Guide to Clamping on Private Land

pin1onu

[This document was originally posted on the Consumer Action Group Parking Forum. As clamping is a hot topic at the moment I thought I would post it here.

CLAMPING/TOWING/BLOCKING IN ON PRIVATE LAND

This document started after a few colleagues of mine were clamped at work. I wanted to check out the legality of clamping and find out what, if any, remedies there were. As I started trawling various forums and looking at the issues there was a distinct difficulty in trying to find answers. The information was there but not in anyone place.

This guide covers clamping on private land only and not on the public highway.

A good starting point in understanding your rights and the obligations of the clampers is contained in the Citizens Advice Bureau’s excellent advice guide.

You can find it at http://www.adviceguide.org.uk/t_whee...ivate_land.pdf.

However the guide has very little background and is necessarily brief. This document seeks to fill in the blanks and provide further information.

The Security Industry Authority refers to clamping as vehicle immobilisation. This can also mean towing away or blocking in. As these are all related remedies for trespass I will use the term interchangeably in this document.

The document includes my recommendations on what to do if you are clamped and what remedies you can seek. The list of remedies is not exhaustive and should not be treated as such.

Please note that I am not a lawyer and the following should not be construed as legal advice. While I have set out to be accurate the information could contain errors or omissions.

Any advice given is of a general nature and I will not accept liability for costs incurred for using any part of this guide. You should seek legal advice before embarking on any course of action recommended.
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Background and Legal Basis for Clamping

Clamping began in the 1980s as a controversial statutory measure to deter illegal on-street parking in Central London. It was the success of that measure and its extension to other congested city centres which encouraged its use by private landlords and the proliferation of clamping companies willing to carry out that work on their behalf. But whereas on-street clamping was tightly regulated with specific procedures, rights of appeal and controls over the amount of release fees, the opposite was true of private clamping, which was completely unregulated and a product of the common law.

The common law principle that clamping uses is a medieval remedy for trespass called damage distress feasant. This principle basically put is that something may be detained until damages have been recovered or satisfaction be rendered for injury they have done. In the past this principle was applied amongst other things for trespass of livestock. If someone’s livestock strayed onto someone else’s land and caused damage, the landowner was entitled to keep hold of (distress) the livestock until damages were paid. In the same way clamping involves keeping hold of (distressing) your car until you pay for the damages you have caused in parking where you have. This remedy also applies to towing a vehicle away.

Trespass is part of the legal system of torts. Under tort, damages are sought to restore a party to original position as best they can before commission of the tort. They are therefore punitive in nature. Contrast this with damages arising from breach of contract. Contract damages seek to put a wronged party in the position where they would have been had the contract been performed. They must not be punitive.

Clamping is illegal in Scotland thanks to a 1992 court ruling. In BLACK v CARMICHAEL (1992- S.C.R 709) it was decided that the clamping of a vehicle and the demanding of a release fee amounted to extortion and theft.

In England and Wales a different approach was taken. A Court of Appeal decision in 1995 gave clear guidance. The Case of ARTHUR v ANKER (Times Law Reports 1st December 1995) produced a landmark decision


On the 6th May 1992 David Arthur knowingly parked his car in a private car park belonging to commercial leaseholders for around 45 minutes whilst visiting the nearby local authority planning department. In doing so he disregarded a prominent notice warning that unauthorised vehicles would be wheel-clamped and a £40 release fee charge.

On returning to his vehicle he saw the inevitable clamp. He refused to pay any release fee and made an unsuccessful attempt to remove his own vehicle with a pick up truck – which led to an altercation between his wife and the clamper, Thomas Anker, which led to Mr Anker claiming he had been assaulted by Mr Arthur’s wife.

In the early hours of the following morning, Mr Arthur returned to the car park and succeeded in removing the two clamps, which had immobilised his vehicle, before driving away. Unfortunately this did not satisfy Mr Arthur who went on to sue Mr Anker for trespass to his vehicle. In rejecting Mr Arthur’s claim, the Court of Appeal laid down the principles of law which now govern modern wheel clamping.


These are:

• Where warning notices are prominently displayed, any motorist who parks a vehicle in defiance of that notice will be deemed to have consented to the clamping of his/ her vehicle and its subsequent detention until a release fee is paid.(implied consent)
• The amount of the de-clamping fee must be reasonable.
• Arrangements must be in place to enable the prompt release of a vehicle once the vehicle owner has indicated that s/he is willing to pay the release fee.

