Private Parking: Clamping Guide
CLAMPING ON PRIVATE LAND
With thanks to Pin1onu
This document started after a few colleagues of mine were clamped at work. I wanted to check out the legality of clamping and find out what, if any, remedies there were. As I started trawling various forums and looking at the issues there was a distinct difficulty in trying to find answers. The information was there but not in anyone place.
This guide covers clamping on private land only and not on the public highway.
A good starting point in understanding your rights and the obligations of the clampers is contained in the Citizens Advice Bureau’s excellent advice guide.
You can find it at Clamping on Private Land
However the guide has very little background and is necessarily brief. This document seeks to fill in the blanks and provide further information.
The Security Industry Authority refers to clamping as vehicle immobilisation. This can also mean towing away or blocking in. As these are all related remedies for trespass I will use the term interchangeably in this document.
The document includes my recommendations on what to do if you are clamped and what remedies you can seek. The list of remedies is not exhaustive and should not be treated as such.
Please note that I am not a lawyer and the following should not be construed as legal advice. While I have set out to be accurate the information could contain errors or omissions.
Any advice given is of a general nature and I will not accept liability for costs incurred for using any part of this guide. You should seek legal advice before embarking on any course of action recommended. _________________________ _________________________ _________________________ _____________________
Background and Legal Basis for Clamping
Clamping began in the 1980s as a controversial statutory measure to deter illegal on-street parking in Central London. It was the success of that measure and its extension to other congested city centres which encouraged its use by private landlords and the proliferation of clamping companies willing to carry out that work on their behalf. But whereas on-street clamping was tightly regulated with specific procedures, rights of appeal and controls over the amount of release fees, the opposite was true of private clamping, which was completely unregulated and a product of the common law.
The common law principle that clamping uses is a medieval remedy called damage distress feasant. This principle basically put is that something may be detained until damages have been recovered or satisfaction be rendered for injury they have done. In the past this principle was applied amongst other things for trespass of livestock. If someone’s livestock strayed onto someone else’s land and caused damage, the landowner was entitled to keep hold of (distress) the livestock until damages were paid. In the same way clamping involves keeping hold of (distressing) your car until you pay for the damages you have caused in parking where you have. This remedy also applies to towing a vehicle away.
Clamping is illegal in Scotland thanks to a 1992 court ruling. In BLACK v CARMICHAEL (1992- S.C.R 709) it was decided that the clamping of a vehicle and the demanding of a release fee amounted to extortion and theft.
In England and Wales a different approach was taken. A Court of Appeal decision in 1995 gave clear guidance. The Case of ARTHUR v ANKER (Times Law Reports 1st December 1995) produced a landmark decision
- Where warning notices are prominently displayed, any motorist who parks a vehicle in defiance of that notice will be deemed to have consented to the clamping of his/ her vehicle and its subsequent detention until a release fee is paid.
- The amount of the de-clamping fee must be reasonable.
- Arrangements must be in place to enable the prompt release of a vehicle once the vehicle owner has indicated that s/he is willing to pay the release fee.
There remains uncertainty as to what constitutes a "reasonable release fee". In VINE v LONDON BOROUGH OF WALTHAM FOREST (Times Law Reports 12th April 2000), the original trial judge had regarded a release fee of £105 as reasonable- although the Court of Appeal later ruled the clamping illegal on other grounds.
The lesson from Vine is that even when signs are prominently displayed, a motorist who has not seen them cannot have consent to a vehicle being clamped. An underlying principle is that it is not only objective judgement must be exercised but also subjective judgement as well. Even if the signs are seen they have to be read and understood.
Also in amongst the judgement from Vine was a ruling on a reasonable release fee. In the original case a release fee of £105 was deemed reasonable. That amount today, taking into account inflation using the retail price index as a guide, would now equate to roughly £138.
