Car clamping. Legal??

Victor

Oh come on. You believe people on Liveline?

Possibly, slightly more reliable story http://www.irishtimes.com/newspaper/ireland/2009/0912/1224254382537.html

Shield

Tom Young wrote: »

I'm growing very bored with this thread.

I know what you need. Nothing like a little case law to relieve the boredom:

Marina Helen Vine v London Borough of Waltham Forest
Case No: CCRTF 98/1290/B2

Court of Appeal (Civil Division)

5 April 2000

2000 WL 345158
Before: Lord Justice Roch Lord Justice Waller and Lord Justice May

Wednesday 5th April 2000

On Appeal from Central London Trial Centre

(Mr Recorder Crawford, CBE)

Representation
•Mr Guy Opperman (instructed by Messrs Amery Parkes for the Appellant).
•Mr Geoffrey Mott (instructed by London Borough of Waltham Forest for the Respondent).
JUDGMENT

LORD JUSTICE ROCH:

This is an appeal from the judgment of Mr Recorder Crawford, CBE at the Central London Trial Centre on the 18th May 1998 dismissing the appellant's action against the respondent local authority with costs. The proceedings arose out of an incident which occured on the 6th March 1997 when the appellant's car was clamped by contractors employed by the respondents to clamp and remove cars parked incorrectly on private land in spaces reserved for persons holding licences to park in such parking spaces. The parking space concerned was one of two parking spaces on land owned by Rail Track under a railway bridge carrying railway lines over High Road, Leytonstone. Those spaces were to the left of High Road for vehicles proceeding north; access to those parking spaces being obtained by vehicles turning in to a private road owned by Rail Track leading to Leytonstone High Road Railway Station and then by turning right to access the parking spaces that were under the railway bridge and beyond the western pavement of High Road. It was possible for vehicles using the parking spaces to exit by continuing north crossing the western pavement of High Road and re-entering High Road by way of a section where the kerbstones have been lowered to permit vehicles to cross the kerb. The two parking spaces under the bridge with three other parking spaces, to the left of the privately owned access road to the station, had been leased by Rail Track to the East London College. That college granted licences to certain car owners enabling those persons to park their cars in the five parking spaces. The East London College availed themselves of a service provided by the respondent local authority to deter unauthorised persons parking in these parking spaces by operating a system of wheel clamping or towing unauthorised vehicles away. That work in turn was done by contractors employed by the respondents. The cost of displaying notices warning that unattended vehicles might be clamped or towed away was borne by the East London College.

The clamping of the appellant's car came about in this way: the appellant was at the relevant time 61 years of age. The appellant was suffering from ulceration colitis for which she was undergoing treatment at King George Hospital, Goodmayes. At the same time the appellant was suspected of having a serious gynaecological problem which had been investigated at Langthorne Hospital in Leytonstone.

On the morning of the 6th March 1997 the appellant had been to that hospital and had been told that she did indeed have a serious gynaecological problem which would necessitate an urgent operation. This news, as might be expected , had upset the appellant. Despite this upset, the appellant who had travelled to the hospital in her own car, had no alternative but to return to her home in that car.

On that journey the appellant experienced pain, feelings of sickness and she became distressed. Thinking that in that state she represented a danger to other road users, she turned off Leytonstone High Road into the private road leading to the station, then turned to her right and parked her car under the railway bridge in the southern of the two parking bays at that point. There was ahead of her in the northern parking bay a Range Rover. On the wall of the northern parking bay, that is the bay with the Range Rover in it, at a height of about 10 feet above the ground was a yellow notice which read “No Parking. Any Vehicle left unattended is liable to be towed away or wheel clamped. Recoverable by the payment of a fine of £105.” There was a dispute as to whether there was a second notice beside this first notice indicating that cars belonging to disabled persons would also be clamped. There was no notice on the wall of the southern parking bay. The Recorder found that the first notice was in place, and would not have been hidden by the Range Rover. It would have been clearly visible to a person who was standing up over the roof of the Range Rover. It was accepted by a witness called by the respondents, a Mr Parker, that the Range Rover would have obscured the notice for someone sitting in the driving seat of a car.

The appellant having parked her car and without, as the Recorder found, seeing the notice, left her car, crossed the access road to a point where there was a hoarding at which point she vomited. The appellant was away from her car, so that her car was unattended for some three or four minutes. When she returned to her car it had been clamped. The person who had clamped it was Mr Parker who is employed by the contractors employed by the respondent authority. At first Mr Parker refused to remove the clamp until the appellant had been to the respondents' offices and paid the sum of £105. Subsequently he accepted payment of the sum of £105 which the appellant paid using a credit card. As a result of the use of a credit card the appellant was charged a further £3.68 to cover the credit card company's charges. Of the charge of £105, the evidence was that the contractor received £60 and the respondent authority retained £45. Another witness called by the respondents, a Mr Godfrey gave evidence, which the judge accepted that as far as the respondents were concerned this was not a profit making operation, the £45 merely covering the respondents' costs of operating this scheme.

The appellant's car was clamped for a total period of some 15 to 20 minutes.

On the 3rd November 1997 the appellant commenced proceedings against the respondents alleging that they had wrongfully immobilised her vehicle by means of a wheel clamp, the clamp being applied by servants or agents of the respondents; that when the appellant confronted the respondents' agent he had refused to release the appellant's car without payment; that the respondents' agent had wrongfully detained the appellant's car until the appellant had paid the sum of £108.68 and thus secured its release. The appellant further alleged that she had repeatedly attempted to obtain a refund of the sum of £108.68 without success; that that sum had been excessive and unreasonable — a reasonable fee would have been £40. The appellant claimed the return of the £108.68 or that sum by way of damages; alternatively £68.68, the sum paid less what would have been a reasonable fee and interest and exemplary damages. The respondents in their defence asserted that sufficient warning that unattended vehicles would be clamped had been given; denied that the appellant's car had been wrongly immobilised or that it had been wrongly detained. The defence asserted that the payment of £105 was a reasonable charge for them to make. The defence denied that the appellant was entitled to exemplary damages.

The Recorder found that the respondents had been entitled to clamp the appellant's car. The Recorder went on to find that the charge that the appellant had had to pay was not exorbitant. The Recorder also found that the matter should either have been settled or have gone to arbitration in that the appellant's claim was never going to exceed the sum of £5,000, the threshold for actions in the County Court as opposed to arbitration.

The material part of the Recorder's judgment starts at page 4B of the transcript of the judgment:

“It is unfortunate that something like this should have happened to Mrs Vine on this particular day. I accept the submission from Mr Mott that it is the type of incident for which there must be a certain degree of sympathy for the plaintiff, but I am satisfied that when Mrs Vine entered the parking area, there was a Range Rover in front of her which was parked close to the wall. The sign prohibiting parking in the area was on the wall. It was a designated area prohibiting parking and making it clear that vehicles would be towed away.

I cannot help but sympathise with Mrs Vine for the way it happened, on the day it happened, and that the swiftness with which it happened, but there is no doubt that she was a trespasser in the area where she was parked. I am not persuaded by the argument that when she parked there the sign was not there visible for her to see. Although the Range Rover was parked close to the wall and was high sided the sign was visible. Mr Parker, whose evidence I accept said it was visible. It was also conceded by Mr Godfrey that from time-to-time these signs are vandalised, but there was no suggestion that it was vandalised on the day of the incident. I was very much persuaded by Mr Godfrey's evidence. I found him a frank and very convincing witness, and he was quite open about the fact that from time to time the signs are vandalised. It was unfortunate that Mrs Vine had not seen it, because as a result she was clamped. She was a trespasser at the time of the clamping.”


The appellant's case on the central issue is that the judge having found that the appellant had not seen the notice, should have gone on to hold that the clamping of the appellant's car was a trespass and that the maintenance of the clamp on the car until the sum of £108.68 had been paid was a wrongful detention of the appellant's car by the respondents' agent. The act of clamping the appellant's car was a clear trespass, to which the respondents had no defence unless they could establish that the appellant had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped. If the appellant had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped.

The respondents' case is that the Recorder having found that the notice was clearly visible, it should be inferred that the Recorder concluded that the appellant saw the notice and consented to her car being clamped or voluntarily assumed the risk of that occurring. Alternatively, and this is the ground principally urged upon us by Mr Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.

We were referred to a number of cases but particularly to two cases where the facts were similar to the present case. The first in point of time is that of Lloyd -v- Director of Public Prosecutions [1992] 1 All ER 982 a decision of the Divisional Court in an appeal by Mr Lloyd against his conviction by the magistrates' of criminal damage contrary to s. 1(1) of the Criminal Damage Act, 1971 . That section reads:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”


The facts were that Mr Lloyd had parked his car in a private car park. There were no less than five large notices boards located at the entrance to and exit of this private car park positioned at eye-level for car drivers. All those notices warned that unauthorised vehicles would be immobilised. Mr Lloyd's car was clamped. Mr Lloyd returned to find that the car had been clamped. He contacted the security firm responsible for the clamping who required payment of £25 to release Mr Lloyd's car. Mr Lloyd refused to pay. Later, in the night, Mr Lloyd returned and cut the two padlocks securing the wheel clamps with a disc cutter. Mr Lloyd's defence when prosecuted was that he had a lawful excuse for damaging the padlocks, namely that a trespass was being committed to his car. Furthermore, Mr Lloyd argued that once he had returned to the car park and requested the removal of the clamp, any consent by him to the clamping of his car ceased, and even if the clamping of the car had not constituted a trespass up to that point it was a trespass thereafter.

A Divisional Court consisting of Nolan LJ and Judge J, as they then were, confined their decision to the criminal law. Nolan LJ said at page 992D:

“In my judgment, the suggestion that there was a lawful excuse for his action is wholly untenable. At the worst what he had suffered was a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for. Self-help involving the use of force can only be contemplated where there is no reasonable alternative. Here, as in Stear -v- Scott , there was such an alternative. The differences between the facts of that case and those of the present case are quite insufficient to my mind to make it distinguishable.”


Nolan LJ had earlier described Mr Lloyd's submission that once he had requested the removal of the clamp he was entitled to recover his car by force, as “a truly absurd state of affairs”.

The other and more recent case is that of Arthur & Anr -v-4 Anker & Anr [1997] QB 564 , a decision of this court consisting of Sir Thomas Bingham, MR, Neill and Hirst LJJ.