There remains uncertainty as to what constitutes a "reasonable release fee". In VINE v LONDON BOROUGH OF WALTHAM FOREST (Times Law Reports 12th April 2000), the original trial judge had regarded a release fee of £105 as reasonable- although the Court of Appeal later ruled the clamping illegal on other grounds.

On the morning of 6th March 1997 Ms Vine had been undergoing hospital treatment. She felt unwell and therefore parked her car (on private land) in order to leave the vehicle and be sick. She did not see the clamping signs, which were displayed. On returning a few minutes later she found that her car had been clamped. Under protest, she paid the release fee by credit card, but, assisted by the Automobile Association, she successfully sued for a refund.

The lesson from Vine is that even when signs are prominently displayed, a motorist who has not seen them cannot have consent to a vehicle being clamped. An underlying principle is that it is not only objective judgement must be exercised but also subjective judgement as well. Even if the signs are seen they have to be read and understood.


Also in amongst the judgement from Vine was a ruling on a reasonable release fee. In the original case a release fee of £105 was deemed reasonable. That amount today, taking into account inflation using the retail price index as a guide, would now equate to roughly £138.

These two cases decided that clamping in England and Wales by private companies was legal and provided a certain framework to govern the activities of the clampers. However with numerous cases of clamps being applied illegally when cars were legitimately parked, cases of intimidation, assault, threatening behaviour on or by the clampers it soon became clear that there was something wrong. Rightly or wrongly an act of parliament sought to correct the imbalance but instead of outlawing clamping as a remedy to unauthorised parking on private land it instead gave it cloak of legitimacy. It was lumped in with the Security Industry Act.

The Private Security Industry Act and The Security Industry Authority

In 2001 the Private Security Industry Act was passed. This has been amended and was finally enacted around 2004. The Act sets out some very strict rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and list some pretty stiff penalties for breaches including fines up to £5000 and 5 years in jail.

Part of the act authorised the setting up of an administrative body to oversee the licensing of Security Industry Operators and staff. This body is the Security Industry Authority. The Security Industry Authority (SIA) has a website (https://www.the-sia.org.uk/). You can obtain links to all the relevant legislation relating to the SIA. More importantly you can perform an online check to verify the license of any SIA licensed individual.

Licenses fall into two categories – frontline and non-frontline. Frontline licenses are required by all staff who will be undertaking day to day security duties including vehicle immobilisation.

Non-frontline licenses are required by the principals of firms whose employees undertake duties licensable under the PSI act.

Landowners have a responsibility to ensure that anyone performing vehicle immobilisation for a fee on their land is licensed by the SIA. There are pretty stiff penalties for landlords (and I guess this would mean CEO or directors if it’s a registered company) if they allow unlicensed operators to immobilise vehicles on their land on their behalf (i.e. acting as their agent).

The SIA do not regulate

• the amount of the release fee
• the time taken to release a vehicle
• the adequacy of signage around the site warning that vehicles may be immobilised
• the complaints procedure of the company employing the vehicle immobiliser

They SIA advise that :

“If a vehicle immobiliser uses threatening behaviour or intimidation they may be committing a criminal offence and we would recommend that you report such instances to the police”.

The SIA's remit covers the individual undertaking the licensable activity.


The PSI Act sets out that:

• The person immobilising the vehicle must be licensed by the Security Industry Authority.
• The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
• Upon payment a receipt must be issued. The receipt should contain the:
  • the name of the license holder
  • the signature of the license holder
  • the license holders SIA License number
  • the location where the vehicle was clamped or towed
  • the date when the vehicle was clamped or towed

Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.


These are

1)A vehicle must not be clamped / blocked / towed if:
a)A valid disabled badge is displayed on the vehicle.
b)It is an invalid carriage
c)It is a marked emergency service vehicle which is in use as such.


In The Private Security Industry Act 2001 (Licences) Regulations 2007

• “invalid carriage” has the same meaning as in section 253(5) of the Road Traffic Act 1960;
• “disability badge” means a badge issued under section 21 of the Chronically Sick and Disabled Persons Act 1970; and
• “Emergency vehicle” has the same meaning as in regulation 3(2) of the Road Vehicles Lighting Regulations 1989.

