Clamping And The Law: Guest Post

Our regular contributor Peter Hargreaves has taken the trouble to have a good look at the law relating to clamping, a subject that often makes me cross because of its frequent unfairness and the fact that most politicians are indifferent to the abuses that take place. Peter's piece is a long and thorough one, and well worth a read.
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Vehicle Immobilisation

This is a general article about the law relating to clamping of vehicles and the views expressed are mine alone. Persons affected by clamping activities are advised to seek appropriate legal advice since much will depend on the exact facts of the case.

Introduction

CLAMPING (or some other form of vehicle immobilisation) happens to the vehicles of hundreds of people each day in England and Wales. It can happen on private land as well as in public places and it is big business. Whilst parking in public places operates under a statutory regime (Traffic Management Act 2004), parking on private land is largely unregulated. Politicians would be unwise to ignore the public anger which continues to build over this issue. Although changes to the law were made by the Private Security Industry Act 2001

The law is still perceived to be unfair to the general public and to be too favourable to the clampers. The main change under the 2001 Act was the introduction of licensing of those who carry out clamping. The Automobile Association (AA) has referred to private parking enforcement being “out of control”. The government has made proposals to bring all “clampers” within a Code of Practice but the AA argues that it will not work.

It is difficult to see why government cannot bring private clamping activities under the detailed control of the law rather than relying on codes of practice. There appears to be a lack of political will to do so.

Private land “owners” often permit drivers to park when, for example, using the owner’s business premises. Provided the driver parks within the permitted terms then he will not be a trespasser and the vehicle should not be clamped. Indeed, to clamp a vehicle which is parked within the permitted terms would be a trespass (to goods).

The civil law relating to clamping was considered by the Court of Appeal (Civil Division) in Vine v London Borough of Waltham Forest.[2000] EWCA Civ 106.


In the Vine case, the earlier case of Arthur v Anker and another [1997] QB 564 is discussed.
The Vine case

The appellant in this case was Helen Vine. The respondent was a local authority (Waltham Forest). The local authority had engaged a contractor who carried out clamping activities on certain private land near to a railway station. Vine had been to a medical appointment at which she received bad news. Whilst driving home she was distressed and felt unwell. Accordingly she pulled on to the land and parked, got out of her car and went to a nearby hoarding where she vomited. She was out of the car for about 4 minutes during which time her car was clamped. There was a sign warning drivers that clamping was in operation. The sign was yellow in colour and was placed about 10 feet high on a wall. At trial the judge found as a fact that Vine had not seen the sign. It was on the basis of that finding that the Court of Appeal held that Vine had neither consented to nor voluntarily assumed the risk that her car might be clamped. The local authority was therefore liable in trespass.

The judgments suggest – but do not finally decide – that where an “ordinary and sensible person” (per May LJ) would have realised that clamping was possible then drivers would generally be taken to have the required knowledge so that clamping would not be a trespass. There would have to be adequate signage – “prominent and clearly positioned and displayed” (per May LJ). It might also be inferred from the facts of the case that those operating clamping would be well advised to have more than a single prominent sign.

Since the Vine case, clamping has become a very commonplace activity and it may well be that some very particular circumstances would be required before a court is likely to find that a driver parked without the necessary knowledge.

The Arthur case

In this case it was found that Mr Arthur parked with full knowledge of the clamping. There was adequate signage warning of the clamping. Sir Thomas Bingham MR said:

“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.”

Earlier in the Arthur judgment, Sir Thomas Bingham Mr had said:

“I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here.”

Those remarks were clearly obiter dicta but, it is submitted, would be followed by subsequent courts in view of the good sense which they clear contain.

Other legal avenues?

It is hardly surprising that aggrieved persons are seeking other legal possibilities in their attempts to curb the activities of clampers but few such avenues are at all clear in their applicability.

Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

There has been some suggestion that the Consumer Protection from Unfair Trading Regulations 2008 might offer some protection to parkers. The regulations are here

and guidance has been made available.

Any possible use of these Regulations in relation to clamping remains to be tested in the courts. The Regulations implement Directive 2005/29/EC (The Unfair Commercial Practices Directive).

The Regulations are difficult but are clearly aimed at what might be colloquially referred to as “sharp practices” between traders and consumers. Regulation 2 is a lengthy interpretation section and is mandatory reading for anyone trying to understand the regulations. A key definition is that of “commercial practice” and it will be seen from the definition that a direct connection is required between what the trader does and the “promotion, sale of supply of a product to or from consumers ….” [Note: words such as “trader”, “product”, “consumer” are also defined in Reg. 2].

Unless some act (etc) comes within the definition of “commercial practice” then you do not even get to first base with any of the possible offences created by Regulations 8. In my view, clamping activities do not related directly to products and so the clamping activity would not be a “commercial practice” within the meaning of the regulations. Even if I am wrong about this, the clamping would not be “unfair” (Reg 3) or “misleading action” (Reg 5 or “misleading omission” (Reg 6) or even “aggressive commercial practice” (Reg 7) since aggressive practice has to be directly connected with the promotion, sale or supply of a product.

Other offences?

Certainly those “companies” who engage in clamping would do well to adhere to the Companies (Trading Disclosures) Regulations 2008 , but these regulations do nothing to address the issue of individual (sole trader) clampers and many clamping activities are conducted by such individuals.

Yet another suggested angle is the Unfair Terms in Consumer Contracts Regulations 1999
, but these are clearly concerned with contractual situations – (essentially contractual terms in “standard” take it or leave it type contracts) - and, in any event, there is no contractual relationship between a clamper and the driver.

Would the Protection from Harassment Act 1997 offer any protection? There may be some situations in which it might but it is hardly likely to assist at the actual place where the car has been parked or at the time when the driver is trying to get his car released.

It has also been alleged that some clampers engage in fraud contrary to the Fraud Act 2006 – particularly section 2, and some forms of conduct might be caught by this – e.g. making a false representation that a “tow vehicle” has actually been called out and, as a result, an additional fee is required.

Of course, anyone clamping vehicles without a licence is committing an offence under the Private Security Industry Act 2001.

It has also been mentioned that clampers might be issued by the magistrates’ courts with anti-social behaviour orders. Given that only certain types of applicant are permitted (e.g. local authorities or the police) this possibility seems unlikely though it seems that Windsor is considering the idea.

The Private Security Industry Act and The Security Industry Authority
The Private Security Industry Act 2001 sets out rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and prescribes penalties for breaches.
The act set up the Security Industry Authority .

Alleged illegal activity may be reported to the SIA via their website and it is possible to check whether any individual is licensed. Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.

What needs to be done?
The balance of the law seems to be tipped against the driver and it is difficult to disagree with the Automobile Association that the latest Code of Practice planned by government is unlikely to work satisfactorily. Tighter legal regulation is required akin to that applicable to parking in public places. This would build on the existing requirement for clampers to be licensed. Fees need to be regulated and kept within reason and there should be a truly independent adjudication mechanism through which redress could be obtained in appropriate cases. Of course, many would prefer the system for England and Wales to be the same as that in Scotland where clamping of vehicles parked off-road is basically illegal.

Peter Hargreaves
September 2009.