This was a case of a private car park, the owners of which engaged the defendants to prevent unauthorised parking. The defendants erected notices at the entrance to the car park and placed notices around the perimeter of the car park printed in red and white under the prominent heading “Warning” which read “Wheel clamping and removal of vehicles in operation. Vehicles failing to comply or left without authority will be wheel clamped and a release fee of £40 charged … Vehicles causing an obstruction or damage or left for an unreasonable length of time may be towed away and held at the company's pound in Truro. A release fee of £90 plus storage costs will be charged. For release contact Armtrack Security”.

The trial judge, HHJ Thompson, QC found that Mr Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did. Mr Arthur's car was clamped. He brought proceedings against the defendants for damages for tortious interference with his car. The defendants counterclaimed because Mr Arthur, having refused to pay the £40 fee to have his car de-clamped, returned during the night and succeeded in removing his car together with the two clamps and padlocks that the defendants had used to immobilise his car. The defendants ran two defences to Mr Arthur's action. First that he had consented or alternatively assumed the risk of his car being clamped, so that what would otherwise have been tortious conduct by the defendants was not tortious. Second, that the defendants had seized the car damage feasant.

In a judgment, with which Neill LJ agreed and Hirst LJ agreed on the issue of consent or volenti, the then Master of the Rolls adopted a passage from Clerk & Lindsell on Torts, 17th Edition (1995) pages 82–83 (having first observed “that where intentional torts are concerned it may be more appropriate to speak of consent than of volenti, but the distinction does not appear to be crucial”,) “Consent if present negatives liability. What must be established is that it was a consent freely given and extended to the conduct of which the plaintiff now complains”. At page 572H the then Master of the Rolls continued his judgment by saying:

“The judge found that Mr Arthur knew of and consented to the risk of clamping, and counsel for the Arthurs conceded in his written argument on appeal that this was so. But, counsel argued that the demand for payment amounted to blackmail and that the commission of this crime negated the effect of Mr Arthur's consent. I give my reasons below for concluding that Mr Anker's requirement of payment as a condition of de-clamping the vehicle did not amount to blackmail. It is enough at this point to say that by voluntarily accepting the risk that his car might be clamped Mr Arthur also, in my view, accepted the risk that the car would remain clamped until he paid the reasonable cost of clamping and de-clamping. He consented not only to the otherwise tortious act of clamping the car but also to the otherwise tortious action of detaining the car until payment. I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here. The judge held that the de-clamping fee was reasonable. The contrary has not been argued. In my view the judge was right to hold that Mr Arthur impliedly consented to what occurred and he cannot now complain of it. It follows that I would dismiss the Arthur's appeal against the judge's decision in so far as it rested on consent.”


This last sentence is significant because at page 571 H Sir Thomas Bingham set out the judge's finding on consent. He said:

“The judge held that Mr Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did. In those circumstances he was consenting to the consequences and could not thereafter complain of them. The effect of his consent was to render lawful conduct which would otherwise have been tortious.”


It is also of significance that the then Master of the Rolls referred to a section in the Occupiers Liability Act, 1957 which spoke of “risks willingly accepted as his by the visitor.”

The act of clamping the wheel of another person's car, even when that car is trespassing, is an act of trespass to that other persons property unless it can be shown that the owner of the car has consented to, or willingly assumed, the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the Recorder might have reached such a conclusion about the appellant's state of knowledge, but he did not do so. The Recorder made a clear finding of fact that the appellant did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the appellant's distressed state, the reason why the appellant parked and left her car hurriedly. It was the appellant's evidence that she did not see the sign. There was never any suggestion that the appellant was other than a truthful witness.

The Recorder held, correctly, that the appellant by parking her car where she did was trespassing. Unhappily, the Recorder jumped to the conclusion that the appellant had consented to, or willingly assumed, the risk of her car being clamped. In making that leap the Recorder fell into error, in my judgment. Consequently I am of the view that the Recorder's decision on the basic issue in this case must be reversed.

It follows that the appellant is entitled to a return of the £108.68 or alternatively that sum by way of damages. This finding renders it unnecessary for this court to consider whether the charge which the respondents were levying was or was not exorbitant.

Turning to the appellant's claim for exemplary damages, we were referred to the speech of Lord Devlin in Rookes -v- Barnard [1964] AC 1129 at 1226 that there are two categories of exemplary damages, the first is where there has been oppressive or arbitrary conduct by a defendant. Mr Opperman conceded that this case did not fall within Lord Devlin's first category. In respect of the second category Lord Devlin said:

“Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.”


In my judgment Mr Opperman faced an impossible task in bringing the facts of this case within that second category. The compensation payable to the appellant will be the £108.68 and the interest of £17.64 and the sum of £5 for loss of use of the car. The respondent's conduct was not calculated by the respondents to make a profit for them which might well exceed that sum. This case is quite different from cases such as libel cases where a newspaper has published a libel of a plaintiff in the belief that the story they are publishing will increase their circulation and give them a greater financial return than any damages that might be awarded to the plaintiff. An award of exemplary damages is not the award of compensation for actual loss. It is an award designed to punish a defendant for conduct which is sufficiently outrageous to merit punishment, or to deprive a defendant of an improper profit or advantage. Such damages are rarely awarded today.

This is not a case for an award of exemplary damages. The conduct of the defendants and their contractor could not be described as insolent, malicious or cruel. On the contrary there were notices; the conduct of Mr Parker, as the Recorder found, was at all times polite and there is no suggestion of any damage having been done to the appellant's car by the act of clamping it.

That disposes of the issues that arise in this appeal, with the exception of a preliminary point raise by Mr Mott. The point arises in this way: this appeal originally came before a court consisting of two Lords Justices on the 19th July last year. At the end of the hearing the members of the court reserved their judgments. Unhappily the two Lords Justices were unable to agree, although the precise nature of the disagreement is not known.

What an examination of the court file shows is that at some time a direction was given by the Lords Justices that the case should be heard by a court of three Lords Justices and that the two Lords Justices who had disagreed should not be members of that court. A note in the file indicates that the parties were to be informed by letter of the disagreement and of that direction. Unfortunately that part of the direction of the Lords Justices was not fulfilled. Letters were sent to the parties on the 3rd November of last year asking that the clerks to counsel representing the parties should telephone the listing office of this court so that a date convenient to all advocates and the court can be arranged. Subsequently the parties were informed that there would be a hearing on the 10th February this year which was listed for one day. That led to inquiries being made as to why the matter should be listed for a day when it was anticipated that judgments would be handed down, a matter which would take minutes only. It was at that point that the parties learnt of the disagreement between the two Lords Justices. It was not until the 1st February this year that Master Venne, Head of the Civil Appeals Office, wrote to the parties referring them to s. 54(5) of the Supreme Court Act, 1981 , and having set out that sub-section went on in the letter to the respondents' solicitors to write:

“In this case and having regard to the point in issue, it was assumed that the parties would wish to proceed to a new hearing. If, however, that is not the case I should be grateful if you or the appellant's solicitors Messrs Amery Parks to whom I am copying this letter, would let me know as soon as practicable. I understand that on the 10th November 1999 this matter was re-listed, after consultation with counsel, for hearing on the 10th February. I am sorry that neither you nor the appellant's solicitors appear to have been given formal notification of the courts decision that the matter would have to be reheard.”


Again, unhappily, that letter did not make it clear that the two Lords Justices had directed that the matter be reheard by a three judge court. The appellant's solicitors Messrs Amery Parks, made it clear that the appellant was desirous of the matter being heard by a three judge court, but made no formal application to that effect.

Mr Mott's submissions to this court were that the parties should have been informed of the disagreement and given an opportunity to make representations as to the further conduct of the case. Mr Mott told us that when the case was before the two Lords Justices, it was stated for the first time by the appellant's solicitors that this was being treated by the Automobile Association, who were backing the appellant, as a test case. Mr Mott told us that one of the Lords Justices asked the appellant's counsel whether the appellant was happy, if this were a test case, to proceed with a two judge court. Mr Mott submitted before us, and would have submitted to the two Lords Justices had he had the opportunity, that the conduct of the appellant in proceeding with a two judge court meant that it was too late for the appellant to request a further hearing before a three judge court. Further, Mr Mott submitted to us and would have submitted to the two Lords Justices, that allowing the case to proceed further was to involve the parties in costs which were out of all proportion to the sum at issue and to the principles at issue. His submission would have been that the two Lord Justices should have delivered their judgments and that in the result the judgment below would stand c.f. Channel J in Metropolitan Water Board -v- Johnson and Co [1913] 3KB 900 at 904. Finally Mr Mott submitted that there had been no proper application by the appellant for a three judge court. His submission was that the appeal should not have been allowed to proceed further and should simply have been dismissed. Those submissions made by Mr Mott were made in ignorance of the fact that the two Lords Justices had given a direction that the matter should be heard by a court of three Lords Justices. That that was the position was a matter which I established by looking through the court file during the short adjournment.

It is to be regretted, and this court apologises for the fact that the disagreement and the direction made by the Lords Justices was not brought to the attention of the parties at a much earlier stage, certainly by the 3rd November last year.

Once it became clear that the two Lords Justices had given the ruling that the matter be re-heard by a three judge court, we were bound to hear the substantive appeal and Mr Mott appreciated that he could not take his preliminary point further. Nevertheless, this court recognises that there is an issue which requires attention. We propose to bring it to the notice of the Master of the Rolls, Lord Woolf so that, if it is appropriate, a Practice Direction can be given dealing with the situation where a two judge court fails to agree.

LORD JUSTICE WALLER:

I agree that this appeal should be allowed essentially for the reasons given by Roch LJ. But having had the advantage of reading in draft the judgment of May LJ I would like to express in my own words why in my view the plaintiff in this case should not be held to have consented to or willingly assumed the risk of her car being clamped, and to comment shortly on the question whether it should be necessary to prove in every case that the owner of a motor vehicle who is trespassing on another's land has seen, and read and understood the notice warning that such vehicles will be clamped before the clamper is excused what would otherwise be a trespass to the motor car in fitting a clamp.

Circumstances in different cases will present different problems. But I would suggest that absent unusual circumstances, if it is established that a car driver saw a notice and if it is established that he appreciated that it contained terms in relation to the basis on which he was to come onto another's land, but did not read the notice, and thus fully understand the precise terms, he will not be able to say that he did not consent to, and willingly assume the risk of being clamped.

