BIKEWORLDTRAVEL / SHUTTERSTOCK
FEATURE WHEEL CLAMPING
its use in a narrow category of situations related to the non-payment of court fines) on the ground that it was a kind of extortion. Common law (judge-made law dating all the way back to the deep legal reforms consequent to the Norman Conquest that unified Danelaw, Mercian law and Wessex law) provides the legal basis for wheel clamping. Essentially, the presence of a warning notice advising the motorist of one or more parking spaces being forbidden on pain of paying a charge constitutes an ‘offer to treat’.
Some readers will be intrigued to know, if they do not already know, that exactly the same legal principle applies to an item on sale in a self-service store. If the driver goes ahead and parks nevertheless, he/she is deemed to have ‘accepted’ the offer with full knowledge of the ‘valuable consideration’ that is a term of the contract, in other words, the penalty charge. The law of contract, which is highly developed in this country, is explicit on this important point. The driver has, in law, agreed to accept a
The private contractor operatives
were, according to the reports, all sorts, and included various kinds of fast and loose persons who sailed close to the wind in terms of legality
‘service’ from the proprietor of the parking space (the use of the parking facility) and, having availed himself of the service, must now fulfil his part of the bargain by paying the ‘valuable consideration’, which is the parking charge.
The legal basis of vehicle immobilisation goes back into the mists of English and Welsh legal history. Essentially, a landowner was entitled to hold onto animals that had strayed onto his property until any damage and/or loss had been paid. The legal textbooks call this ‘distress damage feasant’. In this context, the holding onto of the vehicle made it a species of security for the payment of the charge. As a result, parking enforcement became hugely unpopular with many people.
Legal considerations
This is the time to bring into view the groundbreaking appeal court case Arthur and another v Anker (1995), The Times, 1 December. It was an Appeal Court case that decided in favour of the clamper, Anker. As is to be expected from the exceptionally high standards of legal professionalism that always characterises House of Lords Appeal Court cases (a read through the Appeal Court write-ups in The Times and The Daily Telegraph illustrates this vividly), the whole subject of alleged consent and
36 NOVEMBER 2012
compensation for damage was looked into and argued with impressive thoroughness by the then Master of the Rolls. The decision, according to the official
report, runs: ‘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 tortuous nor criminal. The Court of Appeal held, dismissing an appeal by the plaintiffs, Mr and Mrs Arthur.’
www.britishparking.co.uk
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