Are clamping fees recoverable

[sainth2]

I recently parked, wrongly, in a small car park which had the appropriate warning signs up. I was wrong in thinking i could 'chance it for five minutes and came back to a rottweiler of a clamping warden and a £100 fine. She said i had until 5pm to get the money and then the car would be towed with a recovery fine of 240.00 this was at 11am, she then proceeded to say because i had made contact I then had only an hour before she arranged to tow. I had to pay up as there was no alternative. Is this legal harrassment and charging?

[PhantomReclaimer]

If you were parked in a private car park then this is totally unlawful. It's just a penalty charge for breach of contract so cannot be enforced.

 

Personally, I think it's a blackmail offence too as they are making an unwarranted demand for money and backing it up with menaces (the menace being, of course, that they won't release your property unless you pay up).

 

P.

[sainth2]

thanks, thats encouraging. I hated feeling completely helpless! Do you have any idea how I would go about reclaiming the charge? What can I do about a blackmail offence?

[PhantomReclaimer]

If you've already paid it then reclaim it just like you do with bank charges. Send them a letter saying that you now understand the "fine" to be unenforcible and that you paid it under a mistaken belief that it was. If they don't stump up then start an action in the County Court.

 

Blackmail is a criminal offence. It could be worth a letter to the Chief Constable for the area to see what the police's opinion on the matter is.

 

J.

[sainth2]

Thankyou, I will let you know how I get on.

[GHM]

If you were parked in a private car park then this is totally unlawful. It's just a penalty charge for breach of contract so cannot be enforced.

 

Has that actually been proved in court or do we have any evidence that a counter claim against a clamper has been successful?

 

GHM

[JonCris]

If the signs are clearly posted & you park they are allowed to charge you but not to wheel clamp you. That is a breach of your human rights. They are certainly in breach of those rights if they should take your car away.

 

In Scotland their activities are illegal

[PhantomReclaimer]

Has that actually been proved in court or do we have any evidence that a counter claim against a clamper has been successful?

 

GHM

 

Im not aware of any Court cases. However, a "fine, "penalty carge", "Excess charge", or whatever they want to call it is not enforcible, in exsctly the same way that a bank charge isn't, if it is given in a private car park.

 

When you enter a private car park you accept the terms of the contract offered to you - as long as there are signs posted containing the terms. If you overstay, don't buy a ticket, don't park within the marked bays, etc, then you are in breach of the terms of the contract and the inocent party is entitled in law to recover whatever loss he has sustained due to your breach. The other party cannot simply decide that you owe him £50, £60, £100, £200 and make you pay it. Penalties are seem by the Courts as unjustly enriching the other party because they are doing nothing under the terms of the contract towards getting that money. They are punitive charges intended to punish the other party and punishment is within the realm of the ciminal Courts, not whomever decides to appoint themselvs to the job.

 

I would be reasonably confident in saying that a charge handed out in a private car park has never been successfully upheld in any Court in the Country against a defence of it being a penalty.

 

My thread on the subject.

http://www.consumeractiongroup.co.uk/forum/parking-traffic-wardens/47349-parking-enforcement-agency-parkforce.html

 

P.

[PhantomReclaimer]

If the signs are clearly posted & you park they are allowed to charge you but not to wheel clamp you. That is a breach of your human rights. They are certainly in breach of those rights if they should take your car away.

 

In Scotland their activities are illegal

 

They are not allowed to make a penalty charge. The existance of a properly worded sign only goes to show that a valid contract was in force. The party not in breach could sue the party in breach for his losses due to the breach but cannot impose an arbitrary penalty for that breach.

 

P.

[GHM]

Not intending to hijack this thread but diverting slightly... using 2 deviations from the norm:

 

1) If the clamp/fine was attached outside the physical realms of the car park (near a bay but not in one) would that still come under Contract Law as no contract would have been entered into? (Tenuous I know). I presume not as the signs alerting of clampers would specifically refer to the car park land...

 

2) If it was a private road where, again, no contract was being entered into, does the penalty issue still stand or is the owner of that land entitled to do as they see fit? As far as I was aware clamping was still legal/lawful in England & Wales (if charges are "reasonable") but one poster states it's against Human Rights, has this been proved/is this being proved?

 

Presumably, if clamping fees and parking fees based on penalties are not enforceable, local councils are going to have to raise Council Tax via other means.

