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Wheel Clampers bite the dust?
For many years motorists in England, at least those who are ready to take desperate measures to find somewhere to park, have run the risk of having their car disabled by the application of a wheel clamp.
The case of Vine v Waltham Forest London Borough Council CA Times April 12th 2000 shows what bloody minded persistence can achieve. The Appellant sued for damages after having her car clamped when she parked on private land owned by the Respondent Council.
The case had to deal with three issues. Was there any trespass to the car, what level of notice was required, and what level of damages was appropriate.
The case is useful because it establishes that the clamping of a car is a trespass to that car. The Court of Appeal decision is considerable authority. It follows that wheel-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.
The second issue was whether the Claimant was given sufficient notice of the clamping policy. If she had notice then she was to be deemed to have consented to the clamping. In this particular case, the Claimant demonstrated that she was subject to very considerable distractions, and that it was a medical emergency which required her to stop.
The court looked at the case law regarding the giving of notice to those parking cars. These cases are well known to contract law students. In effect the court applied the standard that "there must be some clear indication which would lead an ordinary sensible person to realise ..." the existence of the notice, and also the requirement that the notice must be "brought home to the parties so prominently that he must be taken to have known of it and have agreed with it".
The third issue was the measure of damages. The more optimistic motorist must recognise that the court does not intend to encourage such claims by awarding exemplary, or even useful, damages. The court said "the conduct … could not be described as insolent, malicious or cruel, nor was it calculated to make a profit exceeding any likely compensation payable". Those who successfully argue this case in future may perhaps recover the cost of fees paid, but little more. The defendant here was a local authority, perhaps a private company might be less well treated.
One interesting question is this. The court clearly made the right of the clamping company to clamp a vehicle dependant on the implied consent of the motorists who parks being aware of the notice. What would happen if the motorist places a sticker on the windscreen, or possibly the wheels themselves, stating, in the clearest of terms, that they do not consent to any clamps being placed on the vehicle? What if that consent could not be implied? The court found that the clamping required consent. That consent was inferred, and no more, from a notice. An explicit denial of that consent might lead to interesting court cases.
Lastly, we must commend the firm of solicitors and Counsel for their enterprise and the Claimant for her persistence.
Another tempting question is whether wheel-clamping could be a criminal offence under the Administration of Justice Act 1970, which makes criminal the collection of civil debts by causing distress and public humiliation.
March 2005. The issue of the regiulation of housing estates was considered by the House of Lords in Akumah -v- London Borough of Hackney.
This industry isnow, alledgedly regulated. Anyone clamping your car has to have a licence from the Security Industry Association, and must produce a licence or certificate on request. There are also rules which limit the maximum amount which can be charged. Just how well all this can be enforced is another matter.
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