Arthur and Another v Anker: CA 1 Dec 1995

Clamping on Private Land may not be unlawful

The owners of private land engaged the defendants to prevent unauthorised parking. The defendants erected notices at the entrance to the car park and placed notices around the perimeter in red and white under the prominent heading ‘Warning’ and reading ‘Wheel clamping and removal of vehicles in operation. Vehicles failing to comply or left without authority will be wheel clamped and a release fee of pounds 40 charged . . Vehicles causing an obstruction or damage or left for an unreasonable length of time may be towed away and held at the company’s pound in Truro. A release fee of pounds 90 plus storage costs will be charged. For release contact Armtrack Security’. A parked there knowing that he was not entitled to and of stated consequences. His car was clamped, and he claimed for damages for tortious interference. The defendants counterclaimed because A, having refused to pay the pounds 40 fee to have his car de-clamped, returned during the night and succeeded in removing his car together with the two clamps and padlocks that the defendants had used to immobilise his car. The defendants ran two defences to A’s action. First that he had consented or alternatively assumed the risk of his car being clamped, so that what would otherwise have been tortious conduct by the defendants was not tortious. Second, that the defendants had seized the car damage feasant.
Held: Wheel clamping was not illegal on private land with sufficient notice and a means of payment.
Sir Thomas Bingham, MR said: ‘The judge held that Mr Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did. In those circumstances he was consenting to the consequences and could not thereafter complain of them. The effect of his consent was to render lawful conduct which would otherwise have been tortious.’
Sir Thomas Bingham, MR later said: ‘The judge found that Mr Arthur knew of and consented to the risk of clamping, and counsel for the Arthurs conceded in his written argument on appeal that this was so. But, counsel argued that the demand for payment amounted to blackmail and that the commission of this crime negated the effect of Mr Arthur’s consent. I give my reasons below for concluding that Mr Anker’s requirement of payment as a condition of de-clamping the vehicle did not amount to blackmail. It is enough at this point to say that by voluntarily accepting the risk that his car might be clamped Mr Arthur also, in my view, accepted the risk that the car would remain clamped until he paid the reasonable cost of clamping and de-clamping. He consented not only to the otherwise tortious act of clamping the car but also to the otherwise tortious action of detaining the car until payment. I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find 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 land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here. The judge held that the de-clamping fee was reasonable. The contrary has not been argued. In my view the judge was right to hold that Mr Arthur impliedly consented to what occurred and he cannot now complain of it. It follows that I would dismiss the Arthur’s appeal against the judge’s decision in so far as it rested on consent.’

Sir Thomas Bingham, MR, Neill and Hirst LJJ
Times 01-Dec-1995, Independent 07-Dec-1995, [1997] QB 564
England and Wales
Cited by:
CitedVine v London Borough of Waltham Forest CA 5-Apr-2000
The act of wheel clamping a car which was unlawfully parked is a trespass to goods. To avoid an action for damages, the clamper must show that the car parker consented to the clamping. He can do so by showing, in accordance with established . .
CitedAkumah v London Borough of Hackney HL 3-Mar-2005
The authority set up a parking scheme for an estate of house of which it was the landlord. Those not displaying parking permits were to be clamped. The appellant complained that the regulations had been imposed by council resolution, not be the . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Road Traffic

Leading Case

Updated: 10 November 2021; Ref: scu.77878