Urgent help - clamped in Southall (Iceland Car Park)

Coupon-mad

Hi makara,
Have you lost the paragraphs about signage? Lack of clear and fair signage is a very important point, as well as the lack of signatures and location on the receipt.

I would also reinforce the fact that you saw no clamping warning signs when you drove in. As confirmed in the case of Vine v Waltham Forest, clamping is unlawful unless the person who applies the clamp can demonstrate that the owner of the car consented to the clamping (to establish that consent the car clamper must show that the parker knew of and assumed the risk of, being clamped). But don't put that last bit in brackets in your NBA, you don't want to tell them what their defence should be.

Here's Vine mentioned in a Law forum, it's also listed in pepipoo cases:

http://www.swarb.co.uk/lawb/genClampersBiteDust.shtml

To reinforce your legal position re the signs, I think it would be best if you say that you saw no clamping warning signs as part of this sentence:

'As I was entering the Car park, I noticed what appeared to me to be a Breakdown truck...'

maybe change to:

'As I was entering the Car park, I saw no clamping warning signs whatsoever - only what appeared to me to be a Breakdown truck...'




HTH
(saw your pm but as I'm at work and on the run I could only grab enough time to post this here at the mo).

makara

Hi, CM.

Many thanks - yes, I had removed them as I thought they may work against me.

I am re-pasting my amended message (see below) - is there anything in your opinion I should add/change/remove? Or is it now all OK? If possible, please let me know before the Post Offices close today, i.e. say by 4 p.m.

In particular - the part about "seeing the signs in Daylight hours"? Include? Or remove?

Thanks again for all your help :-)

========

Dear Sirs,


Overview of claim:


I was clamped by Park Direct Ltd. on the 10th of July 2010. Under duress (all details below), I paid via Debit Card using the "Chip and Pin" machine supplied by the Clampers - and was given a "Receipt" for the "Release fee", after which they unclamped my vehicle.


I have since taken legal advice, and have been advised that the "Receipt" paperwork given to me is illegal - thereby rendering the Clamping illegal - and thereby rendering the Fee taken from me also illegal.


I am hereby notifying yourselves of my intention to pursue in a Civil Court an action towards a full refund of the wholly illegal "Release fee" I paid of £250 against those parties to whom this Notice is addressed (namely the Landowner, i.e. Mr. S***** and the Clamping company he has hired to operate in that car park, i.e. Park Direct Ltd.) - both of whom I consider jointly and severally liable for the return of the sum - unless the full £250 is returned to me within 7 days of receipt of this letter, which I am sending by Recorded Delivery to both parties.


If I do not receive a full reimbursement from yourselves within 7 days of receiving this letter, I will be initiating Court Summons to yourselves, which will incur additional costs I will pursue you for on top of the £250 clamping fee - including - but not limited to - any loss of earnings for my attending court, and any postal fees and administrative and legal fees.



Full details of case:


On the 10th of July 2010, I parked my vehicle (a Peugeot 306 car - Registration XXXXXXX) at 22:00 in the Quality Foods / Iceland customer Car Park (Address - 47 - 61 South Road, Southall, Middlesex, UB1 1SQ) to pay a restaurant on the opposite side of that road.


The visibility in that Car Park was very poor at that time of night, as virtually no lighting was present.


As I was entering the Car Park, I did not see any "Warning signs" - I only saw what appeared to me to be a Breakdown truck parked and stationary a short distance (about 10 feet) away from my car. There were two men with that truck (who I later found to be the Clampers). They both *clearly* observed me parking my vehicle near their vehicle, but they did not say anything to me - nor did they give me any warnings not to park there.


I returned to said Car park just 1 minute later, i.e. at 22:01 to find that my vehicle had been clamped.


I spoke to one of the Clampers to ask him to unclamp my car - to which I was told it would cost me £250. I was also told that if I paid by Credit Card (as opposed to Debit Card) a further fee would be added - and if I did not pay there and then, the car would be towed away and the release fee would increase substantially. Under duress, I paid £250 by Debit Card and was given a "Receipt" - whereupon my car was unclamped.


I have attached a copy of the afore-mentioned "Receipt". It is illegal due to these points -


********

Point 1) Neither of the two Licensees (in this case the Licensees being the Clampers) SIGNED the Receipt I was given upon paying the Fee. The PSIA Act (Private Security Industry Act (2001)) specifically states that Licensees providing a Receipt for "Release fees" for immobilised vehicles must provide their Names *AND* Signatures on said Receipt.


