Clamping cars on private land-the law

The law relating to parking enforcement on private land, clamping, charges and so on-is complex and confusing. In the recent case of Michael & Linda Stiles -v- Welcome Financial Services Limited & Collins [2009], Cleggs represented Welcome; the Circuit Judge in the Ipswich County Court examined the current law and his judgment is a very useful overview of the present position. You can read the judgment here.

Mr and Mrs Stiles ran a parking control firm called Secure-a-Space. Welcome, a finance company, entered a HP agreement with Mr. John Collins, the second Defendant, to buy a car. Pursuant to the agreement, Mr Collins continued to make his payments in accordance with despite the fact that his car was impounded by Mr and Mrs Stiles on 27th June 2007 from outside his flat at Ramshaw Drive Chelmsford.

Mr Collins rented his flat at from a Mr and Mrs Dunn. Mr and Mrs Dunn, in turn, held a long lease of 64 Ramshaw Drive from The Chelmsford Housing Trust (“the Trust”) who had acquired the whole development. Mr and Mrs Dunn permitted Mr Collins to park his car in a numbered parking bay outside his flat, away from the public highway. The lease of the flat identified that parking bay as being part of the title to 64 Ramshaw Drive; there was no restriction on its use and the only covenant in the Lease relevant to it obliged the lessee (ie Mr and Mrs Dunn) not to cause a nuisance. There were no notices posted warning that illegally parked vehicles might be removed.

Mr and mrs Stiles were instructed by the managing agent of the Trust, and they had noticed Mr Collins’ car parked in his parking bay. However, they believed that it was illegally parked, on property owned by the Trust. Acting on the instructions of the managing agent, Mr and Mrs Stiles put a notice on the car warning that the vehicle would be removed in seven days.  A week or so afterwards, as the vehicle was still not removed, Mr and Mrs Stiles had it towed away and placed in storage.  In fact, Mr Collins never saw the notice as he was working away from home. After taking the vehicle away, Mr and Mrs Stiles undertook a HPI check and discovered that the owner of the vehicle was Welcome, under the hire purchase agreement. 

The first time that Welcome became aware of any of this was in or around July 2007, when Mr and Mrs Stiles wrote to it, requesting that it pay Mr and Mrs Stiles the costs of removing and storing the vehicle.  As Mr Collins maintained his payments Welcome was not entitled to terminate the agreement, and was not entitled to possession of the vehicle.  In those circumstances, any action taken by Welcome in relation to the vehicle (for instance, payment to Mr and Mrs Stiles to have the vehicle released) could even be said to be an interference with Mr Collins' rights to possess the vehicle pursuant to the hire purchase agreement. Eventually, Mr and Mrs Stiles issued proceedings against Welcome claiming damages. Mr Collins was also brought into the proceedings.

Prior to trial, Welcome asked Mr and Mrs Stiles to explain why they believed that it was liable to them for storage charges, bearing in mind that Welcome had no control over what Mr Collins did with his car. Mr and Mrs Stiles said that they intended to rely upon the well-known Court of Appeal case of Vine v Waltham Forest LBC. In that case, Lord Roch held at that:

‘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 persons 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’.

So much is little more than trite law-if sufficient notices are placed warning that he might be clamped if he parks without permission, a trespasser cannot complain if he is then clamped.

But in addition Mr and Mrs Stiles also said that they were entitled to argue that they were involuntary bailees. The remedy open to an involuntary bailee is usefully illustrated by the case of R. v. Howson. in which the Court considered whether the owner of a piece of land upon which the plaintiff had wrongfully parked his car was entitled to remove it to the roadside. Here the Judge said:

“I shall not here attempt to speculate on what would be the situation if the operator of the lot moved the car to a position of danger from traffic or placed it where it would obstruct traffic or exposed it to injury by letting it roll down the street…I do not think that the operator of the lot was under any duty to search out the owner of the illegally parked car. If he is not content to let the car remain where it is until the owner appears or…to remove it to the nearest street curb but decides to remove it to an accessible place of safe keeping, I would hold that he should be entitled to recover the reasonable expenses incurred in doing so.”

Chitty on Contracts states:

 “the judicial analysis of bailment seems...to have reached the stage at which any person who voluntarily assumes possession of goods belonging to another will be held to owe at least the principal duties of the bailee at common law.”

Hence, Mr and Mrs Stiles argued, bailment can exist even when the bailor (ie Welcome) is unaware of the fact that they as bailees had possession of the car, and as they were involuntary bailees of the car and as such they were entitled to bring a claim against both Welcome and Mr Collins or even sell the car.

In China Pacific SA -v- Food Corp of India a salvor was attempting to recover expenses from a shipowner for the costs of storing wheat. Lord Simon said:

“I agree that there is no general right of a bailee to be reimbursed expenses incurred in fulfilling his duty to safeguard bailed goods; and I agree that there was an element of necessity I the cases relied on by the salvor under this head. But I think that it puts it too narrowly to say that such are the only circumstances in which the law will impart an obligation to reimburse-unless, indeed, one is prepared to go further and argue that only a bailee who is an agent of necessity is entitled to reimbursement. No authority so stipulates. The relevance of necessity in the cases relied upon by the salvor is, in my view, that justice calls for reimbursement in such circumstances: the emergency imposes obligations on the bailee beyond what will generally be contemplated on a bailment.