These two cases decided that clamping in England and Wales by private companies was legal and provided a certain framework to govern the activities of the clampers. However with numerous cases of clamps being applied illegally when cars were legitimately parked, cases of intimidation, assault, threatening behaviour on or by the clampers it soon became clear that there was something wrong. Rightly or wrongly an act of parliament sought to correct the imbalance but instead of outlawing clamping as a remedy to unauthorised parking on private land it instead gave it cloak of legitimacy. It was lumped in with the Security Industry Act.
The Private Security Industry Act and The Security Industry Authority
In 2001 the Private Security Industry Act was passed. This has been amended and was finally enacted around 2004. The Act sets out some very strict rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and list some pretty stiff penalties for breaches including fines up to £5000 and 5 years in jail.
Part of the act authorised the setting up of an administrative body to oversee the licensing of Security Industry Operators and staff. This body is the Security Industry Authority. The Security Industry Authority (SIA) has a website (https://www.the-sia.org.uk/). You can obtain links to all the relevant legislation relating to the SIA. More importantly you can perform an online check to verify the license of any SIA licensed individual.
Licenses fall into two categories – frontline and non-frontline. Frontline licenses are required by all staff who will be undertaking day to day security duties including vehicle immobilisation.
Non-frontline licenses are required by the principals of firms whose employees undertake duties licensable under the PSI act.
Landowners have a responsibility to ensure that anyone performing vehicle immobilisation for a fee on their land is licensed by the SIA. There are pretty stiff penalties for landlords (and I guess this would mean CEO or directors if it’s a registered company) if they allow unlicensed operators to immobilise vehicles on their land on their behalf (i.e. acting as their agent).
The SIA do not regulate
- the amount of the release fee
- the time taken to release a vehicle
- the adequacy of signage around the site warning that vehicles may be immobilised
- the complaints procedure of the company employing the vehicle immobiliser
They SIA advise that
If a vehicle immobiliser uses threatening behaviour or intimidation they may be committing a criminal offence and we would recommend that you report such instances to the police.
The SIA's remit covers the individual undertaking the licensable activity.
The PSI Act sets out that:
- The person immobilising the vehicle must be licensed by the Security Industry Authority.
- The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
- Upon payment a receipt must be issued. The receipt should contain the:
- the name of the license holder
- the signature of the license holder
- the license holders SIA License number
- the location where the vehicle was clamped or towed
- the date when the vehicle was clamped or towed
Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.
1) A vehicle must not be clamped / blocked / towed if:
a) A valid disabled badge is displayed on the vehicle.
b) It is an invalid carriage
c) It is a marked emergency service vehicle which is in use as such.
In The Private Security Industry Act 2001 (Licences) Regulations 2007
- “invalid carriage” has the same meaning as in section 253(5) of the Road Traffic Act 1960;
- “disability badge” means a badge issued under section 21 of the Chronically Sick and Disabled Persons Act 1970; and
- “Emergency vehicle” has the same meaning as in regulation 3(2) of the Road Vehicles Lighting Regulations 1989.
Any firm who does not comply with the above is in breach of the Security Industry Act and can be prosecuted.
It is also an offence to knowingly employ unlicensed clampers. Landlords can be fined up to £5000 and/or be jailed for up to 6 months per offence.
Under the PSI Act and existing case law for clamping to be valid the following must be present or take place
1) There must be clear and prominent signs indicating a vehicle may be immobilised.
2) The signs should contain
a) A number at which an offer to pay the release fee can be made
b) The amount of the release fee (which should be reasonable)
3) Upon an offer to pay or payment being made the vehicle must be released in a reasonable amount of time
4) The person immobilising the vehicle must be licensed by the Security Industry Authority.
5) The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
6) Upon payment a receipt must be issued. The receipt should contain the:
a) the name of the license holder
b) the signature of the license holder
c) the license holders SIA License number
d) the location where the vehicle was clamped or towed
e)the date when the vehicle was clamped or towed
What to Do If You are Clamped
1) Keep calm, however distressing it may be, getting angry or upset will do you no good and it may get you arrested.
