Another clamping issue...

Lovecraft

The wife got clamped today. She had a ticket, and it was sitting in plain view on the dashboard, but apparently it was in the shadow of a pillar or something.

So the ticket was paid, and displayed. She had to pay 120 euros, plus a long delay before getting home.

Aside from the joke internal appeal process, what are the options? Shouldn't there be an onus on them to prove that the ticket was not on the dashboard?

They wouldn't show her photos proving they couldn't see the ticket, but of course they could take the photos from any angle they like, and could refuse to show us any photos that actually show the ticket. It's crazy.

The clampers were a company called RFC. Any suggestions? It's the injustice and crookedness of the whole thing that annoys me.

Gavinz

Absolutely insane that they got away with this.

That clamp should have been removed DIY. Your wife did nothing wrong and shouldn't have been punished because some guy couldn't be arsed checking for a ticket "in a shadow". Crazy.

davindub

Lovecraft wrote: »

The wife got clamped today. She had a ticket, and it was sitting in plain view on the dashboard, but apparently it was in the shadow of a pillar or something.

So the ticket was paid, and displayed. She had to pay 120 euros, plus a long delay before getting home.

Aside from the joke internal appeal process, what are the options? Shouldn't there be an onus on them to prove that the ticket was not on the dashboard?

They wouldn't show her photos proving they couldn't see the ticket, but of course they could take the photos from any angle they like, and could refuse to show us any photos that actually show the ticket. It's crazy.

The clampers were a company called RFC. Any suggestions? It's the injustice and crookedness of the whole thing that annoys me.

Small claims court if they won't refund keep the ticket. Ring the local newspaper.

Lovecraft

I think I've read here that the small claims court won't deal with this sort of thing for some reason.

Fred Swanson

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Lovecraft

I don't see us chasing it in the District Court - too much time and hassle (and risk?)

Is there any point in complaining to the council, who presumably employ them?

lifeandtimes

Sorry to state the obvious here but if she has a ticket with shows time paid up until,clearly she will able to send this to the clampers as proof they will check the time the fine was issued and see she was covered up until then and issue a refund, regardless of visibility issues if she had paid her ticket for her time there then she should be fine

Ken.

If its the council I'd be down there first thing in the morning. If its a shopping centre I'd haunt them on social media till I got my money back.

davindub

Lovecraft wrote: »

I think I've read here that the small claims court won't deal with this sort of thing for some reason.

They do of course deal with this. Exactly what it was set up for. Plus I was present on a day when a case was heard regarding sufficient signage to warn parkers. The company lost.

Hollister11

Email the clamping company with a picture of the ticket and a invoice for the ticket fee + a fee for your wife's wasted time.

GM228

davindub wrote: »

Lovecraft wrote: »

I think I've read here that the small claims court won't deal with this sort of thing for some reason.

They do of course deal with this. Exactly what it was set up for. Plus I was present on a day when a case was heard regarding sufficient signage to warn parkers. The company lost.

The Small Claims Procedure will not deal with this, as Fred said it's the District Court.

The Courts Service has previously confirmed the SCP can't deal with it as it falls outside the remit of legislation.

donkeykong5

Please leave off the clampers. They are doing the best they can. Mod deletion. Pls keep it civil or stay away from this forum[/B.

BreadnBuddha

donkeykong5 wrote: »

Please leave off the clampers. They are doing the best they can.

BB - warning deleted

davindub

GM228 wrote: »

davindub wrote: »

Lovecraft wrote: »

I think I've read here that the small claims court won't deal with this sort of thing for some reason.

They do of course deal with this. Exactly what it was set up for. Plus I was present on a day when a case was heard regarding sufficient signage to warn parkers. The company lost.

The Small Claims Procedure will not deal with this, as Fred said it's the District Court.

The Courts Service has previously confirmed the SCP can't deal with it as it falls outside the remit of legislation.

Source?

Mr. Incognito

davindub wrote: »

Source?

http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/781D7D5227918A618025715C004CAEF3?opendocument

I would send correspondence with a photocopy of the ticket and seeking a full refund within 7 days or else you will bring a district Court action for illegal detinue together with damages for a lost days wages

Atlantic Dawn

If they have a photo of the full dash and/or windows with no ticket showing there's not much you will achieve appealing with a valid ticket as they will argue that she could have gotten it from someone else who was parked there.

