Recent Judicial Decisions
| Author | Rob Jerrard |
| DOI | 10.1177/0032258X9606900212 |
| Published date | 01 April 1996 |
| Date | 01 April 1996 |
| Subject Matter | Article |
ROB JERRARD, LLB,
LLM
Legal Correspondent
for
The Police Journal
RECENT JUDICIAL DECISIONS
Private Clampers: The Answer Does Not Lie in the Criminal Law
Arthurand Another v. Anker
(1995) The Times, December I Court of Appeal
The Arthurs' car had been wheel clamped 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 itfrom its owner until adequate compensation had been tendered
for the damage done. The second ground of defence was consent, or
volenti
nonfit
injuria, which as Lord Herschellhad said, in Smith v. Baker
and
Sons (1891) 55 IP 660, [1891] AC325,360, 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
wrong".
Taking that second ground first his Lordship referred to Cummings v.
Granger(1977) 141 IP 66, [1977] QB 397; Ashdown v. Samuel Williams
&Sons Ltd [1957] QB 409; and Lloyd v.
DPP
(1992) 156 IP 342, [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 orexorbitantcharge for releasing the car andthe court would
be slow to find an implied acceptance
of
such a charge. The same would
be 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 c1amper justify detention
of
the car after the owner had
indicated willingness to comply with the condition for release: theclam per
could not justify any delay in releasing the car after the owner offered to
April 1996 The Police Journal 167
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