But such are not the only circumstances in which justice demands indemnity. In my view the following circumstances in the instant appeal import a correlative obligation to reimburse expenses; (1) the contract of bailment was a commercial one; (2) it came to an end when the salved goods were brought to a place of safety, which, it has been the common assumption, was the entry into the port of Manila (though I must not be taken as necessarily endorsing that view); (3) the bailee then continued in possession as a gratuitous bailee; (4) he incurred reasonable expenses in safeguarding and preserving the goods, to the benefit of the bailor; (5) the bailor stood by, knowing that the bailee was so acting to his (the bailor’s) benefit”.

Mr and Mrs Stiles argued that there was a bailment here "in circumstances which demanded indemnity" for these reasons;

• the vehicle was abandoned;
• Mr and Mrs Stiles were contractually obliged to take possession as a consequence;
• Mr and Mrs Stiles notified Welcome that they had the vehicle and incurred expense but Welcome took no action;
• Mr and Mrs Stiles sought the details of the true owner of the car but Welcome refused to release them;
• the vehicle could have been collected by Welcome or Mr Collins (on payment of the claim) but they chose not to;
• Welcome continued to be paid by Mr Collins, so it enjoyed the benefits of the vehicle;
• the condition of the vehicle was preserved as opposed to it being abandoned, and as result Welcome and Mr Collins would benefit;
• Mr and Mrs Stiles incurred expenses in circumstances where, if they had allowed damage to occur to the car, they would be liable to Welcome Financial Services Limited or Mr Collins in tort.

In this case of course, Mr and Mrs Stiles made a conscious decision to tow away the vehicle -which does not sit in well with the notion of it being “involuntary”. Further, Mr and Mrs Stiles did have proper control as they chose to remove the vehicle from the land of a third party. They could have chosen not to.

At trial, His Honour Judge Holt said:

“There is a preliminary issue as to what is the cause of action.  There are three possibly to consider. The first is whether there is any contractual relationship between Mr and Mrs Stiles and either the first or second defendant.  This was not parking on land owned by Mr and Mrs Stiles or by someone for whom Mr and Mrs Stiles acted, so that, if somebody parked on that land and a notice were put up, such as at a supermarket, then, if the conditions of the notice were not complied with, Mr and Mrs Stiles could take possession of the car and claim storage.

There is no such contract, and nor could there be, because the second defendant had a right under the lease to park his car.  The nearest one gets to consideration of a contract is the covenant in the lease, which I have already referred to...There seems to have been some attempt by [the managing agent], before she backtracked further, to argue that a car, because it is not taxed, either is or may become a nuisance because it may be targeted by vandals.  That is a hopeless argument and, in any event, there has been no attempt to found this claim in accordance with such a breach of covenant.  For the avoidance of doubt, if there were any attempt to amend and any success in assigning the rights from the Trust as head lessor down to the Claimants, I would say that such an argument would have no prospect of success whatsoever.

The next matter to consider is the one which is added by amendment to the claim to say that Mr and Mrs Stiles are entitled to make their claim because they are involuntary bailees.  The problem with this is that the car must be parked unlawfully in the first place, and clearly, it was not.  Therefore, ingenious as that argument may appear to be, it is a non-starter. 

The finance company would also say that, in any event, it was misconceived to sue them.  They were not the bailor at the time.  It was the registered keeper, and indeed, they point to the notice which was put on the car, which clearly targets the registered keeper of the vehicle and not the finance company, if the car is not removed in accordance with the notice.

It seems to me that the finance company could never have been in the frame here and, as far as Mr. Collins is concerned, nor could he, because he was parking his [car] in his parking space, which he was fully entitled to do and which [the managing agent], somewhat belatedly, seems to be accepting to be the case. 

It may be that Mr. and Mrs. Stiles, as the Claimants, are pig in the middle.  I know not.  They accepted instructions from [the managing agent].  Those instructions were bad in law.  Then their remedy, if they have one - and I am not deciding any such issue, and I emphasise that - is against [the managing agent] or others.  It is not against Welcome or Mr. Collins.”

If this claim had being brought by the Trust, which owns the land on where the car was parked, then the matter may have been altogether different. As His Honour Judge Holt observed, If the car had been illegally parked, then it is conceivable that the Trust would be an involuntary bailee, as the Trust would have found itself in a position where the car had been deposited on its land, and this would constitute a trespass and/or nuisance.

In those circumstances, subject to arguments about what is reasonable, the Trust would have a good cause of action if it had incurred costs in storing the vehicle away. Here of course Mr and Mrs Stiles had no interest in the land, nor were they agents to the owners of the land, nor were the rights of the owner assigned to them. Instead Mr and Mrs Stiles were merely instructed by the managing agents of the owner. Accordingly the Court ordered Mr and Mrs Stiles to pay the costs of both Welcome and Mr Collins, as well as ordering the return of the car to Mr Collins and £7,400 compensation for loss of use.

If you would like to discuss any issues relating to this article, please contact the writer David Vaughan-Birch. This publication is provided for general information purposes only and does not constitute legal or other professional advice. If you require specific advice on a legal problem then please contact us.