Also, the Clampers wrote the "location" part of the receipt as "Quality Foods", which is not detailed enough a location to be meaningful. No actual address of the
location was written on the Receipt at all. The same below PSIA Act specifies a location must be given. "Quality Foods" on its own does not constitute any meaningful location.


The specific Act is pasted below for your benefit. Please note that my additional points continue under that Act.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.opsi.gov.uk/si/si2007/uksi_20070810_en_1

Statutory Instruments
2007 No. 810

SECURITY INDUSTRY
The Private Security Industry Act 2001 (Licences) Regulations 2007

Made

13th March 2007

Laid before Parliament

16th March 2007

Coming into force

6th April 2007

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 8, 9 and 24(1) and (5) of the Private Security Industry Act 2001(1), having regard to the definition of “prescribed” in section 24(1) of that Act.

In accordance with section 24(4)(2) of that Act he has consulted with the Scottish Ministers and the Security Industry Authority.

6.—(1) The granting of a licence to a person to engage in front line licensable conduct which involves the carrying out of any activities specified in regulation 4(4)(b) or (c) (immobilisation, restriction and removal of vehicles) shall be subject to the conditions specified in paragraph (2).

(2) The conditions specified for the purposes of this paragraph are—

(a) the licensee shall not immobilise, remove or restrict a vehicle in accordance with paragraph 3 or 3A of Schedule 2 to the 2001 Act if the vehicle is an invalid carriage or if a valid disability badge is displayed on the vehicle or if the vehicle is an emergency vehicle which is in use; and

(b) the licensee shall, on collecting any charge for the release of a vehicle that has been immobilised, removed or restricted in accordance with paragraph 3 or 3A of Schedule 2 to the 2001 Act, provide a receipt which contains the information specified in paragraph (3).

(3) The information specified for the purposes of this paragraph is—

(a) the *location* where the vehicle was immobilised, removed or restricted;

(c) the name *and signature* of the licensee;


++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


********


Point 2) The Clampers have filled in the £250 release fee on the Receipt as being for "Tow or Cancellation" - this is unlawful, since no Tow truck was called out (nor called out and then cancelled) specifically for my vehicle. As mentioned above, the Tow truck was *already* in the Car Park when I arrived.


Since I arrived in the Car Park at 22:00, and returned to it at 22:01 there is no practical way my vehicle could have been in the process of being towed away. My vehicle was still on the ground when I returned to it. It was NOT on the tow truck. Nor was it in the process of being hoisted on to the tow truck. In fact, there wasn't even any hoisting equipment attached to it. In short, there was no evidence it was in the process of being towed away.


3 minutes took place between my giving my Debit card to the Clamper, and him processing the payment through his "Chip and Pin machine" - and then he wrote out the release Receipt. Hence the times of 22:00 and 22:04 being written on said Receipt. Again, not long enough a time frame to start any sort of towing procedure.


********


Point 3) Upon returning to said Car Park during Daylight hours, I noticed two Pay-and-Display machines, which state that Pay and Display is only operative up to 20:00 hours. However, the Pay-and-Display machines block from view a "warning sign" which is placed right behind them - and that sign becomes impossible to see at 22:00 at night, when it is too dark.


Again in Daylight hours only, I noticed that there are a few small warning signs on the far walls of the Car park detailing the Terms of Parking if one has parked in that Car Park - but they are totally unreadable at night, as no light falls on them. Also, they are placed nowhere near where I had parked my vehicle, so I could not have seen them.


Additionally in Daylight hours, I have observed that these same signs are placed too high up on walls to be readable - and the fonts used are too small to be able to read the contents of the signs.


Further after taking close-up photos of said Signs in order to be able to read them, I have found the wording of said Signs is vague and confusing, leading to the reader being confused in trying to interpret said rules in forming any "contract agreement" - specifically -


"VEHICLES STOPPING OR WAITING ON THIS LAND NOT DISPLAYING A VALID PERMIT OR TAX DISC WILL BE CLAMPED AND OR TOWED AWAY AND OR ISSUED WITH A FIXED PENALTY CHARGE IMMEDIATELY WITH NO NOTICE".


Since my vehicle had a Valid Tax Disc on display, I had fulfilled one of the above criteria to park there - and should NOT have been subjected to this illegal action of clamping my vehicle.


********

Point 4) The fee of £250 is entirely unrepresentative of any "work" carried out by the Clamping company, and is clearly a Penalty. The Law states private companies or individuals cannot exact a Penalty on another individual.


Please note that there will be no further correspondence from myself to you following up this Notice Before Action letter.