Mr. Incognito

Atlantic Dawn wrote: »

If they have a photo of the full dash and/or windows with no ticket showing there's not much you will achieve appealing with a valid ticket as they will argue that she could have gotten it from someone else who was parked there.

She can give evidence under oath. Unless they want to come into court and lie?

L1011

Atlantic Dawn wrote: »

If they have a photo of the full dash and/or windows with no ticket showing there's not much you will achieve appealing with a valid ticket as they will argue that she could have gotten it from someone else who was parked there.

If they are taken from an awkward angle or otherwise obscured, they're unlikely to be of much use

Clampers are renowned for simply not going to court when its clear someone actually will.

edit: a thought I had there - pay and display tickets used to come on labels rather than paper. This was stopped for some reason or other - financial I assume but it looks as if it may be having two financial benefits if people just pay the declamp and don't chase up.

NUTLEY BOY

Infuriating.

Was this a public place ? If so, I would have reported the clampers to the Gardaí under S.113 RTA 1961 - unlawful interference with the mechanism of a mechanically propelled vehicle. Link http://www.irishstatutebook.ie/eli/1961/act/24/section/113/enacted/en/html#sec113

If this was not a public place I would have reported similarly under S.2 Criminal Damage Act 1991. S.1 defines criminal damage as including the act of rendering property inoperable. Link http://www.irishstatutebook.ie/eli/1991/act/31/enacted/en/print.html

I think that the Small Claims Court has no jurisdiction because the parties are not really dealing with each other as consumer / retailer.

In short, I consider many of these scenarios as contract issues. OP's wife paid her contractual consideration to park there. The clampers operated on the presumptive basis that she had not. On the reported evidence they are in error.

I think that the clampers are enjoying unjust enrichment in that they have become possessed of money to which there appears to have been no proper entitlement consequent upon an invalid clamping.

What to do ? I would threaten the clampers with civil proceedings in the District Court. I would actually report the clampers to AGS now and not be binned off with the usual "it is a civil matter" tripe. It is a civil matter. It is also a criminal matter as set out above. Although the clamp has been removed the act did take place.

BTW I would never endorse advice to remove a clamp. You might well be justified in doing so in certain circumstances but you put yourself at risk of being in the wrong.

Finally, I fail to understand how clamping companies can operate an internal appeals process given that they are one of the parties to the dispute or has the principle of nemo judex in causa sua been abolished ?

GM228

NUTLEY BOY wrote: »

Was this a public place ? If so, I would have reported the clampers to the Gardaí under S.113 RTA 1961 - unlawful interference with the mechanism of a mechanically propelled vehicle. Link http://www.irishstatutebook.ie/eli/1961/act/24/section/113/enacted/en/html#sec113

Private clamping companies often act as agents for the local authority which is fully legislated for, in that case S113 would be irrelevant.

And even in a private place (S113 isn't limited to a public place anymore) S113 may be irrelevant under the "lawful authority" or "reasonable cause" clause-see below.

NUTLEY BOY wrote: »

If this was not a public place I would have reported similarly under S.2 Criminal Damage Act 1991. S.1 defines criminal damage as including the act of rendering property inoperable. Link http://www.irishstatutebook.ie/eli/1991/act/31/enacted/en/print.html

Lawful authority and/or rasonable cause could be as a result of failure to abide by agreed conditions of a contract under the principles of volenti non fit injuria (i.e a voluntary assumption of risk), something which has already been addressed by the Supreme Court to be lawful when a contract is concerned in Hussey vs Twomey [2009] 3 IR 293.

Whilst not dealing with private clamping per se it made the principles used for private clamping lawful when someone fails to pay for parking and adequate notice (i.e the terms of a contract and the actions for breaking such) is given, although it is uncertain if the signage of terms under a consumer contract qualifies under the ruling as opposed to say a verbal contract. Whilst clamping companies are reluctant to further test the voluntary assumption of risk principles I suspect if it was tested the HC (or ultimately the SC) would clarify it does apply, especially whenever the Vehicle Clamping Act 2015 is finally commenced it will give legislative regulation to private clamping.