In this regard I suggest that some assistance is gained from cases concerned with whether terms have been incorporated into contracts, and in particular unsurprisingly cases where the question is whether particular terms have been incorporated into contracts for the parking of motor cars. In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:

“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”


In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170 Lord Denning MR concerned with whether a condition sought to be incorporated into the contract via a ticket issued to the person parking their car seeking to exempt the car parking company from liability for personal injury, put the matter this way — “the customer is bound by the exempting condition if he knows that the ticket is issued subject to it; or if the company did what was reasonably sufficient to give him notice of it.”

Megaw LJ in the same case said at 172

“When conditions sought to be attached all constitute … the sort of restriction … that is usual … it may not be necessary for a defendant to prove more than that the intention to attach some conditions has been fairly brought to the notice of the other party. But at least where the particular condition relied on involves a sort of restriction that is not shown to be usual … a defendant must show that his intention to attach an unusual condition of that particular nature was fairly brought to the notice of the other party. How much is required as being … reasonably sufficient to give the plaintiff notice of the condition, depends on the circumstances.”


He continued in relation to the particular condition in that case which sought to restrict liability for personal injury as I have said to say —

“In my view, however before it can be said that a condition of that sort, restrictive of statutory rights, has been fairly brought to the notice of a party to a contract there must be some clear indication which would lead an ordinary sensible person to realise, at or before the time of making the contract, that a term of that sort relating to personal injury, was sought to be included.”


In the clamping context it should not be overlooked that things may not be so clear as in the car parking context as the circumstances of this particular case show. Furthermore the onus on the person seeking to clamp in reliance on a notice must be very high. The particular circumstances of this case had also an unusual feature in that the plaintiff was ill. Thus in this case I would say 1.it would be less clear than in many other circumstances to a motorist that they were trespassing in pulling off the road into an area where there was both a way in and a way out; 2. it would not be fair having regard to that factor and the position of the notice to say that any ordinary and sensible person should have realised at or before the time they parked their car that they would be clamped if they did so; and 3 that the plaintiff's illness made it in any event understandable how in her case she would not see the sign, or read it.

Thus I agree that in the circumstances of this case, it would be wrong to hold that the Plaintiff consented to and willingly assumed the risk of her car being clamped, and would allow the appeal to the extent indicated by Roch LJ.

LORD JUSTICE MAY:

I agree that this appeal should be allowed for the reasons given by Roch L.J. I would, however, place a small gloss on those reasons whose effect would be, if it were right, to reserve for consideration in a future case, in which the question arose on the facts, the extent of evidence necessary to establish, in cases where trespassing vehicles are clamped, that the owner of the vehicle consented to, or willingly assumed, the risk of his vehicle being clamped.

As Roch L.J. has shown, this court held in Arthur v. Anker [1997] Q.B. 564 that a trespassing motorist, who has seen one or more notices giving sufficient warning that trespassing vehicles will be clamped and who has understood their effect, consents to the risk of clamping so that the clamping is not itself a trespass to the vehicle. In that case, the judge found as a fact that Mr Arthur knew of and consented to the risk of clamping and this was conceded on his behalf by his counsel in this court. The court therefore did not have to decide whether consent might be established in clamping cases on any variant of the facts which had been found. It seems to me to be arguable at least that the decision is not binding authority to the effect that nothing short of actual knowledge and understanding will do. As Roch L.J. has said, a trespassing motorist who claims not to have read a very obvious warning sign will nevertheless very often be found to have done so. But I would not exclude the possibility that a motorist, who appreciates that there are warning signs obviously intended to affect the use of private property for parking vehicles but who does not read the detailed warning, might, depending on the facts, be held to have consented to, or willingly assumed, the risk of his vehicle being clamped, if the unread warning sign in fact gives sufficient warning that trespassing vehicles would be clamped. Lloyd v. DPP [1992] 1 All E.R. 982 is not an authority on civil law and the question of actual knowledge of the warning signs does not appear to have been in issue. But consent was in issue (see 989d, 991d and Nolan L.J.'s decision at 991j that the alternative submission at 991d was well founded) and the facts appear to have been only that “the appellant did not dispute that the signs were there and that they were clearly visible” (see 985h). It is a case, therefore, where actual knowledge and full understanding of the warning signs may not have been considered necessary for a finding of consent.

The possibility to which I have referred does not arise in this case. The recorder found that Mrs Vine did not see the sign and Mr Mott accepts — with some reluctance, perhaps — that he cannot challenge that finding in this court. That is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk of her vehicle being clamped. In so far as this would be a finding of fact which differed from anything found by the recorder, I derive it from the photographs and the plan which show the area and the sign as clearly to this court as they were shown to the recorder. It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. It might have been part of the highway. The sign, which Roch L.J. has described, was on the wall beside the second of two bays and was not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it in the first bay because a van parked in front of her blocked the view

I agree with Roch L.J.'s judgment on the subject of exemplary damages and agree that the appeal should be allowed to the extent which he has explained.

Order: Appeal allowed; The Appellant has the costs of the court if appeal and below. (Order does not form part of the approved judgment)

Our man in Havana

Well done PSNI

Here is the other case:

Arthur and Another v. Anker and Another

Court of Appeal CA
Sir Thomas Bingham M.R., Neill and Hirst L.JJ.


SIR THOMAS BINGHAM M.R.
Oak Way is a commercial street in the City of Truro. A number of businesses lease premises which face on to it. To the back of these premises is an area of private land, enjoyed by the Oak Way leaseholders. It is used by commercial vehicles making deliveries to the premises. It is also used by the leaseholders and their employees for private parking. Customers of the leaseholders may be given permission to park their cars there when visiting the leaseholders' premises. But it is not a public car park. No one is allowed to use it without the permission of the leaseholders, express or implied.
Over the years members of the public have repeatedly parked in this private car park without permission. It may be that it was more convenient than the public car parks available in the city, or it may be that those car parks were full, or it may be that some drivers preferred not to pay the charge to park in a public car park. In Truro, as in so many cities, parking on the highway is severely restricted, and drivers may have difficulty finding somewhere convenient to park.
Whatever the reason, the leaseholders entitled to the use of the private car park behind Oak Way were constantly plagued by the unauthorised parking of cars occupying space the leaseholders wished to keep for themselves, their staff, their customers and their suppliers.
*570 To try and prevent unauthorised parking the leaseholders first put up a "Polite Notice" at the entry to the private land. It said:
"Please do not park in front of the chain or beyond this point. This is a private car park and access is required at all times. Unauthorised vehicles will be towed away at their owners risk and expense."
One might suppose that such a notice would deter drivers tempted to park without authority. But it proved ineffective. So the leaseholders engaged Armtrac Security Services to protect their land against unauthorised use.
Armtrac put up another notice at the entry to the site. It was printed in red and white under the prominent heading "Warning" and read:
"Wheelclamping and removal of vehicles in operation
"Vehicles failing to comply or left without authority will be wheelclamped and a release fee of £40 charged (in the case of Health Authorities £30). Vehicles causing an obstruction or damage or left for an unreasonable length of time may be towed away and held at the company's pound in Truro. A release fee of £90 plus storage costs will be charged. For release contact Armtrac Security" and a Truro telephone number was given.
Additional signs, to very much the same effect and readily visible, were put up at different points around the site. The leaseholders were given a number of Armtrac discs for display by their own vehicles and by other vehicles which they authorised to use the car park. Armtrac employees made periodic visits to the car park: if they found a parked vehicle not displaying a disc they would check with the leaseholders to make sure that the vehicle had no authority to park, and they would clamp any vehicle found to have parked without authority.
At about 1.45 p.m. on Wednesday, 6 May 1992 Mr. Arthur, the first plaintiff in this action, drove into the car park and parked his car. He had no authority from any of the leaseholders to do so. He knew that it was a private car park and appreciated the effect of the notices. He then left to visit the local authority planning department with which he had business to do. It so happened that Mr. Anker, an Armtrac employee and the defendant in the action, saw Mr. Arthur's car. He inspected it and found no disc. He checked with the leaseholders and was told that none of them had given Mr. Arthur permission to park. So Mr. Anker clamped Mr. Arthur's car.
Mr. Arthur returned at about 2.30 p.m. He refused to pay the £40 fee to have his car declamped. Mr. Anker refused to remove the clamp without payment. There was a long and acrimonious dispute, in the course of which Mr. Arthur tried (unsuccessfully) to drive his car away with the clamp in position. Eventually Mr. Arthur telephoned his wife, who arrived in a pick-up truck which she also parked in the car park. Mr. Anker made to clamp that vehicle as well, and Mrs. Arthur assaulted and abused him. In due course Mr. and Mrs. Arthur left in the pick-up truck. Mr. Anker and other Armtrac employees remained at the car park until about 8 p.m., when they fixed a second clamp to Mr. Arthur's car and left. During the night Mr. Arthur returned to the car park and succeeded in *571 removing his car. He was unwilling to say quite how he had done so. When Mr. Anker returned to the car park the next morning there was no sign of Mr. Arthur's car, or the clamps, or the padlocks which had been securing the clamps.
At the trial these facts were hotly disputed. But the judge very largely accepted the evidence of Mr. Anker and his witnesses and the judge's findings are not now challenged, as indeed they scarcely could have been.
Mr. and Mrs. Arthur issued High Court proceedings claiming compensation and exemplary and aggravated damages (including loss of earnings) for malicious falsehood and tortious interference with their car. Mr. Anker pleaded in defence that Mr. Arthur had wrongfully trespassed on the car park by parking his car there; that Mr. Anker had been entitled to immobilise the vehicle and to demand £40 as reasonable costs of the distraint; and that, further or alternatively, Mr. Arthur, having seen the notices, had consented to the immobilisation of the car and could not now complain of it. Mr. Anker counterclaimed for the value of the clamps and padlocks which had been taken by Mr. Arthur and not returned, and also for damages for the assault by Mrs. Arthur.
The case was transferred to the Truro County Court and was heard by Judge Anthony Thompson Q.C. on 30 April 1993. He reserved judgment and handed down a written judgment on 7 May 1993. We are indebted to him for the care which he took in finding the facts and reviewing the relevant law. The upshot was that the Arthurs' claim failed and Mr. Anker recovered judgment for £660 on his counterclaim (£480 for two wheelclamps, £80 for two padlocks and £100 for Mrs. Arthur's assault).
The judge held that Mr. Arthur was a trespasser from the first moment that he (in his car) entered the car park. He also held that Mr. Arthur saw the warning notices and understood their effect. Neither of these conclusions is now challenged. He considered and rejected, despite Scottish authority to the contrary, the suggestion that Mr. Anker had on the facts committed the criminal offences of theft and blackmail. He then considered the two legal grounds upon which Mr. Anker sought to justify an interference with Mr. Arthur's car which would, in the ordinary way, have been tortious.
The first ground relied on was the old, medieval, self-help remedy, adapted to modern conditions, of distress damage feasant. Put in simple English, if a landowner found property of another causing damage on his land he could seize the offending property and withhold it from its owner until adequate compensation had been tendered for the damage done. Although the remedy developed primarily as a means of protection against straying livestock, it was not limited to that. The judge thought it doubtful whether proof of damage was necessary to found a right to distrain but held, assuming it was, that damage should in this case be presumed, since land was a valuable commodity, car parking spaces were at a premium and a party entitled to use of a private car park suffered loss if he was deprived of that use by a trespasser. The judge considered that the demand for £40 for removal of the clamp was reasonable and in no way extortionate, since that sum did little more than cover Armtrac's costs.
The second ground relied on was consent (or volenti non fit injuria). The judge held that Mr. Arthur parked in full knowledge that he was not *572 entitled to park and of the possible consequences if he did. In those circumstances he was consenting to the consequences and could not thereafter complain of them. The effect of his consent was to render lawful conduct which would otherwise have been tortious.
The judge treated Mr. Anker, representing Armtrac, as the agent of the leaseholders. On the documents he was clearly right to do so, and his approach has not been challenged.
In argument, as in the county court, Mr. Anker's defence of distress damage feasant was addressed before his defence of consent. But I think it may be convenient to consider these topics in the reverse order.