Any firm who does not comply with the above is in breach of the Security Industry Act and can be prosecuted.

It is also an offence to knowingly employ unlicensed clampers. Landlords can be fined up to £5000 and/or be jailed for up to 6 months per offence.


Valid Clamping?

Under the PSI Act and existing case law for clamping to be valid the following must be present or take place

1)There must be clear and prominent signs indicating a vehicle may be immobilised.
2)The signs should contain
a)A number at which an offer to pay the release fee can be made
b)The amount of the release fee (which should be reasonable)
3)Upon an offer to pay or payment being made the vehicle must be released in a reasonable amount of time
4)The person immobilising the vehicle must be licensed by the Security Industry Authority.
5)The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
6)Upon payment a receipt must be issued. The receipt should contain the:
a)the name of the license holder
b)the signature of the license holder
c)the license holders SIA License number
d)the location where the vehicle was clamped or towed
e)the date when the vehicle was clamped or towed

What to Do If You are Clamped

1)Keep calm, however distressing it may be, getting angry or upset will do you no good and it may get you arrested.
2)Take a note of any signage. It should be clear and visible. Look particularly at entrances/exits.
3)If you have a digital camera take pictures of any signage. Is it readable from where you stand? Was it prominently displayed where you came in?
4)If you have the ability record/make notes of anything said or done by the clampers. Particularly record or note any threatening or intimidating comments or behaviour.
If they demand extra because a tow truck has been called out refuse to pay and call the police. They must release once an offer to pay is made.
5)Ask to see the clampers SIA I.D. If they cannot produce it call the police. They are possibly unlicensed and thus committing an offence under the PSI act.
6)Pay on a credit card if you can or by cheque.
7)Do not offer any physical violence to the immobilisers you are liable to be arrested.
8) Do not damage a clamp (i.e. cut it off). You leave yourself open to a charge of “criminal damage” if you do. (There is some debate over whether if you found a clamping to be wrong e.g no signage whether you would be entitled to end the tort by a "self help" method e.g. bolt cutters. You have to make a judgement call). All that said proving a charge of criminal damage may not be that easy.
9)If you can remove the clamp without damaging it then you can do so.
10)Make sure you get a full receipt with all the required details
11)Check that the clamper is licensed on the SIA website.
121)If they are demanding a towing fee for a tow truck turning up or being called but not actually towing refuse to pay anything other than the release fee.

Can I Recover My Money?

Unfortunately there is no one clear path to go down to seek redress if you are clamped. More often than not you will have been forced to pay to have your car returned – regardless of whether the immobilisation is legal or not. Unless the firm in question is grossly in breach of the PSI Act then the only path left open to you is to attempt a civil recovery. This will need to be done via letter at first and if that fails then through the county court on the small claims track.

One final point is that these firms are often fly-by-night outfits. If you are seeking redress you should sue the clamping firm and the landowner as co-defendants. (landowner details can usually be obtained from the land registry).

Damages claimed for trespass must be paid to the landlord so unless the clampers and the landowner have a water tight agreement they may be acting unlawfully.

Stopping or Reversing Payment

If you have paid by cheque or credit/debit card there may be avenues open for to try and get the payment stopped or reversed.

If you can pay by cheque then do not put any guarantee information on the back. The simple thing to do is ring your bank and have a stop put on the cheque. It may cost you a small fee to do so but its better than a large amount. I suspect that most clamping companies will be unwilling to accept payment by cheque for this very reason.

If you paid by credit card or debit card then you could, reasonably in my opinion, claim that you were forced to pay under duress and that the transaction is invalid.

It may be that your bank or credit card company will be unwilling to do anything to help you. If that is the case then the your only remedy is recovery through the civil courts

Gather Evidence

Before attempting any recovery you need to gather evidence of any failures to comply with either the SIA legislation or the case law given under Vine or Anker.

Signage

One of the most common causes of complaint is the lack of adequate signage. Arthur Vs Anker clearly states that a sign must be present. Vine further enhances that by saying it must be seen and understood. If the signage is clearly posted and you’ve parked in clear violation then you’d better have a pretty good reason, such as in the Vine case, to bring a claim against the firm that clamped you.

