The Scandal of Car Clamping: a tentative legal opinion

Not to be relied on as an accurate statement of the Law

Please send comments and corrections so the opinions expressed can be amended and eventually validated

If you ever take a chance and park on waste ground make sure you look out for notices which might tell you the consequence. You should do this wherever you park, even in your friendly local supermarkets such Asda, Aldi and Netto to name but a few. Number Plate recognition will be used to log your entry into the car park as well as your exit and if you out stay your welcome you will get a threatening letter demanding you pay a ‘fine’ or else you can expect the bailiffs to come round and take your life away. Some Supermarkets have permitted areas as short as 30 minutes, Aldi 1hour 30 minutes. At the last named store we were 10 minutes late leaving their Leominster branch having had a major shop and having eaten some of their sandwiches we had bought before setting off. We have not shopped in an Aldi store since. I must get round to telling them that we have managed to do without them for14 months. The good ne2ws is that these systems do not involve clamping but they are given access to your details through the DVLA on payment of a fee. Yet another privatisation of civil liberties?

This blog is about what I shall call thug clamping operations. Alternatively you could call them protection rackets, demanding money with menaces outfits or opportunists blackmailers and extortionists. Such firms will rent a bit of waste land that may have been used for parking by the owner or tenant but the clamping firm comes along and offers an attractive rent so that they can run it as a non-car park. That is, a location for the entrapment of unsuspecting drivers who erroneously think that few minutes stay will not matter. It won’t if you don’t mind parting with a £250 ‘fine’ and a recovery vehicle charge of £100. Seems a great business opportunity, because that is what the Security Industry Act of 2001 calls such firms: ‘immobilization businesses’. These firms are separate from local authority run schemes which have the benefit of a detailed legislative framework. As far as I can see The Security Industries Act 2001 is the only legislation which applies and is naive and ineffective as things currently stand. (Although further research might prove me wrong on this, although I doubt it!). The Act seems to leave in place the common law as to what the clampers can charge for at civil law within the law of contract and assumes they will act within the law as to trespass to property and the person. If they step outside what may be lawfully done by a landownner when dealing with a trespass, or a breach of contract, the clampers are still liable in the same way as anyone else. All the Act seems to do is require them to have a licence if they want to clamp a car, with exceptions for disabled drivers and emergency services etc.

The ideal place is somewhere near a facility which does not have parking and where people will call in for a temporary stop. The whole operation is based on the misleading use of the word 'Fine'. One of the great difficulties people have in legal matters is keeping civil and criminal law apart. The word ‘fine’ refers to a criminal penalty for which criminal procedure will usually apply although the rise of the fixed penalty ticket has blurred the edges.( Possibly now to be extended to careless driving!) Thug clampers operate in most of our city centres so be careful

If a civil claim is being made against a driver then all that can be claimed is damages for the loss suffered. This can be done in advance by agreeing in the contract a reasonable amount which is supposed to reflect any anticipated loss, but it cannot be an arbitrary sum. Calling the fees claimed 'fines' is just part of the intimidation process which is based on the belief that most decent people will pay up for a quiet life. The phrase ‘civil penalty’ is nearer the truth, but can still have the same effect in a drivers mind.

This sum is only enforceable if it is 'reasonable' and can only be contractual damages if there is a properly displayed warning notice. The damages are in theory linked to the value lost by the loss of the parking space. If a clamper is present and starts to clamp the vehicle before the driver has even got out of the car the loss to the occupier would have been very little had the clamper simply told the driver to leave. Since these operators are not really trying to make money from parking fees, but by entrapping people, that is the last thing they want. To detain the vehicle and demand money in such circumstances could amount to blackmail. To simply pluck a sum out of the air is not a true attempt to assess the damages in advance and amounts in my opinion too an unenforceable penalty at civil law. Contract law does not allow penalties, it only allows 'liquidated damages 'i.e., the genuine attempt to assess damage in advance, as explained above.

If there is no notice reasonably displayed then the law which applies is trespass and damages can again only be reasonable. Usually damages for trespass to land can only be nominal i.e., small, what is some disturbed gravel worth? Unless specific loss can be shown the best remedy for trespass is better fencing or eviction by request or reasonable force.

By clamping a vehicle the clampers are seeking to seize the vehicle as security for payment of the ‘fine’. A car repairer can hold onto a car against payment and this would be a legal lien. Holding onto an entrapped car where it is done immediately is probably an illegal lien as it is not need. Trespass could however apply to the clampers themselves if their actions are unnecessary. They will commit trespass to goods when they interfere with the car or trespass to the person if they purport to detain the driver, or reasonably give that impression. This would amount to the civil wrong of false imprisonment. If the driver is put in fear then this could be the civil wrong of assault. If the driver is restrained then this makes these civil wrongs easier to show. Consequently the driver could claim damages for these trespasses.

Whether the money with menaces was used in the context of either contract or trespass any money paid above what is reasonable can be claimed in an action for money had a received, sometimes known as a claim for unjust enrichment. In such an action the driver might be able to claim that his losses were aggravated by the trespass to his goods and/or person, and would be entitled to ask the court to award punitive damages where the clampers actions were oppressive. This gives the civil courts an opportunity to show that they think the behaviour is unacceptable and should be punished.

These sites have little to t do with parking but amount to protection money rackets which if it is not prohibited by any legislation should be. A Government consultation exercise finished at the end of July but publicity only seems to have been attracted just before the closing date.

Clamping fines might well be a breach of our human rights but they are more importantly probably a breach of several of our own common laws. The firms rely on the citizen’s ignorance of the law and/or their reluctance to take on the clamping bullies, knowing full well that ignorance of the law is no defence as well as knowing that it is a business opportunity well worth exploiting with the support of the pathetic Act of 2001 piece of legislation.

PLEASE COMMENT: if you think this statement of the law is wrong and/or can be improved. Also, keep an eye out for any draft legislation that emerges out of the consultation process. This could be very helpful as I am helping a victim of clamping at the moment and it would be good to have a strong case and get some publicity against these firms.

Case law needs to be researched further with full citations and any statutory points missed out need to be dredged up.

If you have had a bad ‘clamping experience’ in the UK then please leave your story.