Consent or volenti

In Smith v. Baker & Sons [1891] A.C. 325, 360 Lord Herschell said:
"It was said that the maxim, 'Volenti non fit injuria,' applied, and effectually precluded the plaintiff from recovering. The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."
It is suggested (see Clerk & Lindsell on Torts, 17th ed. (1995), pp. 82-83, paras. 3-33, 3-34) that where intentional torts are concerned it may be more appropriate to speak of consent than of volenti, but the distinction does not appear to be crucial:
"Consent if present negatives liability. What must be established is that it was a consent freely given and extended to the conduct of which the plaintiff now complains."
In Cummings v. Granger [1977] Q.B. 397 the Court of Appeal, applying section 5(2) of the Animals Act 1971 (itself reflecting old common law authority), held that a plaintiff who entered a closed yard at night knowing that an Alsatian dog was loose within had voluntarily accepted the risk of injury. In Ashdown v. Samuel Williams & Sons Ltd. [1957] 1 Q.B. 409 the first defendants (who were not the plaintiff's employers) had done what was necessary to warn her that she entered their land at her own risk, and she had chosen to take that risk. A similar principle is reflected in section 2(5) of the Occupiers' Liability Act 1957:
"The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."
The same rule is extended to trespassers by section 1(6) of the Occupiers' Liability Act 1984. In Lloyd v. Director of Public Prosecutions [1992] 1 All E.R. 982, a criminal case to which further reference is made below, the Queen's Bench Divisional Court accepted a submission that since an unauthorised parker had consented to the risk of his car being clamped the clamping was not a trespass: see pp. 991-992.
The judge found that Mr. Arthur knew of and consented to the risk of clamping, and counsel for the Arthurs conceded in his written argument *573 on appeal that this was so. But counsel argued that the demand for payment amounted to blackmail and that the commission of this crime negated the effect of Mr. Arthur's consent. I give my reasons below for concluding that Mr. Anker's requirement of payment as a condition of declamping the vehicle did not amount to blackmail. It is enough at this point to say that by voluntarily accepting the risk that his car might be clamped Mr. Arthur also, in my view, accepted the risk that the car would remain clamped until he paid the reasonable cost of clamping and declamping. He consented not only to the otherwise tortious act of clamping the car but also to the otherwise tortious action of detaining the car until payment. I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the landowner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay, and there must be means for the owner to communicate his offer. But those situations did not arise here. The judge held that the declamping fee was reasonable. The contrary has not been argued. In my view the judge was right to hold that Mr. Arthur impliedly consented to what occurred, and he cannot now complain of it.
It follows that I would dismiss the Arthur's appeal against the judge's decision in so far as it rested on consent.

Distress damage feasant

The application of this ancient remedy to animals was abrogated by section 7(1) of the Animals Act 1971 which substituted a new procedure for detaining trespassing livestock. But the terms of that subsection do not suggest that any wider application of the remedy has been affected, and historically the remedy has been recognised in relation not only to animate things but also to inanimate objects such as fishing equipment (Reynell v. Champernoon (1631) Cro.Car. 228), grain and straw (Williams v. Ladner (1798) 8 Durn. & E. 72) and a railway locomotive (Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co. (1853) 2 E. & B. 793). It is common ground in the present case that the remedy survives and is in principle capable of applying to inanimate objects. It is however plain that application of the remedy to facts such as the present is remote from anything which could ever have been contemplated by those who developed the remedy (the same could also of course be said of the Ambergate case); that if the remedy were in principle applicable it would apply to a party who genuinely did not know that he was trespassing and had received no notice that his car might be clamped; and that that application of the remedy in such circumstances would be unlikely to promote social harmony between the clamper and the clamped. I do not for my part feel constrained to undertake heroic surgery to seek to apply this medieval remedy to 20th century facts such as we have here.
My first reason for doubting whether the remedy can apply in the present case is conceptual. The object of the remedy is to enable a party *574 entitled to possession of land, personally or through an agent, to take prompt action to stop or prevent damage to his land or anything on it by seizing and impounding any "trespassing chattel" until its owner claims his chattel and tenders appropriate compensation. The most obvious self-help remedy, and that most commonly resorted to in the case of trespassing livestock, is to eject or remove the trespassing thing; but this deprives the landowner of any security for damage actually done to him by the trespassing thing, and ejectment or removal of a trespassing car from a city centre private car park poses special problems, as Nolan L.J. pointed out in Lloyd v. Director of Public Prosecutions [1992] 1 All E.R. 982, 991. There is no doubt here that the leaseholders have a sufficient interest in the Oak Way car park, that Mr. Anker is properly regarded as their agent and that Mr. Arthur's car was parked without express or implied authority so as to make him (and, notionally, his car) a trespasser. It is nonetheless clear that the result of clamping his car was not to stop or prevent the car from causing whatever damage it was causing to the leaseholders (see further below) but to ensure that the car would continue to cause the very damage (unauthorised occupation of parking space) of which the leaseholders complained. It does not appear to be a necessary, although it is a usual, feature of the remedy that the trespassing chattel should be removed to a place other than that in which it is seized (Glanville Williams, Liability for Animals (1939), p. 93). But it is on any showing anomalous that a self-help remedy should amount in effect to a self-inflicted wound. The truth is that the clamping of trespassing cars is effected as a deterrent, not to stop an existing trespass or prevent future damage by the trespassing chattel on the occasion when it is clamped. It would not, however, appear that deterrence had much, if anything, to do with this remedy as originally developed.
My second reservation concerns the requirement of damage. Most modern authors share, at least tentatively, the view succinctly put in Fleming, The Law of Torts, 8th ed. (1992), at p. 88: "A merely technical trespass does not suffice and it is unclear whether the cost of removal would be recoverable (as in an action for trespass)." In Salmond & Heuston on the Law of Torts, 20th ed. (1992), at p. 588 the view is expressed:
"There must be actual damage done by the thing distrained; for it is rightly taken and detained only as a security for the payment of compensation, and where there is no damage done there can be no compensation due."
See also Winfield & Jolowicz on Tort, 14th ed. (1994), p. 675 and Clerk & Lindsell on Torts, p. 1555, para. 29-33.
There is support in the authorities for this view. In Vaspor v. Edwards (1701) 12 Mod. 658, 660 Holt C.J. strongly inclined to the view that to distrain cattle damage feasant "they must be actually doing damage, and are only distrainable for the damage they are then doing, and continuing." In Wormer v. Biggs (1845) 2 C. & K. 31 the mere presence of a runaway horse in a private mews was not regarded as sufficient to justify a distress. The judgments in Boden v. Roscoe [1894] 1 Q.B. 608 appear to have assumed that some damage to the land or something on it must be shown. *575 In Sorrell v. Paget [1950] 1 K.B. 252 the Court of Appeal was willing to infer a finding of damage, but not to dispense with the need for such a finding.
Commonwealth jurisdictions which have inherited the English law of distress damage feasant have inclined to this view. In Reg. v. Howson (1966) 55 D.L.R. (2d) 582, 596 Laskin J.A. accepted Fleming's view, and this case was followed in Controlled Parking Systems Ltd. v. Sedgewick [1980] 4 W.W.R. 425. In the New Zealand case of Jamieson's Tow & Salvage Ltd. v. Murray [1984] 2 N.Z.L.R. 144, 148, Quilliam J. held that there must be actual damage done by the thing distrained before the right of distress can be exercised, but regarded the cost of towing away an unlawfully parked car as amounting to actual damage.
Professor Glanville Williams regarded the authorities on whether the mere unlawful presence of a chattel was enough to justify a distress of it as too uncertain and conflicting for any assured answer to be given (Glanville Williams, Liability for Animals, p. 70) but was inclined to the view that since trespass was actionable without proof of actual damage the right to distrain should arise in the same way: see p. 76. The authority which gives most support to this conclusion is the Ambergate case, 2 E. & B. 793, since there is nothing in the report to suggest that the trespassing locomotive, although unlawfully on the line of the Midland Railway Co., was in any way obstructing traffic on the line or disrupting the business of the railway. The most that can be said is that unlawful use of the Midland Railway Co.'s line and disruption of its business in future were contemplated. In the much earlier case of Reynell v. Champernoon, Cro. Car. 228 the apprehension seems to have been of future damage.
It is plain that physical damage to the land or anything on it is not necessary to found a claim to distrain damage feasant. But I do not think a mere technical trespass, mere unlawful presence on the land without more, is enough. Actual damage would be shown if the party entitled to the use of the land were denied, or obstructed in, the use of it: see Williams v. Ladner, 8 Durn. & E. 72. Thus if any of the leaseholders, or any of the leaseholders' licensees (including suppliers seeking to make deliveries), were unable to use the car park, or prevented from unloading, by a trespassing car, that would amount to actual damage. But there is no evidence and no finding of any such evidence in the present case.
I have difficulty in accepting the view propounded in the Jamieson case [1984] 2 N.Z.L.R. 144 that the cost of towing away may on its own, amount to actual damage sufficient to justify the distress. If there is no actual damage otherwise entitling the landowner to distrain, he cannot become entitled to distrain simply because the distress itself will have a cost. It may well be, as Professor Glanville Williams suggests (Liability for Animals, p. 86), that the distrainor may justify a claim for all damages following from the original trespass including that sustained during the distress, but if actual damage is necessary to give the right to distrain it would defy logic to allow the distrainor to rely on the cost of the distress alone to justify the distress.
My third reservation relates to the question of compensation. The distrainor can retain the trespassing chattel as security for his claim to be compensated for the actual damage he has suffered as a result of the *576 trespass (plus, it may be, the cost of the distress). But it is plain that in a case such as this a flat charge for release of the vehicle, imposed irrespective of the period of the trespass and the time of day or night at which it occurs, and paid not to the leaseholder who has suffered the damage but to augment the profit of an agent who has suffered no damage, has no compensatory element at all. Since Armtrac render their services to the leaseholders without charge and look for their remuneration solely to fees paid by trespassing drivers for the release of their vehicles, the payments cannot be treated as discharging any liability of the principal to the agent. It is true, as Sorrell v. Paget [1950] 1 K.B. 252 makes clear, that if a distrainor demands an unreasonably large sum to release a chattel the trespasser need only tender a reasonable sum, and if the distrainor does not accept that tender his detention of the chattel thereupon becomes wrongful. But in cases such as the present the calculation of a reasonable sum would be subject to such variations and would give rise to such endless dispute as to make the operation of an orderly clamping regime on this legal basis wholly impracticable.
On the facts of the present case I reach a conclusion different from that of the judge. Even if it be accepted that a landowner may in some circumstances distrain damage feasant a car parked without permission on his land, he can only do so to recover compensation for actual damage he has suffered. The leaseholders here are not found to have suffered any actual damage; they have no claim to be compensated; and what Mr. Anker claimed as their agent was not compensation.