 

But if I am understanding what you are saying, a plaintiff could still sue the defendant in a court which would have different consequences.

 

GHM

 

PS Just read the Parkforce thread and don't think the above got covered there, so...phew. No egg on face just yet.

[JonCris]

I agree The owner of the land or their agents are entitled to make a charge for the use of their land authorised or not. Provided it is well sign posted. They are not however entitled to demand immeadiat payment with the added threat that it will cost you more if you don't pay & to wheel clamp the car is to deprive you of your property.

 

Even councils are being warned that this practice of clamping &/or removing vehicles could be an infringement of the HRA.

 

In the case of removal only the police have the power & even then they have to have just cause such as causing an obstruction etc.

[PhantomReclaimer]

1) If the clamp/fine was attached outside the physical realms of the car park (near a bay but not in one) would that still come under Contract Law as no contract would have been entered into? (Tenuous I know). I presume not as the signs alerting of clampers would specifically refer to the car park land...

 

 

If it's outside of the acual car park then there is no contract. The signs detailing the terms of the parking contract should be posted at the enterance of the car park. If you are outside the car park gates then you haven't accepted he contract and you probably won't be on the car park owners land anyway.

 

If you are in the actual car park but outside a marked bay then you will probably be in breach of contract (assuming that parking within as bay is one of the terms) and the other party will be allowed to claim back what your breach has cost him. In this case nothing, or nest to nothing.

 

2) If it was a private road where, again, no contract was being entered into, does the penalty issue still stand or is the owner of that land entitled to do as they see fit? As far as I was aware clamping was still legal/lawful in England & Wales (if charges are "reasonable") but one poster states it's against Human Rights, has this been proved/is this being proved?

 

The land owner can do as he pleases in relation to his land. You would still accept a parking contract if there were signs posted on the private road containing the terms. The land owner can charge whatever he likes for you to park or otherwise use his land but he cannot issue penalties. If the price in the contract for parking your car was £200 then he is perfectly justified in collecting that sum from you. If the price is £1 and he tried to charge you £200 for overstaying then he would fail as the £200 would clearly be an unlawful penalty.

 

I think that clamping is highly dubious from a legal perspective, unless it's done by a Council or the Police. By placing a clamp on a vehicle you are effectively impounding someones property and by demanding payment from them to release it you are opening yourself up to all sorts of problems whitch could include being charged with blackmail, decpetion offences, etc. Also, if you clamp a vehicle and there is no way that the occupants can get home you could even be looking a a alse imprisonment charge.

 

Presumably, if clamping fees and parking fees based on penalties are not enforceable, local councils are going to have to raise Council Tax via other means.

 

The fines handed out by local councils are enforcible because it's a criminal matter and statute allows them to collect such fines.

 

But if I am understanding what you are saying, a plaintiff could still sue the defendant in a court which would have different consequences.

 

How do you mean?

 

P.

 

 

GHM

 

PS Just read the Parkforce thread and don't think the above got covered there, so...phew. No egg on face just yet.

[JonCris]

Hi Phantom Parking fees handed out by local councils are NOT fines or penalties & should they be described as such by the council they become unenforcable.

[PhantomReclaimer]

Hi Phantom Parking fees handed out by local councils are NOT fines or penalties & should they be described as such by the council they become unenforcable.

 

Depends which scheme the parking system is operated under. If it's the old criminal system which contains a right to have your case heard at Court then they can because you commit an ofence by not parking according to the Council rules which are made with a bylaw.

 

If it is one of the newer decriminalsied scheme, then I still think you can be made to pay the fine as it's still not a contractual breach on your part and still a criminal system but the human rights problem comes in that, as far as I'm aware, you do not have recourse to the Courts to adjudicate your ticket and any appeal against it is made to the parking tribunal who are not independant as they are funded by parking charges.

 

Not that familliar with these scemes so I'm willing to be corrected.

 

P.

[sainth2]

Does anyone have a letter with correct wording with which I can send to the parking company as an initial letter to begin reclaiming these clamping fees?

[PhantomReclaimer]

Does anyone have a letter with correct wording with which I can send to the parking company as an initial letter to begin reclaiming these clamping fees?

 

Something similar to what I've put here;

 

http://www.consumeractiongroup.co.uk/forum/parking-traffic-wardens/41190-parking-shopping-centre-4.html#post436205

 

P.

