Parking and clamping etc

[StoneLaughter]

Let's assume a hypothetical situation where "George" parks in a private car park where the T&C's are clearly published and he overstays by ten minutes and returns to find his vehicle clamped with a £150 release fee.

Firstly, is the release fee covered by contractural penalties Law or is it a fee for a service?

Secondly, if the fee is a "penalty" under UTCCR and is therefore unenforceable, could "George" leave without his car and demand via letter that it is returned to him unharmed without charge; following this up with a Court Claim for his travel costs in the interim and the return of his vehicle? (Obviously the counter-claim for the penalty could easily be defended).

Finally, if the release fee is a service charge, are you deemed to have "ordered" the service by overstaying? What is the applicable Law here?

[Guest]

Re: Parking and clamping etc

The principles behind clamping and private parking tickets are quite different and the two should not be confused.

In Arthur & Anor. v Anker & Anor. [1997] Q.B. 564 the Court of Appeal ruled that where a driver had 'consented' to the risk of being clamped (by seeing the warning signs and ignoring them), clamping was (or could be) lawful (volenti non fit injuria) and a reasonable fee for de-clamping could be charged. They found that the fee of £40 charged in that case was reasonable. This was not related to any losses incurred. There was another argument in favour of the clampers - distress damage feasant, which allows land-owners to distrain trespassing chattels as security against compensation for actual damage (losses), but that was dismissed.

Therefore, if "George" were to leave his car and demand it's return, he may be leading the land owners to seek the ancient remedy of distress damage feasant. This is where something is wrongfully brought on to land and causes damage and the owner of the land has the right to seize it until compensated.

It would seem that many instances of wheel clamping do not involve signs that have been seen, or reasonable release fees. In such cases, the clampers are committing the criminal offence of blackmail, plain and simple. However, the police are extremely reluctant to get involved, usually claiming that it is a civil matter. Just because clamping can be lawful, if two essential conditions are met, does not mean that an unreasonable fee is merely a civil matter of quantum. If the fee is manifestly unreasonable, there is no legal justification and the actions of the clampers are criminal.

The immediate difference between private 'parking tickets' and clamps is that with the latter, if you ignore them you generally do not have use of your car - although if you can remove the clamp without damaging it, you do not 'owe' the clampers the fee for a de-clamp service that you did not use.

Any legality of private 'parking tickets' would come from contract and/or trespass. Trespass is actionable per se (without requiring proof of loss), but nominal damages would be awarded. Under contract, the most they could claim for breach as liquidated damages is the most they could actually 'lose' through the breach - e.g. if a car park was open from 9 - 5 and "George" failed to display a ticket, the maximum that they could have 'lost' is the cost of 8 hours parking.

[StoneLaughter]

Re: Parking and clamping etc

BBC NEWS | England | Car clamping woman sent to jail

Interestingly this article appeared without my knowledge and backs up Cetelco's post beautifully... Next thing to find out is "What is reasonable, and at what threshold do the charges become unreasonable?"...

[Guest]

Re: Parking and clamping etc

Here is another case, this time regarding private parking rather than clamping. Clearly £100 is not reasonable.

Judge quashes £300 parking fine...because it set out to ‘frighten and intimidate’ driver | Mail Online