Crime

We were referred to two English criminal cases arising out of private wheelclamping: Stear v. Scott (Note--1984) [1992] R.T.R. 226, D.C. (Kerr L.J. and Forbes J.) and Lloyd v. Director of Public Prosecutions [1992] 1 All E.R. 982. In both cases the defendants had knowingly parked on private land despite warnings that cars so parked would be clamped. In both cases the cars were clamped, and in both the defendants removed the clamps, damaging the clamp or the padlock which secured it. Both defendants were convicted under section 1(1) of the Criminal Damage Act 1971 of causing damage without lawful excuse, both appealed and both appeals failed. Neither court found it necessary to review the civil law rights of a landowner in this situation. The cases are authority for the proposition:
"that, at any rate as a general rule, if a motorist parks his car without permission on another person's property knowing that by doing so he runs the risk of it being clamped, he has no right to damage or destroy the clamp. If he does so he will be guilty of a criminal offence:" see Lloyd v. Director of Public Prosecutions, at p. 992.
This would appear to make clear that Mr. and Mrs. Arthur were not on any showing entitled to convert the clamps and padlocks belonging to Mr. Anker. On this basis Mr. Anker was entitled to judgment on his counterclaim in any event.
The Scots courts have had occasion to consider the criminal liability of the clamper. In Black v. Carmichael, 1992 S.C.C.R. 709 the defendants *577 were employed in a private car park in Hamilton. There were notices warning that cars parked without permission would be clamped and £45 charged for release. A number of cars were so parked and were clamped. Notices were stuck on the windscreens stating that the cars had been clamped and that £45 would be charged for release. The defendants were charged on summary complaints with extortion and theft. The defendants challenged the relevancy of both charges. The sheriff rejected the challenge to the extortion charge but upheld the challenge to the theft charge. Both sides appealed, the defendants against the upholding of the extortion charge, the prosecutor against the rejection of the theft charge. The defendants' appeal failed. The prosecutor's succeeded.
In upholding the relevancy of the theft charge it was held that an intention to deprive the owner permanently of the goods was not a necessary ingredient of the offence of theft in Scots law. This is not the law in England: see sections 1(1) and 6 of the Theft Act 1968. An English court would reach a different decision.
In rejecting the challenge to the relevancy of the extortion charge the Lord Justice-General, Lord Hope, said, at p. 717:
"In my opinion, it is extortion to seek to enforce a legitimate debt by means which the law regards as illegitimate, just as it is extortion to seek by such means to obtain money or some other advantage to which the accused has no right at all. Furthermore, the only means which the law regards as legitimate to force a debtor to make payment of his debt are those provided by due legal process. To use due legal process, such as an action in a court of law or a right of lien or retention available under contract, or to threaten to do so, is no doubt legitimate. It is not extortion if the debtor pays up as a result. But it is illegitimate to use other means, such as threats which are not related to the use of legal process or the unauthorised detention of the debtor's person or his property, and it is extortion if the purpose in doing so is to obtain payment of the debt."
It appears from this passage, as from a passage from Silverstein v. H.M. Advocate, 1949 J.C. 160, 163, quoted by Lord Allanbridge, 1992 S.C.C.R. 709, 720ä, that everything depends on whether the demand made is one which the law recognises as legitimate. That takes one back to the civil law, which may again be different in England and Scotland.
Section 21 of the Theft Act 1968provides:
"(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief--(a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand."
If my conclusion on consent is correct, Mr. Anker did have reasonable grounds for demanding payment and was entitled to reinforce his demand by his threat to keep the car clamped until he was paid. But even if my conclusion on consent is wrong, he plainly believed that he had reasonable *578 grounds to demand payment and to keep the car clamped until he was paid. He was not, even arguably, guilty of blackmail.
Like the judge, I do not think the answer to the present case is to be found in the criminal law.

Conclusion

Since the judge was right on the first, consent, issue the appeal against his decision must be dismissed.
On the eve of the hearing in this court Mr. and Mrs. Arthur instructed a solicitor and counsel. Until then they had been unrepresented. Recognising the potentially far-reaching implications of any judgment we reached, we invited the Attorney-General to instruct an amicus to assist us on the general legal principles involved. Mr. Stephen Richards was accordingly instructed. We gratefully acknowledge the great help which he gave us.

NEILL L.J.

I have had the advantage of reading in draft the judgment of Sir Thomas Bingham M.R. and I agree that the appeal should be dismissed for the reasons given in his judgment. I propose, however, to add some words of my own on the question of distress damage feasant.
Distress damage feasant is a remedy of self-help which has been recognised by the law for many centuries. It has features in common with the remedy of distress for rent but there are also significant differences. As long ago as the Statutes of the Exchequer the impounding of animals which a man found on his land "damage feasant" was excepted from the statutory restriction as to the classes of animal on which distraint could be levied: see Halsbury's Statutes , 4th ed. reissue, vol. 13 (1991), p. 599. The phrase "damage feasant" appears to be derived from the Old French "damage fesant," meaning causing loss.
It seems probable that in its original form the remedy was restricted to animals; there is much learning in the books as to the distinction between village or manor pounds and private pounds and as to the obligations at common law to feed impounded animals. But by the reign of Charles I, if not before, distress damage feasant was recognised as an appropriate remedy in the case of inanimate objects as well: see Reynell v. Champernoon (1631) Cro. Car. 228. In that case the defendant, who was the owner of a fishery, had seized the oars and nets of the plaintiff and others who were rowing on his waters. The defendant said that he had done so "for the safeguard of his fishing." The court held that he had been entitled to take the nets and oars and detain them to stop any further fishing, but that he had not been entitled to cut the nets.
We were referred to other cases to the same effect including Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co., 2 E. & B. 793 where the Ambergate Railway Co. had brought a locomotive engine and tender onto a branch line belonging to the Midland Railway. The Midland Railway detained the engine and tender and Ambergate brought proceedings in conversion. The court held that as Ambergate had demanded the return of the engine and tender in order to make use of them on the Midland Railway line the Midland Railway were entitled to distrain them damage feasant.
*579 The remedy of distress damage feasant was abolished in relation to animals by section 7 of the Animals Act 1971. The old remedy was replaced by a statutory right to detain trespassing livestock and, in prescribed circumstances, to sell such stock. Hitherto, in contrast to the remedy of distress for rent for which a statutory right to sell the goods distrained was conferred by the Distress for Rent Act 1689 (2 Will. & Mar. c. 5), there was no right to sell an animal distrained damage feasant. The Act of 1971, however, did not abolish the remedy of distress damage feasant in the case of inanimate objects. The question which arises for determination therefore is whether the remedy is available on the facts of this case.
It will be convenient to consider first whether it is necessary for the distrainor to prove damage, whether already caused or merely apprehended, and, if so, the nature of the damage.

The need to prove damage

It can be strongly argued that as trespass to land is a tort actionable per se the remedy of distress should be available in the same circumstances as an action at law. It is to be noted that this argument has the support of Professor Glanville Williams and of the editors of Winfield on Tort, 7th ed. (1963). Furthermore it has found favour with Hirst L.J. In my view, however, it cannot be right for the law to countenance the use of self-help which involves the detention of a chattel if the distrainor has suffered no actual loss and none is apprehended. It has been said that distress at common law is merely a pledge for compensation for injury. In the absence of some actual or apprehended injury I can see no need for a pledge. Furthermore, the name of the remedy is consistent with the view that the trespassing animal or object must be causing (or threatening) damage or loss before the remedy can be exercised. I am also impressed by the fact that in some of the old cases disputes arose as to whether the tender of compensation was sufficient. I am not aware of any case where such a dispute related to the sufficiency of the tender of a merely nominal amount.
I turn therefore to the nature of the damage which must be shown.

