Taking clampers to district court

ldxo15wus6fpgm

Hi all.

Let me begin by stating that this is purely hypothetical and I am not seeking legal advice - I am well aware that I should talk to a solicitor if I need legal advice.

Let's say I were wrongfully clamped by a private clamping company (not the council) and have the evidence to back that up- e.g. a valid parking ticket and proof it was on display at the time, pretend the clamper took photos of my car and one of these shows the ticket on display.

To complicate things further let's pretend that that car that was clamped is my father's property and I used my mother's debit card (with permission) to pay the declamping fee.

Let's say I have appealed directly with the clamping company who have simply ignored my appeal and all other attempts at communication. As a result I decide to claim for a refund plus interest plus damages.

Which torts should a person allege here? Trespass to property/detinue? Negligence? Nuisance? All of the above?

Would I have locus standi to proceed with such a claim or would it need to be a joint claim between myself and father? Or myself and both parents?

Any and all opinions welcome.

chicoche

oh just pay it!

Fred Swanson

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NUTLEY BOY

Private property or public place ?

If public place 2 offences arise.

1. S.113 RTA 1961 - unauthorised interference with mechanism of mechanically propelled vehicle in a public place.

2. Criminal Damage Act 1991. By definition, rendering property inoperable for use comes within the scope of criminal damage.

If a private place S.113 not applicable.

Your father should be the complainant as it is his property that was damaged. Any other arrangements are really accounting issues as between yourselves.

You might add unjust enrichment to the list of complaints if they have taken the money and retained it improperly.

Samuel T. Cogley

Time to roll this out again

Mr. Incognito

It's the Tort of Detinue.

If you want a solicitor I'd be happy to recommend someone that would take the case on.

GM228

NUTLEY BOY wrote: »

Private property or public place ?

If public place 2 offences arise.

1. S.113 RTA 1961 - unauthorised interference with mechanism of mechanically propelled vehicle in a public place.

2. Criminal Damage Act 1991. By definition, rendering property inoperable for use comes within the scope of criminal damage.

If a private place S.113 not applicable.

Your father should be the complainant as it is his property that was damaged. Any other arrangements are really accounting issues as between yourselves.

You might add unjust enrichment to the list of complaints if they have taken the money and retained it improperly.

Think I've pointed this out before the S113 is no longer limited to a public place.

Anyway I still think (despite what was written in the LS Gazette) that the principles of volenti non fit injuria apply (although there is uncertainty over it's application via signage).

Only a HC or SC case will answer the question though.

The commencement of the Vehicle Clamping Act however also suggests a statutory intention of not making private clamping illegal.

Fred Swanson

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GM228

Fred Swanson wrote: »

The proposed SI to commence the VCA, might in itself be unconstitutional.

There is no proposed SI to commence the Act, rather there is an enacted SI to commence the Act, the proposed SI is in relation to NTA regulations made under the Act.

ldxo15wus6fpgm

chicoche wrote: »

oh just pay it!

If you read my post you would see that I was clamped despite the fact that I had a valid parking ticket on display on my dashboard. How would you feel if you were held to ransom for €165 despite following the rules?

NUTLEY BOY wrote: »

Private property or public place ?

If public place 2 offences arise.

1. S.113 RTA 1961 - unauthorised interference with mechanism of mechanically propelled vehicle in a public place.

2. Criminal Damage Act 1991. By definition, rendering property inoperable for use comes within the scope of criminal damage.

If a private place S.113 not applicable.

Your father should be the complainant as it is his property that was damaged. Any other arrangements are really accounting issues as between yourselves.

You might add unjust enrichment to the list of complaints if they have taken the money and retained it improperly.

It would be a public place under the road traffic acts - it's a privately owned public car park with no entry barriers etc.

Mr. Incognito wrote: »

It's the Tort of Detinue.

If you want a solicitor I'd be happy to recommend someone that would take the case on.

I would appreciate that very much.

hullaballoo

GM228 wrote: »

There is no proposed SI to commence the Act, rather there is an enacted SI to commence the Act, the proposed SI is in relation to NTA regulations made under the Act.

