Private Clampers: The answer does not lie in the Criminal Law.
Arthur and Another v Anker
(1995) The Times, December 1
The Arthurs' car had been wheelclamped by Anker after it had been parked without authority on private land in the centre of Truro It was accepted that the Arthurs' in parking the car had seen the notice erected by Armtrac to the effect that vehicles left without authority would be clamped and a release fee of £40 would be charged.
It was also accepted that the Arthurs had seen the notices and that the release fee was reasonable.
Armtrac did not charge the leaseholders for their services, but looked for their remuneration solely to fees paid by trespassing drivers for their vehicles' release.
THE MASTER OF THE ROLLS said that the first ground of defence relied; on was the medieval self-help remedy, adapted to modern conditions, of distress damage feasant whereby if a landowner found property of another causing damage on his land he could seize the offending property and withhold it from its owner until adequate compensation had been tendered for the damage done.
The second: ground of defence was consent, or volenti fit injuria, which as Lord Herschell had said, in Smith v Baker and Sons [1891] AC 325, 360), was a maxim founded on good sense and justice that "One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."
Taking that second ground first his Lordship referred to Cummings v Granger [1977] QB 397, Ashdown v Samuel Williams B Sons Ltd [1957] 1 QB 409 and Lloyd v DPP [1992] RTR 215.
By voluntarily accepting the risk that his car might be clamped Mr Arthur also accepted the risk that the car would remain clamped until he paid the reasonable cost of the clamping and declamping. He consented not only to the otherwise tortious act of clamping but also to the otherwise tortious act of detaining the car until payment.
His Lordship would not accept that the clamping would exact any unreasonable or exorbitant charge for releasing the car and the court would be slow to find an implied acceptance of such a charge. The same would he true if the warning were not of clamping or towing away but of conduct by or on behalf of the landowner which would cause damage to the car.
Nor might the clamper justify detention of the car after the owner had indicated willingness to comply with the condition for release: the clamper could not justify any delay in releasing the car after the owner offered to pay, and there had to be means for the owner to communicate his offer
But those situations did not arise in the present case. The judge had found that the declamping fee was reasonable. The contrary was not argued. The judge was right to hold that Mr Arthur impliedly consented to what had occurred, and he could not now complain it
His Lordship would dismiss the appeal in so far as it rested on consent. Turning to the defence of distress damage feasant, it was common ground that the remedy had survived and was in principle capable of applying to inanimate objects. It was however plain that application of the remedy to facts such as the present was remote from anything which could ever have been contemplated by those who had developed the remedy; that if the remedy were in principle applicable it would apply to a party who genuinely did not know that he was trespassing and had received a notice that his car might be clamped: and that that application of the remedy would be unlikely to promote social harmony between the clamper and the clamped.
His Lordship did not feel constrained to undertake heroic surgery to seek to apply that medieval remedy to twentieth century facts such as the present.
He set out the following reasons for doubting whether the remedy could apply:
1 The object of the remedy was to enable a party entitled to possession of land to take prompt action to stop or prevent damage to it or anything on it by seizing and impounding any trespassing chattel until the owner claimed it and tendered appropriate compensation.
The most obvious self-help remedy and that most commonly resorted to in the case of trespassing livestock was to elect or remove the trespassing thing, but that deprived the landowner of any security for damage actually done to him by the trespassing thing and ejectment or removal of a trespassing car from a city centre private car park posed special problems.
The result of clamping the Arthurs' car was not to stop or prevent the car from causing whatever damage it was causing but to ensure that it would continue to cause the very damage of which the leaseholders complained.
On any showing it was anomalous that a self-help remedy should amount in effect to a self-inflicted wound. The truth; was that the clamping of trespassing cars was effected as a deterrent not to stop an existing trespass or prevent future damage by the trespassing chattel on the occasion when it was clamped; it did not, however, appear that deterrence had much, if anything, to do with that remedy as originally developed.
2 A mere technical trespass, mere unlawful presence on the land without more, was not enough. Actual damage would be shown if the party entitled to use the land were denied or obstructed in its use.
Thus if any of the leaseholders or their licensees were unable to use the car park by the trespassing car that would amount to actual damage. But there was no such evidence here.
3 The distrainor could retain the trespassing chattel as security for his claim to be compensated for the actual damage he had suffered as a result of the trespass.
But it was plain that in a case such as the present a flat charge for release imposed irrespective of the period of the trespass, and the time of day or night when it occurred, and paid not to the leaseholders. who suffered the damage, but to augment the profit of an agent who suffered no damage, had no compensatory element at all.
Since Armtrac rendered their services to the leaseholders without charge and looked for their remuneration solely to release fees paid by trespassing drivers, the payments could not be treated as discharging any liability of the principal to an agent.
Even if it were accepted that a landowner might in some circumstances distraint damage feasant a car parked without permission on his Land, he could only do so to recover compensation for actual damage he had suffered.
The leaseholders were not found to have suffered any actual damage, they had no claim to be compensated, and what Anker claimed as their agent was not compensation.
On the question of crime his Lordship referred to Stear v Scott [1992] RTR 226 and Lloyd v DPP from which it would appear to be clear that the Arthurs' were not on any showing entitled to convert the clamps and padlocks belonging to Mr Anker.
His Lordship distinguished Black v Carmichael (The Times June 25, 1992: 1992 SCCR 709) where wheel clampers, although held not to be guilty of extortion, were held to have been guilty of theft, since an intention to deprive the owner permanently of the goods was not a necessary ingredient of the offence of theft in Scots law.
That was not the law in England: see sections 1(1) and 6 of the Theft Act 1968.
Nor was Anker even arguably guilty of blackmail under section 21 of the 1968 Act. If his Lordship's conclusion on consent was correct, Anker had reasonable grounds for demanding payment and was entitled to reinforce his demand by his threat to keep the car clamped until he was paid.
Even if the conclusion on consent was wrong; Anker believed that he had reasonable grounds to demand payment and to keep the car clamped until he was paid.
The answer to the present case was not to be found in the criminal law.
The Decision
A motorist who trespassed by parking his car on private property having seen a warning notice there that a vehicle parked without proper authority would be wheel clamped and released on payment of a fee, was to be taken to have consented to the effect of the notice, provided that the release fee was reasonable, the vehicle was released without delay when the motorist tendered the fee and there were means by which the motorist might communicate his offer of payment.
Where, therefore, those conditions were fulfilled the wheel clamper's activity was neither tortious nor criminal.
The Court of Appeal held, dismissing an appeal by the plaintiffs, Mr David Arthur and Mrs Annette Arthur.
COMMENT
In Scotland Lord Hope said in Black v Carmichael, "But the means which have been selected to deter the activity fell plainly within the proper limits of the crime of extortion, since the whole purpose of the wheel clamping was to obtain money as a condition of the release of the vehicle."
Ministers, we were told, The Times, July 17 1992 were urgently looking into ways of ending the "piracy". Now the matter has been tested before a criminal court can we ask for a clarification of this difficult issue? It has to be admitted there are two sides to every story, some land owners are suffering inconvenience. Many solicitors have notices in their car parks stating that vehicles will be clamped and a fee charged for their release - who will guard the guards? Parliament please.