The nature of the damage

In many cases of distress damage feasant the damage consisted of the eating of grass or other herbage or the trampling down of crops or other vegetation. It seems clear, however, that apprehended damage is sufficient: see Reynell v. Champernoon, Cro.Car. 228. It does not seem to have been suggested by Mr. Champernoon that any fish had already been caught. A modern authority is Sorrell v. Paget [1950] 1 K.B. 252. There the plaintiff's heifer had strayed onto the defendant's land where he kept a T.T. herd. The defendant impounded the heifer in his barn and, though no damage was proved, the Court of Appeal held that the defendant's action had been justified. It seems that the right to impound flowed from the threat which the heifer presented to the herd.
It is also clear that in some circumstances placing an incumbrance on the land can sufficiently interfere with its use as to amount to damage. *580 This is a possible explanation of the Ambergate case, 2 E. & B. 793 and of cases in which the use of the remedy of distress damage feasant has been approved where tithes have been placed on land so that it could not be used for pasture: see for example, Williams v. Ladner, 8 Durn. & E. 72 .
The damage is not limited, however, to damage to the distrainor's land: see Sorrell v. Paget [1950] 1 K.B. 252 and Boden v. Roscoe [1894] 1 Q.B. 608, where the defendant's pony had escaped into the plaintiff's field and kicked the plaintiff's filly, seriously laming it. In the course of his judgment in the latter case Cave J. said, at p. 611:
"It is laid down distinctly in Rolle's Abridgement, that you may distrain damage feasant anything animate or inanimate which is wrongfully on the land of the distraining party and is doing damage there, whatever the nature of the damage may be. It is there said that you may not only distrain a greyhound running after rabbits in a warren, but also ferrets or nets which a man has brought into the warren, and has been using for the purpose of catching the rabbits. The plaintiff's distress, therefore, was a valid distress in respect of the damage to the filly . . ."
In Jamieson's Tow & Salvage Ltd. v. Murray [1984] 2 N.Z.L.R. 144 it was held by Quilliam J., sitting in the High Court in Wellington, that the cost of removing an illegally parked vehicle could be regarded as actual damage justifying the retention of the vehicle. With the utmost respect I am unable to agree. It seems to me that the loss must already have occurred or be apprehended at the moment the remedy is put into operation. I do not see that the distrainor can by his own action create the necessary damage. In this context it is to be noted that after placing an impounded animal or chattel in a private pound the distrainor cannot claim damages in respect of the occupation of the land in the private pound.

The present case

I return to the facts of the present case which, at this stage, it is necessary to examine on the hypothesis that no notice of clamping had been given.
It can be argued that, even though there was no evidence that any damage had been done before the clamp was attached, the use of the car park by the leaseholders was interfered with, and that it was a possibility that some other motorist who wished to do business at one of the adjacent premises would have been turned away. There was, however, no evidence to this effect and for my part I am satisfied that on the facts of this case no sufficient damage was proved to justify the use of this self-help remedy.

The use of the remedy to control parking

I would, however, go further. There are many cases where the common law has been successfully adapted to take account of modern conditions. But I would deplore the widespread use of the ancient remedy of distress damage feasant to control the unauthorised parking of vehicles on private land. I would state my reasons as follows.
*581 (1) The remedy had its origins in medieval times and provided a convenient form of self-help in agricultural communities.
(2) Parliament has now intervened and provided a new statutory remedy for cases for which the remedy of distress damage feasant was originally devised. The common law remedy survives in the case of an inanimate object but the foundations on which the remedy stands must have been weakened by the new legislation.
(3) At common law the distrainee is entitled to tender compensation for the damage suffered. It seems that this right will continue until perhaps the object detained is placed in a public pound. I do not see on what basis a distrainee would be able to calculate what that compensation should be.
(4) Under the old law certain animals were privileged from seizure, including horses while they were being ridden, and possibly while being led: see Bunch v. Kennington (1841) 1 Q.B. 679. It was suggested in argument in Bunch's case that a possible reason for this privilege was to avoid violent disputes. It seems to me, by parity of reasoning, that the courts should do nothing to encourage the use of clamping without notice. One can anticipate that many disputes would be likely to arise if clamps were applied to motor vehicles without any prior warning. To allow this form of self-help, save perhaps in an exceptional case where real damage could be shown, would in my view be a misuse of an old remedy.
(5) Pending some control introduced by Parliament it seems to me that the matter can be satisfactorily dealt with by means of clearly worded notices and by the application of the doctrine of volenti. This doctrine has been preserved in relation to trespassers by section 1(6) of the Occupiers' Liability Act 1984.

HIRST L.J.

I gratefully adopt Sir Thomas Bingham M.R.'s summary of the facts, and I entirely agree with his conclusions on the issues concerning consent and crime.
On the issue concerning the remedy of distress damage feasant (hereinafter called the remedy) it is common ground that, despite its abolition in the case of animals by section 7(1) of the Animals Act 1971, it still applies in relation to inanimate objects, and so it is at least capable of applying to a trespassing motor vehicle. That still leaves a number of difficult questions of direct relevance in the present case.
The first problem is whether, as both the plaintiffs and Mr. Richards submit, there must be proof of actual damage, so that mere unlawful presence on the land (trespass per se) is not enough. Undoubtedly a number of the authorities which have already been cited by Sir Thomas Bingham M.R. are consistent with this view, but in none of them, as Mr. Richards acknowledged, was the question directly in issue. It seems to me on the other hand that there are a number of other authorities which are inconsistent with this view.
First and foremost is the railway engine case of Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midlands Railway Co., 2 E. & B. 793, where it is clear from the pleadings that the complaint related to the presence of the engine and tender on the defendant's line "for the purpose of using the same, and carrying and conveying upon . . . the said branch of the said railway, by means of carriages attached to the *582 said engine and tender, passengers and goods:" see pp. 794-795; thus the damage would only have occurred in the future if and when the plaintiffs had attached the engine and tender to the carriages, and set up a competitive service. All four members of the very strong court (Lord Campbell C.J. and Coleridge, Wightman and Erle JJ.) held that the common law right to distrain applied, in addition to the statutory remedy under the Railways Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20) .
The same applies in the Court of Appeal decision in Sorrell v. Paget [1950] 1 K.B. 252, where the plaintiff's heifers had strayed on to the defendant's field in which were the cattle of the defendant's T.T. herd.
Giving the leading judgment Bucknill L.J. (with whom Cohen and Asquith L.JJ. agreed on this point) stated, at p. 259:
"Unfortunately . . . the heifer . . . strayed into another field of the defendant where was his T.T. herd. The defendant saw the heifer there in the morning to his dismay, because he was anxious to keep his herd free from all possible infection. The defendant then impounded the heifer in his barn. I think the . . . question in the case is: Was he entitled to do so? In my opinion he was."
This shows clearly that what was at stake was the apprehended damage to the integrity of the T.T. herd.
The same also applies in the old case of Reynell v. Champernoon (1631) Cro. Car. 228, where the defendant seized the plaintiff's fishing nets to safeguard his fishing, that is another case of apprehended damage.
The latest editions of the current leading textbooks on the law of tort, as quoted by Sir Thomas Bingham M.R., undoubtedly support Mr. Richards's submission. However, Professor Glanville Williams, who was no doubt the academic author with the deepest knowledge of this branch of the law, took the opposite view (see Glanville Williams, Liability for Animals) (1939), at p. 76); so did the earlier editions of Winfield on Tort; thus in the 7th edition (1963) it was stated, at p. 381:
"It is a moot point whether the distrainor must prove damage and the question has been fully considered by Dr. Glanville Williams. Winfield suggested that, where it is for trespass, there ought to be no need to prove damage: first, because trespass is actionable per se; secondly, because it is desirable in the application of self-help (of which distress is a species) that the law should be sharply defined; it might be difficult for the distrainor to be certain in some cases whether the trespass did or did not involve damage. Moreover, doubtful as the authorities are, it seems that the trend of them in modern times favours Winfield's suggestion."
The same reasoning was the basis of Professor Glanville Williams's view.
I, for my part, find this reasoning very convincing, and I find it difficult to see why in a tort actionable per se the presumed damage should not also apply to this particular remedy. I would therefore be prepared to hold that it is not necessary to prove actual damage in support of the remedy, and on this basis the first problem does not arise. If however I am wrong, and damage needs to be proved, need it be actual damage?
Mr. Richards, in his most helpful argument, put forward as a possible explanation of the three cases which I have just cited that although there *583 was no actual damage, there was an impending threat of damage. If that is the correct explanation, then in my judgment that test is plainly made out here, since the whole purpose of private parking space in a busy city centre like Truro is that the space should always be available to licensed users, who are likely to need to drive in and out at various times of the day, and also always available to delivery vehicles, which may arrive at any time. Thus the presence of a trespassing car is to my mind a sufficient threat. This approach is very similar to the ratio of the judge, who held:
"Assuming, without deciding the point, that damage is a necessary ingredient of the doctrine, it seems to me that in the instant case, and indeed in any case of a trespasser parking his car in a private car park, damage must be presumed. Land is a valuable commodity, and car parking spaces, especially in city centres, are at a premium. A landowner or lessee who designates part of the land which he occupies as a parking space for himself and his invitees suffers a loss if he is deprived of that use by a trespasser."
It seems to me unrealistic to suggest that the threat has to be immediately present, in the sense that there must be evidence of a licensed user being unable to get in because the car park is full, or of a delivery lorry waiting outside ready to deliver, at the critical moment when the trespassing vehicle arrives. This approach would therefore provide an alternative solution to the problem. What however if I am wrong on both counts and actual damage is necessary?
Here I derive great assistance from the New Zealand case of Jamieson's Tow & Salvage Ltd. v. Murray [1984] 2 N.Z.L.R. 144, where it was held that the cost of towing away an illegally parked vehicle is properly to be regarded as actual damage, and which provides a very close analogy to the present case. This was a judgment of Quilliam J. in the High Court in Wellington, following an earlier decision of Cooke J., now the Rt. Hon. Sir Robin Cooke, President of the Court of Appeal of New Zealand.
Having referred to the Canadian case of Reg. v. Howson (1966) 55 D.L.R. (2d) 582, where the opposite view was expressed by Laskin J.A., Quilliam J. proceeded, at p. 149:
"This could have been what prompted Cooke J. to indicate a contrary view in Christopher v. Police (Wellington, M 36/74, 22 April 1974). That was an appeal by the same Mr. Christopher as was concerned in the present case, against his conviction for assault. In that case the complainant had parked his car without authority in a private car park. The occupier of the land instructed the tow firm (the present appellant) to remove the car. When the complainant located the car in the tow firm's yard he attempted to drive it away but was prevented by Mr. Christopher who insisted on payment of the towage fee. A scuffle ensued which formed the basis of the charge of assault.
"It was argued for the appellant in that case that he was in peaceable possession of the car under the right of distress damage feasant. In the end it was not necessary for Cooke J. to deal with that but he did so obiter in deference to the full argument he had received on it. It is sufficient for present purposes to say that he agreed in *584 general with most of what Laskin J.A. had said in Howson's case. Cooke J. said, however, in his judgment: 'and I would find difficulty in agreeing that expenses reasonably incurred in removing an unlawfully parked vehicle could not constitute damage justifying distress damage feasant. If a person parks a car on private property in a central city area, knowing that he has no right to do so and deliberately taking the risk of its being towed away, there seems to be no good reason why the occupier should not be able to recover such expenses as damages for trespass. As the textbooks recognise, damages for trespass to land are not limited to the injury to the land or the value of its use: see for instance McGregor on Damages (13th ed., 1972) paras. 1066 and 1077; Ogus, The Law of Damages (1973) p. 166. Expenses as obviously foreseeable as were the towage expenses in the present case are surely direct and natural rather than too remote. And, there being no New Zealand statute affecting poundage or removal charges in respect of inanimate chattels, I would be inclined to hold that, having reasonably incurred a towage charge which would be recoverable as damages for trespass, the occupier would be justified in causing the vehicle to be retained by way of distress damage feasant until the charge was paid. Glanville Williams on Liability for Animals (1939) is consistent with this view if p. 75 be read with p. 86.' I find myself in respectful agreement with that. If the remedy of distress damage feasant is to be applied to modern conditions then it seems to me inevitable that the cost of removing an illegally parked vehicle would need to be regarded as actual damage. For myself I should be most hesitant to extend the remedy any further than is absolutely necessary but in this I think one is left with no sensible option."
If therefore, contrary to my view, proof of actual damage is necessary, I would wish to adopt this conclusion, which I prefer to the view of Laskin J.A. in Reg. v. Howson, 55 D.L.R. (2d) 582, 596, which was obiter and not supported by the other members of the Ontario Court of Appeal.
Can the expenses of clamping be equated with the expenses of towing away? That depends on the solution of the next problem, aptly described by Sir Thomas Bingham M.R. as that of the "self-inflicted wound."
I readily accept that the ancient remedy normally involved the removal and the impounding of the trespassing animal or chattel to a place where it was innocuous, though Professor Glanville Williams (Liability for Animals, p. 93) demonstrates clearly by reference to some early cases that removal was not invariable.
The present situation is, in my judgment, eminently one where removal is not requisite, seeing that towing away (perhaps preceded by forcible entry into the vehicle) would be fraught with risk, as recognised by Nolan L.J., with whom Judge J., agreed in Lloyd v. Director of Public Prosecutions [1992] 1 All E.R. 982, 991, when he stated:
"If Mr. Sharp is right in his submissions the only remedy open to a landowner who finds a car parked without authority on his land is to remove the car using as little force as may be required and to place it either on the highway or, if he knows who the owner of the car is, *585 back at the owner's property. The practical difficulties and dangers which that remedy would involve can readily be imagined: breaking into the car if locked in the first place; propelling it by some means onto the road with or without insurance cover; leaving it where it might cause obstruction at least, if not danger to other road users."
To my mind, in the situation in which inner city car park owners find themselves nowadays, clamping is a legitimate and appropriate form of self-help, and towing away not normally a feasible method. That this particular method should result in a prolongation of the trespass is no doubt anomalous, but no more so than when the police clamp a row of vehicles partly obstructing a busy street.
The final problem relates to the quantum of compensation. Here it seems to me that once it is accepted that clamping is a permissible and legitimate mode of self-help, the flat rate charge is appropriate for exactly the same reasons as the towing away charge was appropriate in the New Zealand case. It goes without saying that the fixed charge must be reasonable in amount (that is, a commercial figure covering the clamping firm's expenses plus an appropriate profit element), but there is no suggestion that the charge was excessive in the present case. Since on this basis the sum total of the damage is exactly equivalent to the clamping charge, I see nothing objectionable in the fact that the damages go to the clampers and not to the car park owners, who might otherwise make a windfall gain. For all these reasons I would uphold the judge on the issue of distress damage feasant as well as on the other two issues, and would dismiss the appeal on that ground also.
Might I add in conclusion that I do not consider this to be some outlandish extension of an antiquated remedy, but rather another valuable instance of the strength and flexibility of the common law in adapting itself to new circumstances in an ever changing world.


