Wheel clamped - unfairly extortionate fine?

[Andy9012]

Hi all,

 

got horribly clamped the other night, to be fair it's my own fault. Basically I parked in a private car park that I have used for years on the occasional time i go to the town cinema.

 

There are signs that say permit holders only and after I got clamped i saw the signs laying out the clamping fee's and charges - they weren't obscured or anything just up on the wall so if you parked in the car park in the middle like I did you wouldn't be able to read them unless you got up close.. what I am saying though is that I think I got clamped fair and square, I'm pretty sure everything was in order.

 

The fine though amounted to 320.00 - 120 for the clamping and then removal charges etc. It seems that the car was clamped earlier and then when I showed up at midnight a tow away truck was there apparently to tow it away - my thinking is though that they had been waiting a while guessing that i would be back.

 

My question is - assuming that the clamper's credentials are all in order and that the signs were all correct do I have any chance of a court claim on an unfairly excessive fee or do I just have to take my medicine?

 

cheers

Andy

[Howard0181]

It would be helpful if you could take some photos of the signs and post them here. How large was the car park and how clear ar the signs?

 

If the signs are not clear then yes you have a case.

 

If teh sings are not clear and are misleading you have to first write to the parking company and object to the clmaping and give them 14 days to repay or you will issue a county court summons.

 

Also, did you pay by credit card?

[carolyn4863]

I was clamped the other week round the corner from the Solicitor's office where i work. Someone had blocked the entrance to our car park and i had parked on the private property up the road with the intention of coming into the office and asking whoever had blocked the car park to go and move their car. Once in the office however, i soon became sidetracked with various different things and forgot until about an hour later. By that time the people who owned the land phoned National Clamps. I was fairly clamped. I was parked directly under a sign and i was charged £80 release fee. I know it's not a lot to complain about but i figured i'd give it a go.

 

Wrote to National Clamps Complaints Department. Admitted to being wrongfully parked but questioned the fee of £80.00. Said that "the money in question would be classed as liquidated damages. A liquidated damage clause will not be enforced if its purpose it to punish the wrongdoer in breach rather than to compensate the injured party. In order for a liquidated damages clause to be upheld there are conditions which must be met. The amount of damages identified must roughly approximate the damages likely to fall upon the party seeking benfit of the terms. I fail to see how it would realistically cost £80.00 for one of your representatives to attend my vehicle and apply a clamp which takes a matter of minutes. When i telephoned your offices to request release of the vehicle this was done a fter the £80 was paid and it took approximately one minte for the clamp to be removed. I fail to see how this can have incurred costs of £80.00.

 

I believe that your charges are disproportionately high and therefore they are contrary to the Unfair Terms in Consumer Regulations 1999. In addition i believe that your charges are a Penalty. Penalty charges are irrecoverable under common law. The precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss of liquidated losses. It is clair that your charges do not reflect any actual and/or real loss."

 

Then i requested my refund.

 

Sent 2 further chaser letters, the latter threatening court action. Finally got a response enclosing a wonderful photograph of my car parked under their sign with a wheel clamp on. I'm thinking of getting it framed.

 

In this letter they advised that they had written to me directly and also sent a letter back to the firm in which i work (the letter i previously did was on the solicitor's letterhead). They said the following

 

"We place our signs on each car park 'where bound to be seen' and clearly state the consequences of parking without authority. By voluntarily accepting the risk that her car might be clamped your client accepted the risk that the car would remain clamped until she paid the reasonable cost of the clamping and declamping. She consented to not only the otherwise tortious act of clamping but also to the other tortious act of detaining the car until payment (see Arthur v Anker)" - straight out of the book!

 

"Since your client voluntarily accepted the wording on the signage (see attached photograph" (and a lovely photograph it is too) "stating the relase fee of £80, she voluntarily prevented herself from carrying out her rightful business (volenti non fit injuria). Thus the Human Rights Act would not be applicable" - Note to self. Give up trying to claim under Human Rights Act.

 

"We work within the British Parking Association guidelines which state that a release fee of £120 would not be unreasaonble. We choose to stay well under that figure at £80.00. I ask that you advise your client accordingly."

 

I then responded...........

 

"It is with interest that we note your reference to Arthur v Anker. This ruling held that vehicles left without authority would be clamped and a release fee of £40 would be charged. It was also held that the Arthurs had seen the notices and that the release fee was reasonable. We reiterate: “the release fee was reasonable”. The ruling in Arthur v Anker was made in 1995. This was some years before the Unfair Terms in Consumer Regulations 1999 came into force.

We would refer you to Black v Carmichael. We are aware that this decision was made in Scotland but nevertheless we shall draw this to the attention of the court should the need arise. The practice of wheel clamping on private land was banned as constituting extortion and theft.

We note that you work within the British Parking Association Guidelines. However that is all they are – merely guidelines. The Unfair Terms in Consumer Regulations 1999 is an Act.

