Shown below are example court cases for clamping and removal on Private Land

 

CASE 8 – Luck Stopforth vs City Watch Enforcement
April 2012

Another victory for the motorist after a court orders a clamping firm to refund a clamping fee of £205 after ruling that the signs were too small.

Mr Luke Stopforth parked his car in a car park behind High Street in Cosham Hertfordshire. His car was clamped for failing to pay and display. Mr Stopfirth argued that the signs were too small and that the car park previously offered an hour and a half’s free parking. The judge at Portsmouth County Court ruled that City Watch Enforcement was wrong to clamp Mr Stopforth’s car and fine him £205 for failing to pay and display. The court decided there was confusion over whether he had to get a ticket because parking signs were unclear at the time of the incident last July.

The victory could allow other motorists to pursue City Watch enforcement in the courts although initially we would suggest that they simply write to the company pointing out that they are aware of the court’s decision and asking for their money back. Apaarently the small signs were replaced on 23rd July last year with larger signs so we suspect that motorists clamped after then may not be successful.

Mr Stopforth was assisted by local MP Penny Morduant.

COMMENT – This case was won by the motorist as the signs advising a motorist that parking penalty notices would be issued were too small. We would say that the motorist seemed lucky a sthe signs were placed prominently at the entrance to the car park although we do accept that the writing in small.

 

CASE 9 – Vine v. Waltham Forest London Borough Council

Court of Appeal CA (Civ Div)
Roch, Waller and May L.JJ.
ROCH L.J.

We have taken the following from the published decision. We have only taken certain points from the ruling as the ruling itself is very long. However the case is available on the internet in full or we can email it to you. The lady who had been clamped lost at the original court hearing and this is her appeal judgement.

The following is extracted from the published very extensive judgment which may be seen at http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html. The lady who had been clamped had lost at the initial court hearing. This is her appeal judgment.

 

Roch LJ

This is an appeal from the judgment of Mr Recorder Crawford, C.B.E. at the Central London County Court on 18 May 1998 dismissing the plaintiff’s action against the defendant local authority with costs.

The proceedings arose out of an incident which occurred on 6 March 1997 when the plaintiff’s car was clamped on private land.

The East London College, who owned the land, availed themselves of a service provided by the defendant local authority to deter unauthorised persons parking in these parking spaces by operating a system of wheel clamping or towing unauthorised vehicles away.

Whilst driving along the plaintiff experienced pain, feelings of sickness and she became distressed and parked her car under the railway bridge in the southern of the two parking bays at that point.

There was at least one sign in the car park which may have been obscured by a parked Range Rover.

It was accepted by a witness for the defendants, a Mr Parker, that the Range Rover would have obscured the notice for someone sitting in the driving seat of a car.

The plaintiff having parked her car and without, as the Recorder found, seeing the notice, left her car, crossed the access road to a point where there was a hoarding at which point she vomited. The plaintiff was away from her car, so that her car was unattended for some three or four minutes.

When she returned to her car it had been clamped. The person who had clamped it was Mr Parker, who is employed by the contractors employed by the defendant authority.

At first Mr Parker refused to remove the clamp until the plaintiff had been to the defendant’s offices and paid the sum of £105.

Subsequently he accepted payment of the sum of £105 which the plaintiff paid using a credit card.  As a result of the use of a credit card the plaintiff was charged a further £3.68 to cover the credit card company’s charges.  Of the charge of £105, the evidence was that the contractor received £60 and the defendant authority retained £45.

Another witness called by the defendants, a Mr Godfrey, gave evidence, which the judge accepted, that as far as the defendants were concerned this was not a profit making operation, the £45 merely covering the defendant’s costs of operating this scheme.

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

The plaintiff further alleged that she had repeatedly attempted to obtain a refund of the sum of £108.68 without success; that that sum had been excessive and unreasonable–a reasonable fee would have been £40.