Appeal dismissed with costs.

Victor

In Arthur and Another v. Anker and Another, I think the judge has erred in one place.

He says words to the effect that there is no damage in the event that the vehicle merely occupied space and that space wasn't "earning" at the time.

Just like keeping the Dublin Port Tunnel for trucks and leaving it uncongested with private cars, there is huge value in redundant capacity. The truckers in the port tunnel know that it will be uncongested and will use it* - if it was congested, it would be in disrepute and truckers would (illegally) find ways to not use it. Likewise, to the businesses of Oak Way, there is a value in knowing that space is available at any time for their own uses. Allowing one or many strangers to occupy the space defeats much of the reason to have the space.

Otherwise you enter the situation of the rolling maul where, the offence is committed, but you can't prosecute for it, because you can't say who is doing it.

Indeed, there are strong public policy grounds for not allowing such behaviours.



* That they can't use many city streets at certain times is in part irrelevant. Its carrot and stick.

c4cat

#15 wrote: »

Hi.
I read over a few old threads on other forums about clamping. No one seemed to be sure about the legal situation. I thought I might be able to get some clarification here.

Is it legal to remove a clamp from a car? I'm talking about clamping on private property; apartment blocks, shopping centres etc.

I mean, is it not an offence to interfere with someone else's private property?

I have never been clamped but I would be interested to know the legal position on clamping.

Thanks.

I just happen to carry a pair of these in my boot, then resistance becomes futile.........

trad

As far as I can see the area of clamping on private property is a civil matter, the Gardai won't or are unwilling to get involved due to the lack of statute.

This has got me thinking, if the placing if the clamp is ultra vires (without law) then surely the removal of the clamp by the car owner should not be illegal if the placing of the clamp does not have law to back it up. It could be argued that it is a civil matter much like the placing of the clamp and if the clamping company wish, they can sue you.

I can't see the removal of the clamp being malicious damage as you would have to prove malice. The car owner can claim that he was restoring the use of their property and I can't see clamping companies getting much sympathy in court.

Victor

I'm wondering if there is a theft of service issue? Comments?

trad wrote: »

I can't see the removal of the clamp being malicious damage as you would have to prove malice.

The charge is "criminal damage".

trad

Victor wrote: »

I'm wondering if there is a theft of service issue? Comments?The charge is "criminal damage".

Is it criminal damage to right a wrong? I seem to recall some people who caused very expensive damage to american aircraft in Shannon walking out of court.

Another thought occured to me. Signage is the basis on which the clampers clamp cars ie. you parked in contravention of a sign that informs you that it is "private property" but may in fact be a public place. As far as I am aware you need planning permission to erect any signage. You more than likely require planning permission to operate a pay and display car park.

If the signs or the car park don't have planning permission then the act of clamping in my book becomes illegal. So if you have been clamped in a car park check with your local authority to see if the relevant planning permission is in place.

Paulw

trad wrote: »

Is it criminal damage to right a wrong?

Yes, it is.

trad wrote: »

As far as I am aware you need planning permission to erect any signage.

I believe you're wrong there. Can you quote any statute for this claim?

trad wrote: »

You more than likely require planning permission to operate a pay and display car park.

That's correct.

trad wrote: »

If the signs or the car park don't have planning permission then the act of clamping in my book becomes illegal. So if you have been clamped in a car park check with your local authority to see if the relevant planning permission is in place.

However, you must still pay to have your vehicle unclamped, and you can then claim back this fee. There is currently an issue around this arising from parking at Churchtown.

trad

Paulw wrote: »

Yes, it is.



I believe you're wrong there. Can you quote any statute for this claim?
.

I think this covers ithttp://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0003.html#parti-sec3

I am very pro law and order but I do not agree with clamping on "private property" as a revenue generating exercise and the tactics employed by the clamping companies. It is a totally unregulated area hence the cowboys are having a field day.

In the absence of proper legislation it's time for lateral thinking as in Al Capone went to prison for tax evasion rather than his criminal activities. Hence my ideas on planning permission.
If a car park does not have proper planning for its operation or signage in my opinion it is acting illegally. There are laws for breach of planning and if they can be used to stop this unregulated activity I'm all in favour.

Paulw

trad wrote: »

I think this covers ithttp://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0003.html#parti-sec3

That doesn't say anything about signage. I still don't believe there is any legislation that requires planning permission to erect signs. That legislation only relates to usage of land, and planning requirements for change of use.

trad wrote: »

If a car park does not have proper planning for its operation or signage in my opinion it is acting illegally. There are laws for breach of planning and if they can be used to stop this unregulated activity I'm all in favour.

Your recourse then wouldn't be against the clampers, but would be against the owner of the land.

I do agree that clamping should be properly regulated and controlled. But, if people fail to park properly, or ignore the terms of usage for a car park, then I see nothing wrong with clamping.

trad

PaulW, Paragraph 3.2(a) states

(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or

Advrtisement is a sign in that you are advertising the place to be private property. I spoke to DCC planning about another matter and was informed any sign bigger than an A4 page requires planning.

Just to put your mind at rest I have never been clamped nor so I ever intend to leave my car in such a situation that it may be clamped.

Paulw

trad wrote: »

Advertisement is a sign in that you are advertising the place to be private property. I spoke to DCC planning about another matter and was informed any sign bigger than an A4 page requires planning.

I've never before heard of a sign (of information) to be treated as advertisement. You are not advertising anything, but you are giving information.

Has that ever been tested in court?

I'd say that the vast majority of signs in developments, residential and commercial, would therefore be a breach of planning requirements. I can't see the council taking them up on it though.

