing with straying stock that caused damage to or ate crops on land. The concept permitted the retention of stock against reparation for the damage caused and has been subject of several attempts to use it as a justification for clamping/towing. Even limited research will uncover cases (albeit old ones) that deliver something of a "killer" blow in terms of their being used as a means of legitimising clamping. There must be quantifiable damage and quite how a car being parked in a car park causes damage one continues to wonder? Then of course there is the convention attached to the concept that means that one does not impound a man's horse. Might not this now be applied to a man's car?

 

I assume you mean that "...the Protection of Freedoms Act " purports, as opposed to "...reports, to stop the removal of cars"? The Act doesn't purport to make illegal the removal of cars parked on private land (generally speaking) it states it unequivocally.

[Old Snowy]

Quoting Kruse is unlikely to win too many friends. His views are his own and do not necessarily accord with current case law though, of course, they find favour in certain quarters. His views - as far as distress damage feasant is concerned - are not unusual and to a greater or lesser degree meet with approval in other common law jurisidictions. Distress damage feasant may only be used to excuse or justify actions taken and has no other place in the legal setting. Anyone seeking to withhold or seize goods must be careful that their justification is sound as the seizure/withholding of any chattels constitutes a trespass to goods that is in itself actionable.

 

The fact remains, that if one is to initiate action against the driver of a lorry that fails to abide by the rules required to be adhered to on a private road, then the only option is by way of trespass. All that is recoverable in such a claim is damages and that cannot include any aspect of a charge intended as a deterrent as that automatically becomes a penalty. So how is one going to quantify inconvenience or obstruction, or the risk of such, if they did not occur.

 

If, as I have already been at pains to set out, a security company is employed to enforce the rules then they are there 24/7 (and for a variety of other purposes as well) and it would be iniquitous to expect a driver ajudged to have breached rules to be liable for a service that was present before he arrived and will continue to be there long after he leaves.

 

Commencing an action will necessarily imply that such was the risk of inconvenience, obstruction or damage and so immediate was the apprehension of it that CCTV cameras were employed to monitor it and an invoice was immediately issued. Any claimant, in such circumstances, is also going to have to demonstrate to a court what immediate steps were taken to remedy the situation such as dispatching a guard to direct the lorry to move on etc and if they are unable to then their claim will fail. See the recent case at Scun thorpe County Court where a case brought by a PPC was dismissed for just such inaction. Commencing an action in court is not an alternative to attempting to reduce one's loss oneself but may be used where one's efforts were unsuccessful or only partially successful.

 

The most glaring misunderstanding in your argument, Spec 1, is that the sole intention of a court action is to restore a claimant to the position they would have been in had the alleged tort not occurred. Had it not occurred, of course, the claimant would still have incurred the cost of the security company (the driver cannot be held responsible for the action of others) and attempting to pass those costs on is doomed to fail.

[Old Snowy]

Three simple questions: A tortfeasor is only responsible for the losses he caused. So, were the security company there before he arrived? Will they continue to be there after he leaves? Were the security company employed for a variety of purposes? The answer to each of these is "Yes" which demonstrates that the costs incurred by their employment is a business expense and cannot be apportioned arbitrarily to a single trespasser.

 

I repeat my earlier post. Aside from setting up notices what steps, in your scenario, has the landowner or his agent taken to prevent or reduce the trespass if the risk of damage, inconvenience or obstruction was so immediate that a charge has to be levied out of all proportion to the apparent damage?

 

As a third party to the contract between the landowner and his security company a trespasser cannot be held to its terms or be responsible in any respect for any payment that may fall due between the parties to that contract. I suggest you research the concept of privity of contract. If you are saying that the landowner (or his agent) is trying to recover his "potential" loss then there isn't any damage. In terms of trespass there is either a loss or there isn't. Potentialities don't enter into the equation.

 

I am struggling to understand what offer and consideration it is being suggested could form part of any contract in the scenario you are painting/repainting/repainting?

[Old Snowy]

I'm afraid that you'd suggested in your previous post that the trespasser would be liable for damages that is made up of the charges due as a result of the contract that exists between the landowner and the security company.

 

I was not in anyway seeking to put forward the suggestion that there was a need to prove a risk of damage, inconvenience or obstruction. My question was straightforward:

 

Aside from setting up notices what steps, in your scenario, has the landowner or his agent taken to prevent or reduce the trespass if the risk of damage, inconvenience or obstruction was so immediate that a charge has to be levied out of all proportion to the apparent damage?

 

And this is now the third time that I have posed it. What steps apart from erecting signs and using the CCTV camera to monitor the activities of the alleged trespasser has the landowner or his agent taken to reduce their loss? Was a security guard dispatched to stop the trespass and reduce any damage? A landowner is indeed the master of his land but he has a duty to reduce his losses.

 

As has been repeatedly said, if the damage cannot be quantified - a business expense is not and cannot form part of the damages - then whilst an action may succeed any order for damages is going to be of a nominal nature.

[Old Snowy]

Please read my posts again, you do not have to prove loss in an action for trespass

Correct. However, unless you can quantify the loss caused directly by the trespasser then whilst you may well obtain judgment you are only going to be awarded nominal damages. The fact that a figure of £100 is posted on a notice does not transmute them magically into damages simply because they are there. You must be able to prove that this expenditure or loss was caused directly by the trespasser concerned.

 

Do you provide VAT invoices for the charges you levy?