Yours Faithfully,

Coupon-mad

Yes, that looks fine and the info about the signage is a really important point, as you'll have seen from the Vine case.

A clamp is illegal if there's no 'implied consent' - and without visible/clear signs they're scuppered. Without signatures and location on the receipt they're scuppered too.

I think the 'daylight hours' info is great, did you take pictures when you were there? You may need them in case they change the signs before it gets to Court.

I did just bump your thread on pepipoo but it's a busy forum and you may not get anyone else replying to your case right now (they're all at work, as I am too!).

I reckon send it if no-one else adds anything. Then you'll probably hear nothing. They'll think you are bluffing, prove otherwise after the eighth day by filing your N1 form at your local County Court (take pepipoo advice again at that stage, about wording the actual claim, I haven't done this yet but I do have a case planned against an airline - so I will follow your Small Claim with interest! ).

makara

Thanks a ton :-) - yes, I did take photos. However, I will not be including them in this NBA (I think someone on the other forum advised me to save them for the courts?)


Here you go - if you click on the thumbnails you will see the photos in all their dark glory -


http://s686.photobucket.com/albums/vv221/makaras/PSIA/


- as you can see, I have deleted all the daylight ones (the other forum advised not to send any in daylight, as they look "too clear") - and only left the 3 most relevant at night.


I will send off the 2 copies of this NBA to each party today - thanks a ton for taking time out to read this - and good luck with the Airline :-) .

AndyAndyAndy

If you feel like chucking another point in, it is illegal for a contract which you supposedly entered into by parking on their land to penalise you. In civil law they cannot penalise you only invoice you for costs which must be justifiable. They will not be able to justify a £250 cost for 2 men working for one minute with no travel to your vehicle. I'm sure if you mention the possibility of this defense on pepipoo they will be able to expand on the legislation and details of it and structure the defense for you far better than I can.

makara

AndyDent93 wrote: »

it is illegal for a contract which you supposedly entered into by parking on their land to penalise you. In civil law they cannot penalise you only invoice you for costs which must be justifiable. They will not be able to justify a £250 cost for 2 men working for one minute with no travel to your vehicle.

Many thanks, AndyDent - that is very useful. I don't have time to show it to the other forum as I need to get this letter out today, but this is how I have structured your wording -

My original point was -

Point 4) The fee of £250 is entirely unrepresentative of any "work" carried out by the Clamping company, and is clearly a Penalty. The Law states private companies or individuals cannot exact a Penalty on another individual.


I have now amended that to read as -

Point 4) The fee of £250 is entirely unrepresentative of any "work" carried out by the Clamping company, and is clearly a Penalty. Civil Law states private companies or individuals cannot exact a Penalty on another individual. It is illegal to form a contract which a person supposedly entered into by parking on your land, and thereby also illegal to penalise them. In Civil Law you cannot penalise a person - you can only invoice them for costs which must be justifiable. There is absolutely no justification for a £250 cost for two men working for only one minute - with absolutely no travel to my vehicle.

Do let me know if that reads ok, or needs altering - thanks a ton.

Coblcris

One has to question whether or not Park Direct had the legal authority to make the offer to treat.
In most instances the Private Parking Company has neither landowner nor agency rights.
I would challenge this in the case papers using whatever method suits. I suggest a simple negative averment but use whatever you like most that gets the background contracts and rights into the case.

makara

Coblcris wrote: »

One has to question whether or not Park Direct had the legal authority to make the offer to treat.

Many thanks - but I did not understand the phrase "offer to treat?".


I did phone the landowner to tease out of him if it was he who had hired the clampers - he told me "Yes, I hired them - so they are legal".

I of course did not tell him WHY I was asking him this ;-)

makara

P.S. I have made mention of my photographic evidence more explicit now - to scare the other parties -

++++++++


Further still, upon taking close-up photos during both Daylight hours and Night time (i.e. 22:00) hours (all of which I will be presenting as photographic Evidence to a County Court if a refund is not given to me within 7 days) by way of the "Zoom" feature on my digital camera of said Signs in order to be able to read their actual contents, I have found the wording of said Signs is vague and confusing, leading to a reader being confused in trying to interpret said Contents in forming any "contract agreement"

Coblcris

makara wrote: »

Many thanks - but I did not understand the phrase "offer to treat?".


I did phone the landowner to tease out of him if it was he who had hired the clampers - he told me "Yes, I hired them - so they are legal".

I of course did not tell him WHY I was asking him this ;-)

http://www.google.co.uk/search?q=offer+to+treat