However that said signage is often missing, inconspicuous or unreadable. Many posters on the consumer action group forums have mentioned that poor lighting as a reason for the signs being missed.

One “pay for a solution” website I have seen suggests that a guidance point for the visibility of signs is the Road Traffic Act 1991. As there is no guidance for size of no parking signs or their placement on private land other than the case law that they should be clear, visible and understood you could use the guidance on public land as a reference. Whether a court would accept this is debatable.

Excessive Charge

There is no legal limit to the amount that can be charged for a release fee. The Vine case said that a reasonable amount in 1997 was £105. This roughly translates to £138 in today’s terms (based on the CPI and rate of inflation March 200:cool:. It would be worth consulting a lawyer with a view to court action if you’ve paid significantly more than this. However this figure is a guideline and even if you’ve paid less than a court may decide it is still to high.

Not Licensed By The SIA

If the immobilisers are not registered it may render the clamping invalid and therefore you should be able to seek a refund. It may be that attempting a bargain along the lines of refund my money and I won’t report this breach will be effective. Bringing pressure to bear on the landlord may also bring results. In my view you would do better to report the matter to the SIA and seek redress via the courts as the clamping should not legally have taken place and by that reasoning no release fee should have been due. In performing the unlicensed clamping they have broken the law and both they and the landowner can be fined up to £5000 and/or be jailed for up to 6 months per offense.

Summary

It would seem the clampers have it going for them – at least initially. They get your money and backing in some cases from the Police. Knowing your rights will help you stop these excesses at source and also to seek redress through the courts.

I hope this guide will help.

Pin 1 On U

peter_the_piper

I hope you copy/pasted that lot, otherwise you would have much shorter fingers now. Thanks for the info.

pin1onu

peter_the_piper wrote: »

I hope you copy/pasted that lot, otherwise you would have much shorter fingers now. Thanks for the info.

I wrote it - so I have a copy stored in as a document. But yes Cut and paste is invaluable.....

Coblcris

I think that is worth adding that the SIA is a public body and so is subject to certain conditions.

usignuolo

This is very interesting. I was reading about a case recently where a man took his family to a private function at a large London pub (London Pride) and paid the pub to park on the land at the rear, owned by the pub, all above board. When he came out his car had been removed by the firm managing the parking on behalf of the pub and he had to go round to their pound and pay £700, to get his car back. It was late at night, he had his elderly mother with them and a long drive home.

The case was taken up by the local paper.

The landlady of the pub, said she had recently stopped the agreement with the clamping firm following complaints but they had not paid what they owed her and she was a creditor too. The clamping company owner could not be reached for comment. It seems like they made as much money as they could legally or otherwise before clearing off, once their contract was cancelled. I assume the firm has been liquidated.

The police were not interested as it was on private land. The interesting point surely is that all this seems to be happening quite outside the law and with no redress for vehicle owners when this happens.

stevectaylor

You can report it to the SIA and they will investigate.

http://forums.moneysavingexpert.com/showthread.html?t=1977441&highlight=wheel+clamping

Also, might be worth checking if the directors have a none facing licence as this is one rule easily hidden by companies as they do not have to display that one only the clamper himself does.

Geoff001

One day i went shopping in a retail park, currys, hallfords etc. bought a blender and some car wash. Proceeded to go accross the road to the post office for 5 minites. little to my knoledge some guy was watching it on cctv. In tiny print as i found out later if you leave the complex they will clamp you.
Got back from the post office to see the bright yellow clamp, was pretty angry to say the least. esp considering id just spent £100 quit on shopping.

up shot i hadto pay another£90 to get it off.

Be ware of the small print!:mad:

jkdd77

If you didn't see the sign, then the clamping was unlawful as per Vine [see OP].

However, you have to decide whether suing is worth the hassle, given the relatively low amount, given that small claims courts are a lottery [you might lose anyway], and given how many PPCs simply ignore CCJs.

Geoff001 wrote: »

One day i went shopping in a retail park, currys, hallfords etc. bought a blender and some car wash. Proceeded to go accross the road to the post office for 5 minites. little to my knoledge some guy was watching it on cctv. In tiny print as i found out later if you leave the complex they will clamp you.
Got back from the post office to see the bright yellow clamp, was pretty angry to say the least. esp considering id just spent £100 quit on shopping.

up shot i hadto pay another£90 to get it off.