I think Fred got that from a post of mine.

I am admittedly biased because I am of the view that clamping is in and of itself an interference with constitutional rights and I hate the idea of clamping, despite not having ever been clamped out of order myself. In fact, I've been clamped 3 times in my life and twice, I had the clamp removed for free within minutes and for free, even where I was in the wrong. The other time was the classic (and very lucrative) getting clamped outside Holles St. after the birth of my first-born. That must almost be a rite of passage into fatherhood, getting clamped outside the maternity hospital after the birth of a child. I was wiser second time around!

Anyway, the DC probably doesn't have jurisdiction to deal with the issues that arise from clamping and that, in turn, is probably why the clamping operatives have been able to continue with impugnity, because no one wants to take a HC challenge to their practice. Well, no one except me.

With that in mind and in addition to the very generous offer from Mr Incognito above, I'd be happy to recommend a barrister to take on your case, OP.

Victor

hullaballoo wrote: »

The other time was the classic (and very lucrative) getting clamped outside Holles St. after the birth of my first-born.

The clampers have no way to know your pending paternity status.

Did you appeal?

impugnity

What an interesting spelling.

hullaballoo

Whatever about me getting clamped and misspelling words, the main issue here is that the clampers need to be taken to task and have their activities analysed from a legal perspective.

Fred Swanson

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Hypothetically, I'd contact a solicitor

ANXIOUS

If you launched a crowd funding appeal, I will happily contribute. I think it's in the benefit of everyone for someone to take a test case.

hullaballoo

ANXIOUS wrote: »

If you launched a crowd funding appeal, I will happily contribute. I think it's in the benefit of everyone for someone to take a test case.

Unfortunately, funding litigation in that way is unlawful.

Fred Swanson

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hullaballoo

Fred Swanson wrote: »

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Not champerty really but maintenance, yes.

ldxo15wus6fpgm

hullaballoo wrote: »

With that in mind and in addition to the very generous offer from Mr Incognito above, I'd be happy to recommend a barrister to take on your case, OP.

WB

That would be very kind of you, please send me a PM whenever you're online!

GM228

Fred Swanson wrote: »

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Isn’t this an odd statement from Lord Hope in the Black vs Carmichael judgement….

What was really in issue here was the legality of the action taken by the owner of the private property. Notice had been given to those who had parked in the car park without authority that there would be a levy if their vehicles were immobilised. The notice made it clear that this was private property and that vehicles left there would be regarded as unauthorised and unlawfully parked. What the landowner was doing in these circumstances was enforcing his right to the exclusive possession of his own property, and the demand for payment was a legitimate demand in these circumstances. He had acted within his rights in instructing the use of the wheel clamping, just as he would have been entitled if he wished to enclose vehicles within the car park by means of a fence or by a locked gate.

….and then one sentence later to say:-

But I am not persuaded that the means which have been selected in this case to deter that activity can be regarded as legitimate. On the contrary it seems to me that they fall plainly within the proper limits of the crime of extortion, since the whole purpose of the wheel clamping as described in each charge was to obtain money as a condition of the release of the vehicle.

Anyway, back on topic.

I seriously doubt that the Black vs Carmichael case would see approval here Fred for a number of reasons, as you say private clamping was made illegal in Scotland due to being a crime of extortion, but unlike Scotland we have the defence to extortion of having “reasonable grounds” for making such a demand and that the use of menaces is a proper means of reinforcing such demand.

Scotland also had not got something similar to the Vehicle Clamping Act to consider which allows for “statutory” and “non-statutory” clamping indicating that the intention of the legislator is clearly not to make non-statutory (private) clamping illegal.

