Euthanasia/remedies. The licence to clamp comes up for renewal

The 'Denver Boot', or car clamp as it is known in more polite circles, is the curse of motorists. Originating in the US, car clampers have been active in the UK for more than 10 years, unabashed, unregulated and unchallenged. But all this changed in the Court of Appeal on 30 November 1995.

It started when David Arthur parked his Rover on private land in Truro, on 6 May 1992. He left his car at 1.45pm and when he returned at 2.30pm he found it had been clamped by Mr Anker, an employee of Armtrac car clampers. Anker refused to remove the clamp without payment of a £40 fee. At 8pm, Armtrac fitted a second clamp to Arthur's car.

Arthur returned to the car park and succeeded in removing it without causing criminal damage to the clamps. He then claimed compensation and exemplary and aggravated damages for malicious falsehood and tortious interference with his car.

Anker pleaded in defence that Arthur had wrongfully trespassed on the car park by parking his car there; that Anker was entitled to immobilise the vehicle and to demand £40 as reasonable costs of the distraint; and that Arthur, having seen the notices, had consented to the immobilisation of the car and could not now complain of it.

At the first trial, Judge Anthony Thompson QC found against the car owner. He held that Arthur was a trespasser from the moment that he, in his car, entered the car park. He also held that Arthur saw the warning notices and understood their effect. Neither of these conclusions was challenged in the Court of Appeal.

The trial judge considered two legal grounds upon which Anker sought to justify an interference with Arthur's car which would normally have been judged tortious.

The clamping firm relied on the medieval remedy of self-help or distress damage feasant. Effectively, if a landowner found the property of another causing damage to his land, he could seize that property and withhold it from its owner until adequate compensation had been paid for the damage.

If this argument had succeeded in the Court of Appeal it would have meant that clampers would be able to immobilise vehicles without recourse to reasonable warning or the payment of reasonable fees upon release.

However, the Master of the Rolls, together with Lord Justice Neill and Lord Justice Hirst, rejected the clamping firm's self-help argument.

It was held that: “Application of the [self-help] remedy to facts such as the present is remote from anything which could ever have been contemplated by those who developed the remedy.”

The court added: “If the remedy were in principle applicable it would not apply to a party who genuinely did not know that he was trespassing and had received no notice that his car might be clamped and that the application of the remedy would be unlikely to promote social harmony between the clamper and the clamped.”

The court ruled that clamps could only be legitimately applied to a vehicle if certain, restricted, circumstances applied. It said clearly worded notices were a pre-requisite of clamping and that a clamper could not exact any unreasonable or exorbitant charge for releasing a car, adding that a court would be slow to find implied acceptance of such a charge.

In addition, the clamper could not justify detention of the car after the owner had indicated willingness to comply with conditions for release. Neither could the clamper justify any delay in releasing the car after the owner offered to pay. There also had to be means for the owner to communicate his offer.

It is clear from the judgment that the activities of car clampers have been severely curtailed. But uncertainty remains over the definition of a “reasonable” release fee.