Issues however could still arise when someone has paid to park and it expires as opposed to someone who failed to pay in the first place, in that case the fee must be reasonable taking into account how much the clamping actually costs to apply etc, and of course the OPs issue where they have paid but the clampers failed to notice.

NUTLEY BOY wrote: »

What to do ? I would threaten the clampers with civil proceedings in the District Court. I would actually report the clampers to AGS now and not be binned off with the usual "it is a civil matter" tripe. It is a civil matter. It is also a criminal matter as set out above. Although the clamp has been removed the act did take place.

Untimately the Gardaí consider the matter to be a civil matter and will not entertain it, especially when there is uncertainty over the legality of private clamping, as I stated above the principles behind it have already got the green light from the SC and so the Gardaí would be very reluctant to deal with such, my understanding from a previous conversation with my brother on the issue is that the AG has advised Gardaí it's a civil matter unlesss of course the courts decide otherwise.

NUTLEY BOY wrote: »

Finally, I fail to understand how clamping companies can operate an internal appeals process given that they are one of the parties to the dispute or has the principle of nemo judex in causa sua been abolished ?

It's very common for internal appeals processes in various industries and employment to work that way.

Whilst nemo judex in causa sua may be a natural justice (or rather a constitutional justice), it's application is for the courts, public bodies however do generally apply the principles.

Two High Court cases that come to mind Kelliher vs An Post [2013] IEHC 328 and Kelly vs Minister for Agriculture [2012] IEHC 558 both dealing with the principles of nemo judex causa sua - where investigations were held internally and employees dismissed as a result, the HC confirmed that the principle does not apply to initial investigations/appeals. An appeal to a clamping company is not the last form of appeal and so the principle would not apply as ultimately the courts are the last point of appeal.

hullaballoo

1. Clampers cannot have lawful authority to interfere with people's constitutional rights, can they? Leave aside those operating within the permissive legislation for local authorities. A private company cannot lawfully deprive me of my constitutional rights.

2. Nemo iudex is an aspect of fair procedures, which are also constitutionally enshrined and apply to everyone purporting to operate in a decision-making capacity where the decision impacts legal rights.

3. I don't know why I used numbers now to make 2 points.

davindub

Mr. Incognito wrote: »

http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/781D7D5227918A618025715C004CAEF3?opendocument

I would send correspondence with a photocopy of the ticket and seeking a full refund within 7 days or else you will bring a district Court action for illegal detinue together with damages for a lost days wages

I dont see any mention of the small claims court refusing to take clamping cases?

Statutory clamping would be a different matter but from the ops post I assumed private company on private property eg car park etc.

I'm 100% there have been small claims court cases regarding clamping I sat through one, so there's at least one circa 2008.

There is legislation regarding clamping and appeals for statutory clamping ie public road. 2015 vehicle clamping act. Prior to this there was a term in some act that a vehicle could not be imobilised unless the person doing so had the belief they were permitted to do so. I can't remember where I came across this but clamping is legal when signposted.

GM228

hullaballoo wrote: »

1. Clampers cannot have lawful authority to interfere with people's constitutional rights, can they? Leave aside those operating within the permissive legislation for local authorities. A private company cannot lawfully deprive me of my constitutional rights.

But what constitutional right would a clamper deprive you of?

hullaballoo wrote: »

2. Nemo iudex is an aspect of fair procedures, which are also constitutionally enshrined and apply to everyone purporting to operate in a decision-making capacity where the decision impacts legal rights.

Correct me if I'm wrong but didn't the McDonald vs Bord na gCon [1965] IR217 case which adopted natural justice into constitutional justice specifically state the unenumerated right was in relation to the administration of justice only by the courts, tribunals and public bodies and only then if they had the power to administer justice.

Take employment issues for example where your employer acts as judge and is obviously an interested/bias party, the HC has confirmed that the principles of audi alteram partem and nemo iudex in causa sua seldom applies in such cases and is not applicable at all in certain cases.

GM228

davindub wrote: »

I dont see any mention of the small claims court refusing to take clamping cases?