Also the courts in England & Wales specifically dismissed the Black vs Carmichael case in the Arthur & Anor vs Anker & Anor [1997] 3 AER 738 case. This case cited the Lloyd vs DPP [1992] 1 All ER 982 case (which specifically dealt with vehicle clamping in England and Wales just after the Scottish case and also dismissing that case), the Smith vs Baker & Sons [1891] AC 325 and the Cummings vs Grainger [1977] QB 397 cases as authority which all confirmed that the principles of volenti non fit injuria still applied in English law and again in 2000 the Vine vs London Borough of Waltham Forest [2000] EWCA Civ 106 the principles of Arthur vs Anker were still held to be good law.

Private clamping in England and Wales only became illegal due to legislation as opposed to case law there. As such IMO English cases like Arthur vs Anker would have more persuasive value than the Black vs Carmichael case here as our own Supreme Court has held that the principles of volenti non fit injuria still apply in Irish law.

Fred Swanson wrote: »

There is a lot of meat on the bones for the superior courts here to get their teeth into. An appeals process where the clamper acts as judge in it's own case for starters. The problem is the clampers won't allow a case get that far and so will always settle to avoid a hearing.

Nemo iudex in causa sua does not apply. The McDonald vs Bord na gCon [1965] IR217 case which adopted the natural justice into constitutional justice specifically stated 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 High Court (see for example Kelliher vs An Post [2013] IEHC 328 and Kelly vs Minister for Agriculture [2012] IEHC 558) 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 – in those cases 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.

Fred Swanson

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ED E

If IBM Watson was a boards user it would be GM228.

GM228

ED E wrote: »

If IBM Watson was a boards user it would be GM228.

Didn't you see me on Jeopardy?

https://www.youtube.com/watch?v=Sp4q60BsHoY

ANXIOUS

hullaballoo wrote: »

Unfortunately, funding litigation in that way is unlawful.

I was under the impression I could just give them money (max 3k PA) and if they chose to use it for this that is their prerogative.

Samuel T. Cogley

I was wondering more on this too, how did SPUC for example exist - albeit not unchallenged. Companies are okay to be funded from shareholders?

Fred Swanson

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Peregrinus

Funding companies or campaign groups is not a problem. What is problematic is providing funding specifically for litigation in which you yourself have no (legal) interest. So, crowdfunding specifically to support a legal challenge. Or donations to a campaign/organisation whose sole or predominant object is mounting a court case.

Peregrinus

Fred Swanson wrote: »

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A motorist who was clamped.

Fred Swanson

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Peregrinus

Oh, right.

Maintenance is (at least in theory) an offence at common law , so the DPP could intervene.

More plausibly, the other party in the litigation would have obvious standing to object, wouldn't they? They could seek to have the proceedings stayed on the basis that they were unlawfully supported by maintenance.

GM228

ANXIOUS wrote: »

I was under the impression I could just give them money (max 3k PA) and if they chose to use it for this that is their prerogative.

Once you fund litigation where you have "neither an interest in the action nor any other motive recognised by law as justifying [the] interference" it is a criminal offence (and a tort).

There is no threshold to pass before the offence is committed.

GM228

Peregrinus wrote: »

Oh, right.

Maintenance is (at least in theory) an offence at common law , so the DPP could intervene.

It is an offence (via statute), and a tort (via common law).

Peregrinus

GM228 wrote: »

Once you fund litigation where you have "neither an interest in the action nor any other motive recognised by law as justifying [the] interference" it is a criminal offence (and a tort).

There is no threshold to pass before the offence is committed.

Yes, but simply giving money to an organisation who may use it, or part of it, to fund litigation is not maintenance. If it were, everybody donating to An Taisce (say) would be guilty of maintenance. You have to give the money specifically to fund the litigation.

GM228

Samuel T. Cogley wrote: »

I was wondering more on this too, how did SPUC for example exist - albeit not unchallenged. Companies are okay to be funded from shareholders?

SPUC was a party in the cases it funded as it initiated the cases, that's what is key, champerty and maintenance applies to someone who gives assistance or encouragement to one of the parties in the case. As SPUC was a party it's irrelevant.

Peregrinus

GM228 wrote: »

SPUC was a party in the cases it funded as it initiated the cases, that's what is key, champerty and maintenance applies to someone who gives assistance or encouragement to one of the parties in the case. As SPUC was a party it's irrelevant.