We would advise that our client is more than keen to take this matter to court simply in curiosity of the outcome. We would however remind you that should she do so, if she is successful and ruling is made in her favour then this would open the floodgates for many other vehicle drivers in her position to re-claim their penalty charges."

I am still waiting for their response. It has now been 14 days since i sent that letter so i am going to draft a claim form today to send to them to hope that will provoke some sort of response.

Fingers crossed ................

[Andy9012]

Wow! I'll have my fingers crossed for you too!! Please let us know the outcome.

 

With regards to my case - I'm going to go back and take photo's but like I said in my 1st post I feel all is in order. Its the size of the fine in relation to the crime that I'm thinking may be the key!

[carolyn4863]

Possibly. What i'm thinking is that it was obviously a penalty charge since i was parked on private property and penalty charges are irrecoverable under common law. I'm trying that angle but will wait to see what happens.

 

With the size of the fine in relation to the crime it seems that there are British Parking Association Guidelines but no actual laws to state the maximum that these companies can charge.

[nemogbr]

Vehicle immobilisation is run by private companies and supervised by the sia (Security Industry Authority).

 

One thing I was not aware of, is that they legally cannot put a limit to the amount that wheel clampers can charge.

 

One driver I know got charged:

Fixed penalty - £150.00

Release fee - £150.00

 

Surcharge for paying by credit/debit card 2.8%

 

VAT 17.5%

 

Total £362.37

 

Calling the council does not help and I have to go through the SIA.

 

I have now advised him to call his bank and dispute the transaction.

 

We shall have to contact the company.

 

thank you for the posts. I shall include them in the letter I am writing.

[carolyn4863]

i dont think that the bank can dispute the transaction. It was made at the time and it was a lawful transaction. The dispute is in relation to the fee and that should be taken up with the company directly.

 

I'm sure they can put a limit on the amount that clampers charge but it just hasn't been done yet. This is why one should go through court. Once a precedent is set then they will all have to abide by it.

 

I sent National Clamps my draft claim form today and particulars of claim. About 3 hours later i received a faxed reply saying that they have "done a little research on your company and see you are no stranger to the court, so i would put it to you that if you do not feel you are wasting your client's money, please let us have the details of the court date pending". They also say that they attach the BPA's guidelines on release fees. This was not attached but is of no relevance anyway.

 

I wrote the following reply

 

"Thank you for your recent fax which is petty and of absolutely no relevance whatsoever.

The case in hand is set out in the Claimant’s Particulars of Claim. We would put it to you that perhaps your failure to comment on the same is an admission of liability. We shall of course draw this to the attention of the court together with your conduct in this matter when the question of costs arises. Unless you are prepared to reply substantively the claim will be issued on the date previously advised. We are giving you the opportunity to settle this matter out of court in order to save costs. We are not prepared to enter into further protracted correspondence. If you fail to provide a relevant response to our client’s claim we shall simply issue.

With regard to the court date, it would appear that you do not have much knowledge of the court system. The Claim Form and Particulars of Claim will be issued and you will then have to file a Defence. Both parties will then have to complete an Allocation Questionnaire before a court date is set. We trust this clarifies the position.

We re-iterate that in relation to the BPA’s guidelines – that is all they are – merely guidelines. We once again refer you to the Unfair Terms in Consumer Regulations 1999 (an Act)."

Eagerly waiting for the response...................

[nemogbr]

WOW.

 

Should have stayed in school...8-)

[Sidewinder]

Excellent! A girl after my own heart.....how I love a snotty letter

[Andy9012]

Excellent work!

[tomtubby]

You should contact SIA to ensure that the vehicle clampers are in receipt of an SIA licence.

 

They must have this by law is they charge a fee to release the car.

[carolyn4863]

Company definately are SIA registered. I've already checked that. No response yet :-|

 

I know it's a bit petty and it's only £80 and that's nothing compared to what some other people have been charged but the point is that it's MY £80 and i'm going to take this one all the way just to find out the outcome.

[carolyn4863]

Thanks for the link but unfortunately it tells me what i already know. I'm sure the clampers were perfectly right to clamp me. They have complied with all the regulations. The issue i have is in relation to the fee. I am willing to take this to court and take it all the way. If it goes against me then fair enough - at least i gave it a go. If it goes in my favour then all the better but i'm hoping at least to get some sort of judgment on how much these people can charge.

[nemogbr]

This is now an update.

 

The bank gave the money to the Wheel clampers PARK DIRECT.

 

The signs about "No Ball Playing" was twice as big as the "PRIVATE PROPERTY" signs and notes about wheel clamping.

 

They have stated.

 

Park Direct signs are double the legal requirement and all attendants have a SIA licence.

 

I am now writing a second letter stating the Unfair Terms in Consumer Regulations 1999 and will have to threaten legal action.

I guess it will be the county court for us.

[sniglet]

Would love to know update on this one.

 

Also please see 'Wheelclamping on Private Property'