The Small Claims Procedure (people often mistakenly think it's The Small Claims Court - it's not a court) can't legally deal with the issue as you havn't bought a service for private use or consumption from the clamper which is the requirement to use the SCP as a consumer

There was something more official from the Courts Service which I can't find, but I found this.

davindub wrote: »

I'm 100% there have been small claims court cases regarding clamping I sat through one, so there's at least one circa 2008.

The SCP isn't heard or dealth with in public or in the District Court, if you sat through such a case it wasn't the SCP and was a standard DC case.

davindub wrote: »

There is legislation regarding clamping and appeals for statutory clamping ie public road. 2015 vehicle clamping act.

The legislation has not been commenced yet and if/when it is it will also apply to private property. Regarding the appeals in it's current form it may not change much as it still leaves it up to the clampers to draw up the appeals process (which they already do) although the NTA may prescribe the appeals process (may does not guarantee that they will). The one benefit though is a further appeals officer will have to be independent, but ultimately still bound by the process set up by the clampers.

davindub wrote: »

Prior to this there was a term in some act that a vehicle could not be imobilised unless the person doing so had the belief they were permitted to do so. I can't remember where I came across this but clamping is legal when signposted.

I suspect you are thinking of the "lawful authority" or "just cause" term of S113 of the Road Traffic Act 1961.

Lovecraft

GM228 wrote: »

The Small Claims Procedure (people often mistakenly think it's The Small Claims Court - it's not a court) can't legally deal with the issue as you havn't bought a service for private use or consumption from the clamper which is the requirement to use the SCP as a consumer
.

Would there be grounds to take a case against the owner of the car park via the small claims procedure? Their agent (the clamper) was in the wrong.

Fred Swanson

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Lovecraft

Fred Swanson wrote: »

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Cheers Fred. Can you elaborate?

Fred Swanson

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Del2005

L1011 wrote: »

edit: a thought I had there - pay and display tickets used to come on labels rather than paper. This was stopped for some reason or other - financial I assume but it looks as if it may be having two financial benefits if people just pay the declamp and don't chase up.

IIRC they said it was because the labels were jamming the machines. Which could only be caused by the people who maintained the machines loading the rolls of labels incorrectly.

Lovecraft

Fred Swanson wrote: »

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But there was a business to customer relationship between my wife and the proprietor of the car park - she paid for a parking service.

Fred Swanson

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Lovecraft

Fred Swanson wrote: »

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Thanks Fred - I'm not looking for an argument, just trying to clarify the options.

As far as I can tell (with little or no legal knowledge) my wife was a customer of the car park, which I think is privately owned. Agents appointed by the owners of the car park clamped her car and demanded and received 120 euros, even though she paid and displayed her ticket.

Surely 1. she was a customer of the car park and 2. the clampers were acting as agents of the proprietors?

If both of these points hold up (I'm not certain they do, of course) then there would have to be something _else_ that would preclude us pursuing this via small claims.

Fred Swanson

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L1011

Del2005 wrote: »

IIRC they said it was because the labels were jamming the machines. Which could only be caused by the people who maintained the machines loading the rolls of labels incorrectly.

Considering there are printers in airports firing out baggage labels and claim tags all day every day for years without jamming - yes, its down to not loading them right; or using the incorrect stock.

Victor

L1011 wrote: »

Considering there are printers in airports firing out baggage labels and claim tags all day every day for years without jamming - yes, its down to not loading them right; or using the incorrect stock.

In case of a jam, baggage labels can be easily reprinted, parking ticket not really. Baggage label printers are left out in all weathers for years on end.

L1011

Victor wrote: »

In case of a jam, baggage labels can be easily reprinted, parking ticket not really. Baggage label printers are left out in all weathers for years on end.

Would say that from a few years of dealing with various printers as an incidental but unfortunately important part of another job that basically all jamming faults with label printers are down to loading. Extremely ruggedised printers for poor environments exist - the printer inside the meters is one.

davindub

GM228 wrote: »

The SCP isn't heard or dealth with in public or in the District Court, if you sat through such a case it wasn't the SCP and was a standard DC case.

Ah no, definitely know the difference between DC and SMC. The judge came in and introduced the court and then threw out half the cases as they had named the defendant incorrectly. Unfortunately, it still wasn't the only case I had to sit through either.....