Be ware of the small print!:mad:

Sir_Roger_deLodger

Geoff001 wrote: »

One day i went shopping in a retail park, currys, hallfords etc. bought a blender and some car wash. Proceeded to go accross the road to the post office for 5 minites. little to my knoledge some guy was watching it on cctv. In tiny print as i found out later if you leave the complex they will clamp you.
Got back from the post office to see the bright yellow clamp, was pretty angry to say the least. esp considering id just spent £100 quit on shopping.

up shot i hadto pay another£90 to get it off.

Be ware of the small print!:mad:

I carry a huge pair of bolt cutters for this very reason. Not had to use them yet, but I wouldnt hesitate. IF the clampers could get the Old Bill interested in a criminal damage charge, I'd be happy to go to court. I'd rather pay a proper fine to the magistrates than a release fee to a scumbag.

Meepster

jkdd77 wrote: »

If you didn't see the sign, then the clamping was unlawful as per Vine [see OP].

You might want to edit the post to something like: "If the sign was't easily visible and you didn't see it, then the clamping was unlawful"

usignuolo

If clamper or towing firm demands an "unreasonable fee" or extra fees for say towing, you say to call the police. There are numerous cases reported where the police refuse to attend in such cases saying it does not involve them as it is on private land and a civil matter - rather as they do for squatters..

Nor does it appear the government is in any hurry to change this state of affairs. See story below

This appeared in the DT in July 2009

Clamping is a state-sanctioned extortion racket

By refusing to clamp down on the clampers, the police are neglecting their duty to protect the public, says Alasdair Palmer.

DT 9th July


Extortion is a particularly ugly crime. It is committed regularly, apparently endorsed by the Government. Firms claiming to "protect" privately-owned land from trespassers clamp any car that makes the mistake of parking in an area patrolled by such a firm. The firm's agents then refuse to unclamp the car unless paid hundreds of pounds by the owner or driver, who has to pay up or lose his car. The clampers will increase the fine unless it is paid immediately.

The police refuse to intervene in these cases. They say it is a "private matter" between the person who parked the car and the bullies demanding payment. They cite a ruling by the Court of Appeal a decade ago, to the effect that a medieval law entitles land-owners to protect their land from damage by trespassers: if there is a sign which says "No parking – cars parked will be clamped", then anyone who parks enters into an implicit contract with the land-owner in which they accept that the consequences of parking on the land will be that they get clamped.

The cops use that argument as an excuse for walking away, but in reality, it is merely a feeble excuse for reneging on their responsibility to protect the public. The Court of Appeal ruling certainly does not entitle clampers to extort exorbitant fees from motorists.

As the barrister Dr Chris Elliott pointed out in an examination of the issues published last week, the Court of Appeal said nothing at all about the amount that could be charged. As Dr Elliott notes, such charges should at most be equivalent to compensation for the damage to the land done by the trespasser.

If the "damage" consists in the car being parked, then clamping it – which obviously prevents it from being moved – increases that damage. It amounts to a "self-inflicted" wound by the land-owner. No doubt a plausible legal argument could be made to the effect that when he clamps a car on his land, it is the land-owner who enters into an implicit contract with the car owner in which he consents to the damage – with the consequence that he has no right to demand payment for it.

The only other possible justification for charging those who park is that it is a punishment. But as Dr Elliott says, punishment is an activity reserved for the state: one private citizen cannot legally punish another for his conduct.

There are thus solid grounds for thinking that the obvious conclusion is correct: those who charge £200 or more to release cars they have clamped on private land are criminally extorting money from innocent people.

It would be very simple for the Government to legislate explicitly to put a stop to the practice. But amazingly, in its "consultation paper" on "vehicle immobilisers", the Home Office does not even address it. It merely suggests changes to the way in which private clampers are regulated All the regulation in the world, however, will be totally pointless if the issue of how much clampers are allowed to extract from motorists is not clearly defined and capped.

(For some reason the government is only focussing on registering clamping firms which is a bit pointless as clampers already have to be registered (with the SIA). )

The Government appears incapable of understanding that point – and so is set to continue its endorsement of extortion.