I've never been clamped either and don't plan on getting clamped. I always do my best to check where I park. But, at the same time, I've no sympathy for people who get clamped when they park where they shouldn't.

johnfás

There is loads of dubious clamping going on up in UCD at the moment - I cycle past it every day. There are signs on the edge of rubble carparks that do not have lined spaces which say that if you do not park in defined spaces you will be clamped. Given that these are essentially just large spaces of rubble many people are parking in peculiar positions and also with some wheels on bordering grass verges, thereafter having their cars immobilised.

I notice two problems:

1) Their sign is barely visible. It would be incredibly easy to drive into the car park, park and walk to one of the university buildings without ever having sight of the signs.

2) The signs require you to park in defined parking spaces, of which in these car parks there are actually none.

I certainly wouldn't be paying any declamping fine if I were parked in one of those car parks... but I won't be because I can't afford a car and cycle instead

Tom Young

Any Irish Case Law??

Our man in Havana

Nope. There is one district court criminal case which is not binding.

I would imagine the 2 leading UK cases would be persuasive.

cormie

Anyone care to summarise them 2 cases for those of us who see a large block of text and scamper? :P

blackcoat

#15 wrote: »

But, what if the car owner was to remove the clamp, leave it on the ground, and drive home? (therefore not stealing the clamp).

But if the clamp gets stolen by someone else before the clamping company come to collect it, is the car owner liable? Wouldn't the company have to prove the car owner stole it? Surely the photo would not be sufficient proof?

Basically, it comes down to this. Could someone (legally) remove the clamp without damaging it, leave it on the ground and drive home? They would not be legally liable for any fine???

ha ha! very interesting questions! you're certainly not going to pay a clamper without a fight

Victor

trad wrote: »

I am very pro law and order ... If a car park does not have proper planning for its operation or signage in my opinion it is acting illegally.

Then it is your obligation to rectify this. Make some complaints to the local council.

johnfás wrote: »

There is loads of dubious clamping going on up in UCD at the moment - I cycle past it every day. There are signs on the edge of rubble carparks that do not have lined spaces which say that if you do not park in defined spaces you will be clamped. Given that these are essentially just large spaces of rubble many people are parking in peculiar positions and also with some wheels on bordering grass verges, thereafter having their cars immobilised.

I notice two problems:

1) Their sign is barely visible. It would be incredibly easy to drive into the car park, park and walk to one of the university buildings without ever having sight of the signs.

2) The signs require you to park in defined parking spaces, of which in these car parks there are actually none.

I certainly wouldn't be paying any declamping fine if I were parked in one of those car parks... but I won't be because I can't afford a car and cycle instead

You have a secondary issue there where the staff and students may be bound by disciplinary rules. If the spaces aren't defined, they shouldn't be parking there.

ballsymchugh

i'm not entirely sure about the rules re private land, but years ago i worked in the same office as a traffic warden, and he said that to put a ticket on a car that was parked illegally, there had to be almost perfect double or single yellow lines, and a sign close by that was plain and straight to the point. otherwise, some fecker of a solicitor could get the parking fine thrown out.
i'm pretty sure any solicitor worth their salt would be able to win a case against a private clamping company. i got clamped in london a few years ago while i was collecting a friend of mine to give him a lift to the airport. the boot of the car was open and we were putting bags into the boot. the flat was about 2 mins away from the car so they timed it well!!

i have to say, that video of the clamper being clamped was just brilliant.

salamander27

Just found this:

Criminal Justice (Public Order) Act, 1994


Wilful obstruction.
9.—Any person who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be liable on summary conviction to a fine not exceeding £200.

Is "we didn't think you parked in the right place or parked for too long" reasonable excuse as i doubt if they'd have lawful authority? Maybe it is? Does anyone know where "reasonable excuse" has been defined before?

Victor

I don't think "reasonable excuse" has been defined, it is up to "what a reasonable person would think" (taking both sides of the argument). Legal imperative would almost always be a "reasonable excuse". The clamper will argue contract / reasonable expectation as the basis of "reasonable excuse".

Note that piece says "passage" - can a clamped car "pass"?

afatbollix

Right just got clamped, Have a ticket and all!!!! but it was upside down.. ( to be honest)

I thinking of testing the law.. anyone know a consaw rental in dublin 1/2????

Wombatman

It is €2 for a 24 hour parking ticket at Athenry train station.

On Tue morning (7:16am) on the 20th of Oct I bought two tickets. I spent €4 but got two single day tickets in error. You can push buttons in a different sequence if you need to get follow on tickets but I didn't realise this at the time. I put both tickets on the dash and rushed off to get train.

On my return a day later at 9:30pm I find I'm clamped. I ring the NCPS number and explain what happened. They say that the tickets have expired and I have to pay €120 to get clamp off. They say they will send a guy to me. 30 seconds later a NCPS van drives up to me from the back of the car park.

I explain to your man what has happened and can clearly prove it. I said it is clear I have paid for two days parking. He is having none of it and says he can only remove the clamp if he gets €120. He also said that one of the tickets was folded over and that he could not read it. I ask him how much should I have paid for 48 hours parking. He said €4. I said I paid €4 and can prove it. He said the ticked has expired and that I need to pay him €120.

I walk down to the local Garda Station explain the situation. They say they can't get involved. I ring NCPS and explain what has happen in front of the Garda. They say they won't take it off unless I pay. They say I should pay and can appeal it later. I tell them that I need my car for work and transporting the kids etc and if they don't remove the clamp that I'm going to cut it off. Garda still listening to all this. They say go ahead but I will be fined €500. All this chat was recorded by NCPS phone system.

I cut the clamp off the next day with a bolt cutters mainly. Two and a half hours hard labour and a half day off work. The NCPS guy was standing beside me while I was doing it. He took some photos. He left. It came off. I took the clamp with me and drove off.

Questions:

I'm I the only one that thinks paying the fine and then appealing in this situation would be foolish?
Should I keep the clamp?

Gone Fishin

Don't pay the fine. Unless they have damaged your car (they scraped my wheel), you won't get your money back plus they only do appeals by email, you never get to speak to anyone about it. So long as you can return the clamp undamaged, they haven't a leg to stand on. Have someone weld some chain back on to it to replace what you cut off and you will be fine. Return the clamp repaired to them and supply them with copies of your purchased tickets.

I cut one off last week in front of a Garda and the NCPS guy. The Garda told me that they have legally no right to put a clamp on a car without getting permission from you first, if it is in a private residential area. So long as you return the clamp undamaged you are fine. NCPS guys get paid commission, so they don't care how they get a clamp on, once they get it on. There is not a Garda or court in the country that would prosecute you on behalf of them.

RasTa

Wombatman wrote: »

It is €2 for a 24 hour parking ticket at Athenry train station.

On Tue morning (7:16am) on the 20th of Oct I bought two tickets. I spent €4 but got two single day tickets in error. You can push buttons in a different sequence if you need to get follow on tickets but I didn't realise this at the time. I put both tickets on the dash and rushed off to get train.

On my return a day later at 9:30pm I find I'm clamped. I ring the NCPS number and explain what happened. They say that the tickets have expired and I have to pay €120 to get clamp off. They say they will send a guy to me. 30 seconds later a NCPS van drives up to me from the back of the car park.

I explain to your man what has happened and can clearly prove it. I said it is clear I have paid for two days parking. He is having none of it and says he can only remove the clamp if he gets €120. He also said that one of the tickets was folded over and that he could not read it. I ask him how much should I have paid for 48 hours parking. He said €4. I said I paid €4 and can prove it. He said the ticked has expired and that I need to pay him €120.

I walk down to the local Garda Station explain the situation. They say they can't get involved. I ring NCPS and explain what has happen in front of the Garda. They say they won't take it off unless I pay. They say I should pay and can appeal it later. I tell them that I need my car for work and transporting the kids etc and if they don't remove the clamp that I'm going to cut it off. Garda still listening to all this. They say go ahead but I will be fined €500. All this chat was recorded by NCPS phone system.

I cut the clamp off the next day with a bolt cutters mainly. Two and a half hours hard labour and a half day off work. The NCPS guy was standing beside me while I was doing it. He took some photos. He left. It came off. I took the clamp with me and drove off.

Questions:

I'm I the only one that thinks paying the fine and then appealing in this situation would be foolish?
Should I keep the clamp?

Drop the clamp back into their offices.

Wombatman

I left it out but bolt cutters and two hours work = damaged clamp.

Our man in Havana

They may sue you for the damage and/or report the matter to the Gardaí.

I was heading home from work last month in a taxi as i had to get out to another engagement i had that evening. Normally the trip takes 10 minutes . For some reason the traffic was completly hectic on the main road and my 10 minute trip turned into 35 minutes and a wopping taxi bill.

As i got up the road i saw clampers were out clamping 14 cars and their truck was parked about a foot and a half onto the road causing only one car to pass slowing traffic in both lanes.

14 cars were clamped 1 person literally got out of his car into his house to pick up his training gear for football and came back out and was clamped .

This angered me so i took out my phone to show their truck illegally parked .

I phoned the number on the truck to report an obstruction. I got a guy on the phone and i explained to him that there are 2 guys taking pictures on the street and they have parked their truck about a foot and a half onto the street causing delays in both directions during rush hour. I explained to him that this is after causing me alot of money and delays due to me getting a taxi. I asked him if its legal for these "work men" to do work on this street causing delays and he said no. Its completly illegal for anybody to work on that street during those times that cause delays and he will have a people up there within the next 30 minutes.

I then highlighted to him that it was his people that were causing the delays . Suddenly i got a change in his mood and he wanted me off the phone. He said they are justified to park there as there is no suitable place for them to park . I pointed out that there is a Cul De Sac right across the road. His responce was the clamps are too heavy for the drivers to carry them across the road. He then tried to end the call.

I told him i want to be compensated for my huge taxi bill and he said i have to send in a hand written letter of complaint. I told him that i can email it. He said he would not be able to accept an email . I asked for a manager but all the managers were in a meeting. I asked for a manager's name and he was not entitled to give me one.
I asked him for his name and he was not entitled to give me that . I ended up getting a reference number. When i called back the reference number was not correct.

I did approach the drivers and took their picture , i took a picture of the truck and how it was parked.

What i cant see is why they have the right to clamp and they cant park correct.

Our man in Havana

Go to the Evening Hearld with that.