The plaintiff claimed the return of the £108.68 or that sum by way of damages; alternatively £68.68, the sum paid less what would have been a reasonable fee and interest and exemplary damages.
The defendants in their defence asserted that sufficient warning that unattended vehicles would be clamped had been given; denied that the plaintiff’s car had been wrongly immobilised or that it had been wrongly detained.

The defence asserted that the payment of £105 was a reasonable charge for them to make.

The defence denied that the plaintiff was entitled to exemplary damages at the original hearing.  The Recorder found that the defendants had been entitled to clamp the plaintiff’s car. The Recorder went on to find that the charge that the plaintiff had had to pay was not exorbitant.

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

It was a designated area prohibiting parking and making it clear that vehicles would be towed away.  I cannot help but sympathise with Mrs Vine for the way it happened, on the day it happened, and that the swiftness with which it happened, but there is no doubt that she was a trespasser in the area where she was parked.  I am not persuaded by the argument that when she parked there the sign was not there visible for her to see.

It was unfortunate that Mrs Vine had not seen it, because as a result she was clamped. She was a trespasser at the time of the clamping.”

The plaintiff’s case on the central issue is that the judge in the original hearing, having found that she had not seen the notice, should have gone on to hold that the clamping of her car was a trespass and that the maintenance of the clamp on the car until the sum of £108.68 had been paid was a wrongful detention of the plaintiff’s car by the defendant’s agent.

The act of clamping the plaintiff’s car was a clear trespass, to which the defendants had no defence unless they could establish that the plaintiff had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped.  If the plaintiff had not seen the notice, then she could not have consented to, or voluntarily assumed the risk, of her car being clamped.
The defendant’s case is that, the Recorder having found that the notice was clearly visible, it should be inferred that he concluded that the plaintiff saw the notice and consented to her car being clamped or voluntarily assumed the risk of that occurring.

Alternatively, and this is the ground principally urged upon us by Mr Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judged objectively and not subjectively.

Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice.  Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.
The act of clamping the wheel of another person’s car, even when that car is trespassing, is an act of trespass to that other person’s property unless it can be shown that the owner of the car has consented to, or willingly assumed, the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped.

Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.  In this case the Recorder might have reached such a conclusion about the plaintiff’s state of knowledge, but he did not do so.
The Recorder made a clear finding of fact that the plaintiff did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the plaintiff’s distressed state, the reason why the plaintiff parked and left her car hurriedly.  It was the plaintiff’s evidence that she did not see the sign. There was never any suggestion that the plaintiff was other than a truthful witness.

The Recorder held, correctly, that the plaintiff by parking her car where she did was trespassing. Unhappily, the Recorder jumped to the conclusion that the plaintiff had consented to, or willingly assumed, the risk of her car being clamped.  In making that leap the Recorder fell into error, in my judgment.  Consequently I am of the view that the Recorder’s decision on the basic issue in this case must be reversed.
It follows that the plaintiff is entitled to a return of the £108.68 or alternatively that sum by way of damages. This finding renders it unnecessary for this court to consider whether the charge which the defendants were levying was or was not exorbitant.

The compensation payable to the plaintiff will be the £108.68 and the interest of £17.64 and the sum of £5 for loss of use of the car. The defendant’s conduct was not calculated by the defendants to make a profit for them which might well exceed that sum.

An award of exemplary damages is not the award of compensation for actual loss.   It is an award designed to punish a defendant for conduct which is sufficiently outrageous to merit punishment, or to deprive a defendant of an improper profit or advantage.  Such damages are rarely awarded today.

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

 

Waller LJ

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

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

The judge then referred to other cases including:

Mendelssohn v Normand Ltd [1970] 1 Q.B. 177, 182 Lord Denning MR

Thornton v Shoe Lane Parking Ltd [1971] 2 Q.B. 163, 170 Lord Denning MR View external link

Hood v Anchor Line (Henderson Brothers) Ltd [1918] A.C. 837, 847 View external link

Mellish LJ in Parker v South Eastern Railway Co (1877) 2 C.P.D. 416, 424

Next: Clamped or Towed on Private Land