2) Take a note of any signage. It should be clear and visible. Look particularly at entrances/exits.
3) If you have a digital camera take pictures of any signage. Is it readable from where you stand? Was it prominently displayed where you came in?
4) If you have the ability record/make notes of anything said or done by the clampers. Particularly record or note any threatening or intimidating comments or behaviour.
If they demand extra because a tow truck has been called out refuse to pay and call the police.
5) Ask to see the clampers SIA i.d. If they cannot produce it call the police. They are possibly unlicensed and thus committing an offence under the PSI act.
6) Pay on a credit card if you can or by cheque.
7) Do not offer any physical violence to the immobilisers you are liable to be arrested.
Do not damage a clamp (i.e. cut it off). You will probably be arrested for “criminal damage”. However if can remove it without damaging it then you can do so.
9) Make sure you get a full receipt with all the required details
10) Check that the clamper is licensed on the SIA website.
11) If they are demanding a towing fee for a tow truck turning up or being called but not actually towing refuse to pay anything other than the release fee.
Can I Recover My Money?
Unfortunately there is no one clear path to go down to seek redress if you are clamped. More often than not you will have been forced to pay to have your car returned – regardless of whether the immobilisation is legal or not. Unless the firm in question is grossly in breach of the PSI Act then the only path left open to you is to attempt a civil recovery. This will need to be done via letter at first and if that fails then through the county court on the small claims track.
One final point is that these firms are often fly-by-night outfits. If you are seeking redress through the court it is probably best to name the clamping firm and their employing agent as co-defendants.
Stopping or Reversing Payment
If you have paid by cheque or credit/debit card there may be avenues open for to try and get the payment stopped or reversed.
If you can pay by cheque then do not put any guarantee information on the back. The simple thing to do is ring your bank and have a stop put on the cheque. It may cost you a small fee to do so but its better than a large amount. I suspect that most clamping companies will be unwilling to accept payment by cheque for this very reason.
If you paid by credit card or debit card then you could, reasonably in my opinion, claim that you were forced to pay under duress and that the transaction is invalid.
It may be that your bank or credit card company will be unwilling to do anything to help you. If that is the case then the your only remedy is recovery through the civil courts
Before attempting any recovery you need to gather evidence of any failures to comply with either the SIA legislation or the case law given under Vine or Anker.
One of the most common causes of complaint is the lack of adequate signage. Arthur Vs Anker clearly states that a sign must be present. Vine further enhances that by saying it must be seen and understood. If the signage is clearly posted and you’ve parked in clear violation then you’d better have a pretty good reason, such as in the Vine case, to bring a claim against the firm that clamped you.
However that said signage is often missing, inconspicuous or unreadable. Many posters on the consumer action group forums have mentioned that poor lighting as a reason for the signs being missed.
One “pay for a solution” website I have seen suggests that a guidance point for the visibility of signs is the Road Traffic Act 1991. As there is no guidance for size of no parking signs or their placement on private land other than the case law that they should be clear, visible and understood you could use the guidance on public land as a reference.
Whether a court would accept this is debatable.
There is no legal limit to the amount that can be charged for a release fee. However the Vine case said that a reasonable amount in 1997 was £105. As stated previously that roughly translates to £138 in today’s terms. It would be worth consulting a lawyer with a view to court action if you’ve paid significantly more than this.
Not Licensed By The SIA
If the immobilisers are not registered it may render the clamping invalid and therefore you should be able to seek a refund. It may be that attempting a bargain along the lines of refund my money and I won’t report this breach will be effective. Bringing pressure to bear on the landlord may also bring results. In my view you would do better to report the matter to the SIA and seek redress via the courts as the clamping should not legally have taken place and by that reasoning no release fee should have been due.
It would seem the clampers have it going for them – at least initially. They get your money and backing in most cases from the Police.
Your only real redress is through the courts and knowing your rights.
I hope this guide will help.