John Hall, head of education law at Eversheds, looks at how colleges can protect themselves if they introduce wheelclamping into car parks.
IS wheelclamping the answer to illegal parking in congested college car parks? In a recent case the Court of Appeal considered the legality of the practice.
Mrs Vine parked her car temporarily in a college car park controlled by Waltham Borough Council because she felt ill. She returned to the car a few minutes later to find that it had been clamped by the council's contractors. There was a notice on the wall warning that any unattended car was liable to be clamped or towed away, but from the driver's seat of Mrs Vine's car the notice was obscured by a Range Rover parked in the adjoining space.
Mrs Vine paid pound;105 to have her car unclamped, which took between 15 and 20 minutes, and then she tried to recover the money from the council for wrongly immobilising her car. In Vine v Waltham Forest LBC the Court of Appeal, on these facts, held that Mrs Vine was entitled to the return of the unclamping fee.
As lawyers Roch LJ explained: "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 person's 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."
In this case, the court at first had held, after hearing Mrs Vine's evidence, that she had not seen the warning notice on the wall. It was hidden from her view by the Range Rover that was parked in the adjoining space. On that basis, Mrs Vine had not assumed the risk of her car being clamped, and the council's action was unlawful. Mrs Vine was entitled to the return of her pound;105, together with pound;5 for the inconvenience of being unable to use her car for 20 minutes.
Lessons for Colleges Mrs Vine was probably lucky. In the only other previous Court of Appeal case concerning clamping, Arthur v Anker in 1996, Mr Arthur - the owner of the clamped car - was unsuccessful as he was held to have voluntarily assumed the risk of being clamped.
The signs in the car park that featured in that case were at the entrance ad so highly visible, rather than obscured as in Mrs Vine's case. The judges' observations in these two cases allow us to draw up some ground rules for establishing a successful defence to an action by a disgruntled motorist.
The notices must be visible. Mrs Vine's case was perhaps exceptional: had she not been feeling unwell and dashed from the car after she had parked it, the judge might have ruled that she ought to have seen the warning notice. But it is clearly important to ensure that the notices are visible on entry to the car park. Where (as in Mrs Vine's case) there is no single entrance or exit to the car park, the notices need to be visible from the driving seat of every parked car.
The release fee must be reasonable. The court said in Mr Arthur's case that the release fee could not be "any unreasonable or exorbitant charge". The fee of pound;105 was split between the council and the contractor to cover their costs, and the judge accepted that the clamping procedure was not a profit-making operation for the council.
The notices must stay legible. Signs are often vandalised or removed. Management needs to put in hand a procedure to ensure that the signs are checked sufficiently frequently. Obtaining the car's release must not be unreasonably difficult.
The court in Mr Arthur's case said that the clamper may not detain the car once the owner has indicated a willingness to pay for the release, and there must be a means for the owner to contact the clamper. Reputable companies run 24-hour centres and accept credit card payments over the phone.
No damage must be caused to the car. The driver has implicitly consented to his car being clamped, but not being damaged.
It is quite possible that a court might decide that a clamper is liable for damage to a car caused where a driver did not know that his car had been clamped, and tried to drive off in the usual way. For this reason it is wise to attach a notice securely to the car to highlight the fact that the car is immobilised. This also highlights the driver's misfortune to other users of the car park, which is no bad thing. To "name and shame" is, after all, Government policy.