But I see they changed the format in 2009 so that explains the format you describe.

I can't see anything that mentions a restriction on bringing clamping cases to the small claims court/ procedure for private clamping. The article linked is not clear on the type of clamping they queried. It is consumer contracts of sorts, you enter the carpark, pay a fee, etc. Hugely different from a local authority setting parking fees etc. I don't know maybe they changed this in 2009 as well, but it would be odd given the level of release fees are very low even for the DC.

For interest:
https://www.lawsociety.ie/Documents/Gazette/Gazette%202011/March2011.pdf

GM228

davindub wrote: »

Ah no, definitely know the difference between DC and SMC. The judge came in and introduced the court and then threw out half the cases as they had named the defendant incorrectly. Unfortunately, it still wasn't the only case I had to sit through either.....

But I see they changed the format in 2009 so that explains the format you describe.

The format has never changed, since it's inception in December 1991 the SCP has never sat in a court as it isn't a court. A judge has never had the legal authority to sit such a procesure - it has always been the responsibility of the DC clerk and it is not a public procedure.

davindub wrote: »

The article linked is not clear on the type of clamping they queried. It is consumer contracts of sorts, you enter the carpark, pay a fee, etc. Hugely different from a local authority setting parking fees etc.

The article specifically mentions it was in relation to private clamping.

davindub wrote: »

I don't know maybe they changed this in 2009 as well, but it would be odd given the level of release fees are very low even for the DC.

The 2009 change was simply in relation to allowing a business to business claim.

davindub

GM228 wrote: »

The format has never changed, since it's inception in December 1991 the SCP has never sat in a court as it isn't a court. A judge has never had the legal authority to sit such a procesure - it has always been the responsibility of the DC clerk and it is not a public procedure.





The article specifically mentions it was in relation to private clamping.





The 2009 change was simply in relation to allowing a business to business claim.

It most certainly was a court. I was there.

https://www.google.ie/url?sa=t&source=web&rct=j&url=/amp/s/www.irishtimes.com/business/big-mystery-of-small-claims-court-is-why-more-people-do-not-use-it-1.204845%253Fmode%253Damp&ved=0ahUKEwjZq8G-jv7RAhWrDMAKHdawDlEQFggZMAA&usg=AFQjCNGilHKpxT-qGnaxjZjZGVuQ1W-STw

GM228

davindub wrote: »

It most certainly was a court. I was there.

https://www.google.ie/url?sa=t&source=web&rct=j&url=/amp/s/www.irishtimes.com/business/big-mystery-of-small-claims-court-is-why-more-people-do-not-use-it-1.204845%253Fmode%253Damp&ved=0ahUKEwjZq8G-jv7RAhWrDMAKHdawDlEQFggZMAA&usg=AFQjCNGilHKpxT-qGnaxjZjZGVuQ1W-STw

Read the legislation which set up the SCP:-

http://www.irishstatutebook.ie/eli/1991/si/310/made/en/print

Just like today there was no "judge", no trial and nothing held in public, it isn't and never was a court, the whole point of the SCP is to avoid court and the costs associated with it.

There was (and still is) a small claims registrar (a DC clerk) who decided the issues, not a judge, a judge has no jurisdiction on a matter entered under the SCP unless the matter is heard as a DC case.

Back in 1991 just like today you could have a SCP issue refered to the DC when it wasn't resolved, once it went to that stage it was simply a normal DC case and no longer a SCP issue dealth with by a registrat and when it went that far and you were then subject to DC legal fees. The same still applies today.

davindub

GM228 wrote: »

davindub wrote: »

It most certainly was a court. I was there.

https://www.google.ie/url?sa=t&source=web&rct=j&url=/amp/s/www.irishtimes.com/business/big-mystery-of-small-claims-court-is-why-more-people-do-not-use-it-1.204845%253Fmode%253Damp&ved=0ahUKEwjZq8G-jv7RAhWrDMAKHdawDlEQFggZMAA&usg=AFQjCNGilHKpxT-qGnaxjZjZGVuQ1W-STw

Read the legislation which set up the SCP:-

http://www.irishstatutebook.ie/eli/1991/si/310/made/en/print

Just like today there was no "judge", no trial and nothing held in public, it isn't and never was a court, the whole point of the SCP is to avoid court and the costs associated with it.