[patdavies]

 

If it is one of the newer decriminalsied scheme, then I still think you can be made to pay the fine as it's still not a contractual breach on your part and still a criminal system but the human rights problem comes in that, as far as I'm aware, you do not have recourse to the Courts to adjudicate your ticket and any appeal against it is made to the parking tribunal who are not independant as they are funded by parking charges.

 

Not that familliar with these scemes so I'm willing to be corrected.

 

P.

 

The whole point about decriminalised parking is that it does not involve any criminal system. The word offence should not be used for this reason.

 

DPE is a statutory civil scheme - if you don't pay, the council concerned will go to a civil court (in fact, Northampton) to get judgement against you for the civil parking debt.

 

You are getting confused about the HRA in this context. There has been legal opinion that depriving somebody of their property (ie by clamping/removal) is both unfair and disproportionate - this is where the HRA comes into play

[JonCris]

Depends which scheme the parking system is operated under. If it's the old criminal system which contains a right to have your case heard at Court then they can because you commit an ofence by not parking according to the Council rules which are made with a bylaw.

 

If it is one of the newer decriminalsied scheme, then I still think you can be made to pay the fine as it's still not a contractual breach on your part and still a criminal system but the human rights problem comes in that, as far as I'm aware, you do not have recourse to the Courts to adjudicate your ticket and any appeal against it is made to the parking tribunal who are not independant as they are funded by parking charges.

 

Not that familliar with these scemes so I'm willing to be corrected.

 

P.

 

AND here it is:

 

You are NOT guilty of ANY offence therefore you cannot be FINED & NAPAS is NOT a court of law. If a council parking ticket claims to be either a penalty or a fine it is invalid

[colinc1981]

hi all

i was clamped on the 1/12/06 on private land on a footpath outside an entrance to an apartment block car park in belfast by a company called I.S.T.M (NI) , is this unlawful clamping or can anyone advice me on this £55 charge i had to pay to get my property realsed???

 

regards

 

colin

 

nb:i was not obstructing any entrance

[JonCris]

Are there any signs about parking without consent of the land owner & are they in plain sight?

[colinc1981]

yes there was signs on the nearby walls

 

it was off a main street in belfast.

 

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[JonCris]

Go here.........Neil Herron

 

and here PePiPoo: Helping the motorist to get justice

[PhantomReclaimer]

hi all

i was clamped on the 1/12/06 on private land on a footpath outside an entrance to an apartment block car park in belfast by a company called I.S.T.M (NI) , is this unlawful clamping or can anyone advice me on this £55 charge i had to pay to get my property realsed???

 

regards

 

colin

 

nb:i was not obstructing any entrance

 

If the charge is a charge for parking on the land, there are signs that are reasonably visible which set out the terms of the parking contract then you probably couldn't get the charge back. It is a legitimate charge for the service of using the land.

 

If there are signs but there is no charge mentioned, or a charge tpo park there that is less than the £55 then the £55 is probably going to be held to be a penalty.

 

P.

[JonCris]

Don't quote me on this...........yet, but I think an opinion is developing that whilst it might be lawful to charge someone for parking on your land (they can send a bill through the post & after all we all know the DVLA will give our details to ever Tom Dick or crook) it is not lawful to wheelclamp that persons vehicle thereby depriving them of the quiet use of said vehicle. In other words a breach of your human rights

[PhantomReclaimer]

Don't quote me on this...........yet, but I think an opinion is developing that whilst it might be lawful to charge someone for parking on your land (they can send a bill through the post & after all we all know the DVLA will give our details to ever Tom Dick or crook) it is not lawful to wheelclamp that persons vehicle thereby depriving them of the quiet use of said vehicle. In other words a breach of your human rights

 

I don't think this Human Rights thing will fly. As far as I'm aware, Human Rights violations only apply to the state and it's agencies and not in relation to other private individuals or companies.

 

However, I think other things may be applicable to use against clamping companies - such as offences under the Theft Act. Blackmail is the offence of making an unwarranted demand with menaces and a demand will be presumed to be unwarranted unless the person makig it can show that he is entitled to make the demand and that the menace in question was a proper way of enforcing said demand.

 

I suppose there might be a criminal damage offence as well as you are rendering the vehicle inoperable and I seem to remember that that constitutes criminal damage.

 

P.