But what about donors to SPUC?

GM228

Peregrinus wrote: »

Yes, but simply giving money to an organisation who may use it, or part of it, to fund litigation is not maintenance. If it were, everybody donating to An Taisce (say) would be guilty of maintenance. You have to give the money specifically to fund the litigation.

Correct.

On a related note funding litigation via After The Event Insurance (ATE) is not illegal.

GM228

Peregrinus wrote: »

But what about donors to SPUC?

Was the funding not via the directors of SPUC, therefore having an "interest" in any action taken by SPUC.

And as you say any external funding would be considered a donation to the running of SPUC/PLC no doubt rather than to fund their cases taken.

In May the Supreme Court noted interestingly that there has been no prosecutions in "living memory", or indeed since the foundation of the state for champerty or maintenance.

GM228

Look at Jolyon Maughams failed Article 50 attempted High Court case.

He crowd-funded in the UK where champerty and maintenance is not illegal and thus no crime committed in this jurisdiction, but with a view to take the case in this jurisdiction.

So where would such a case stand if the case had of got off the ground - no crime is technically committed by those who fund, but the case is crowd funded none the less - is there any grounds for such a case to fail - abuse of process perhaps.

Samuel T. Cogley

Lads (GM228 and Peregrinus especially) thanks for the very interesting points.

ldxo15wus6fpgm

Peregrinus wrote: »

Yes, but simply giving money to an organisation who may use it, or part of it, to fund litigation is not maintenance. If it were, everybody donating to An Taisce (say) would be guilty of maintenance. You have to give the money specifically to fund the litigation.

GM228 wrote: »

Correct.

On a related note funding litigation via After The Event Insurance (ATE) is not illegal.

Interesting. So if I were to crowdfund specifically stating that I intended to use the funds to litigate obviously intent on the part of the donor can be proven.

But if I were set up a crowdfunding campaign with the purpose of cheering me up, it would become very difficult to prove maintenance... a bit of an impotent rule then.

Gofundme here I come! :pac:

GM228

Cynthia Nervous Saloon wrote: »

Interesting. So if I were to crowdfund specifically stating that I intended to use the funds to litigate obviously intent on the part of the donor can be proven.

But if I were set up a crowdfunding campaign with the purpose of cheering me up, it would become very difficult to prove maintenance... a bit of an impotent rule then.

Gofundme here I come! :pac:

No doubt a court would see through such very quickly, there would be no issue of being very difficult to prove unless you could provide a very good legitimate reason for your funding - for the purposes of "cheering me up" would not cut it.

Peregrinus

Plus, a crowdfunding campaign for the purpose of "cheering you up" might not be all that successful. If you'r really miserable I might buy you a pint, Matt, but I'm not sending you cash.

ldxo15wus6fpgm

You'd be surprised, I've seen more ridiculous campaigns hit targets over 1k! I only said it in jest anyway

Muahahaha

Theres a good article on private clamping by a barrister here on page 30
https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2011/march2011.pdf
He seems to be on the opinion that the practice would not stand up in the courts.

Victor

Muahahaha wrote: »

Theres a good article on private clamping by a barrister here on page 30
https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2011/march2011.pdf
He seems to be on the opinion that the practice would not stand up in the courts.

Quite dated, given that there is new legislation here and there have been relevant cases in the UK.

Fred Swanson

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GM228

Muahahaha wrote: »

Theres a good article on private clamping by a barrister here on page 30
https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2011/march2011.pdf
He seems to be on the opinion that the practice would not stand up in the courts.

I said it before that IMO the article is flawed, he uses the Hussey case to say the apllication of volenti non fit injuria was limited to contracts by parol or under seal only meaning a sign in a car park can't be used as a basis for a valid contract to enable the defence. But this isn't entirely true.

The Supreme Court confirmed the principle of volenti non fit injuria was never abolished in the state, 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 especially with the Vehicle Clamping Act allowing for non-statutory clampibg), 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.