There was (and still is) a small claims registrar (a DC clerk) who decided the issues, not a judge, a judge has no jurisdiction on a matter entered under the SCP unless the matter is heard as a DC case.

Back in 1991 just like today you could have a SCP issue refered to the DC when it wasn't resolved, once it went to that stage it was simply a normal DC case and no longer a SCP issue dealth with by a registrat and when it went that far and you were then subject to DC legal fees. The same still applies today.

Last bit ill add. You can read the link I posted yourself. The small claims was indeed under the dc but there was definely a special court for it with relaxed rules in Dublin. I cant remember which building it was in, the article mentions a building that i think was sold circa 2009. But the reason I'm certain it was not DC formal is companies were not represented legally, the proper procedures were not followed, the case listing was posted on the door, etc.

You would not see DC conducted in that manner. What you describe is mediation which is part of the process. But read the article as well, it describes a informal process in a courtroom. I'll ask around to see if anyone has more on it.

GM228

Lovecraft wrote: »

In your opinion, would a claim against the owners of the car park in question be entertained, as it is not excluded by the legislation?

The key word in the legislation is "vendor", i.e the person who actually sells you goods or services. The clampers may be an agent for the proprietor, but they are still the vendor of the service (not the owner) as they are the ones offering the service (i.e the car parking) and you can only take the claim against the vendor.

In any case my opinion is irrelevant, the SCP will not take on any case regarding clamping, and perhaps because to qualify the service must have been purchased for your own private use, paid parking does not give you private use of a car park.

GM228

Lovecraft wrote: »

Interesting. I would not have considered the clampers to be the 'vendor' at all, any more than the security contractors on the Luas are vendors.

LUAS (actually Transdev) is the vendor of the tram service, the security company is the vendor of the security service on the tram service. A vendor is a person who sells goods or services to a person.

Lovecraft wrote: »

So it would not cover access to swimming pool, or a cinema ticket, or access to Tayto Park?

I would have expected 'private use' in this context to be in contradistinction to 'commercial use'.

The opposite to commercial is usually non-commercial, not private.

As "private use" isn't defined it must be interpreted in plain English in which case private use is usually the opposite to public use.

GerardKeating

hullaballoo wrote: »

1. Clampers cannot have lawful authority to interfere with people's constitutional rights, can they? Leave aside those operating within the permissive legislation for local authorities. A private company cannot lawfully deprive me of my constitutional rights.

But (assuming the car park was private property) you do not have a constitutional right to use the car park, and they have the right to define the terms of useage of the car park, and one of these terms would be to allow them to clamp the car, and in parking the car, the T&C's very accepted.

So basically you are giving permission to clamp the car, so you constitutional right are not being deprived.

If fact, by parking and no paying, you are depriving them of their constitutional rights to their land.

Fred Swanson

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GerardKeating

Fred Swanson wrote: »

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Would this loop hole make one immune to any charge of trespass ?

GM228

Fred Swanson wrote: »

You can't make a contract with a sign.

You can enter into a contract via signage, the issue is however the doubt surrounding the principles of volenti non fit injuria applying to a contract via signage (something I already mentioned earlier in the thread).

The article in the Gazette is poor IMO in relation to the issue of private clamping, the principles of voluntary assumption and their application as tested in the Hussey case and how they all tie in.

In Hussey vs Twomey [2009] 3 IR 293 the Supreme Court confirmed the principle still applied, but by virtue of S34(1) of the Civil Liability Act 1961 there was now a statutory doctrine of contributory negligence, meaning that the absolute defence afforded by the principle was limited in terms of cases involving contributory negligence for damages.

Contributory negligence would require a wrong on both parts (i.e the motorist and the clamper, unless private clamping is made illegal it would be difficult to say clamping in itself is a wrong), generally it is just the motorist who is in the wrong - meaning contributory negligence does not come into play and the principle still applies as the definition of contract applies to the Act only, not the general definition of "contract" and so if contributory negligence dosn't come into play then S34(1) doesn't come into play either meaning the principle isn't restricted  in use or to a particular definition of contract.