Vine v Waltham Forest London Borough Council

A wheel clamp placed on a trespassing vehicle is itself a trespass to the vehicle unless the owner consented to, or willingly assumed, the risk of clamping. That requires awareness of the consequences of parking. A warning’s objective visibility may support an inference of knowledge where its position and presentation make it likely to be seen and understood, but it cannot displace a finding that the driver did not see it. Consent may extend to detention until a reasonable release charge is paid, although that issue need not be decided where consent is absent. Exemplary damages remain punitive and exceptional.

The appellant parked her car in a private parking space leased by East London College. Contractors employed by the respondent local authority clamped it and required payment of £105, plus a credit-card charge, for release. The Recorder found that the appellant was trespassing but had not seen a warning notice, and nevertheless inferred that she had consented to or willingly assumed the risk of clamping. He dismissed her claim. The appeal concerned the effect of the warning notice, the alleged wrongful detention and the claim for exemplary damages.

1. Roch LJ gave the leading reasons. Waller LJ and May LJ agreed that the appeal should be allowed. The appellant was entitled to repayment of £108.68, or damages in that sum, with the related interest and loss-of-use sum. The appellant also obtained the costs of the appeal and below.
2. Parking on the land without permission was a trespass to the land, but that did not authorise interference with the vehicle. Immobilising another person’s car by wheel clamping was itself a trespass to the car unless the owner had consented to, or willingly assumed, the risk of clamping.
3. The person relying on consent had to establish that the vehicle owner was aware of the consequences of parking. A warning notice posted where it was bound to be seen, and presented so that the driver would be bound to read and understand its significance, could ordinarily support that finding. Mere objective visibility was insufficient where the fact-finder had found that the driver did not see the notice. On the facts, the Recorder’s finding that the appellant had not seen the sign was clear. Its position, the absence of a notice by the southern bay, the obstruction from the parked vehicle and the appellant’s illness and distress meant that consent or willing assumption could not be inferred.
4. In Arthur v Anker [1997] QB 564, the motorist had been found, and had conceded, to know of the risk. The court treated consent as extending to detention until payment of a reasonable release charge, but not to an unreasonable charge or delay after an offer to pay. The present court did not need to decide the reasonableness of the charge because consent was absent. May LJ added that Arthur had not decided whether full actual knowledge and understanding were always necessary. Waller LJ drew assistance by analogy from Mendelssohn v Normand Ltd [1970] 1 QB 177 and Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, emphasising the prominence and circumstances of the warning.
5. Lloyd v Director of Public Prosecutions [1992] 1 All ER 982 concerned criminal damage and was confined to criminal law. It did not determine the civil trespass issue. Exemplary damages were also refused. Applying Rookes v Barnard [1964] AC 1129, the respondent’s conduct was neither oppressive, arbitrary, insolent, malicious nor cruel, and was not calculated to produce a profit exceeding the compensation payable. The damages claimed were therefore compensatory, not exemplary.
6. The court also held that it was bound to hear the substantive appeal once the earlier two-judge court had directed a rehearing before three Lords Justices after disagreeing. The failure to notify the parties promptly was regretted, and the procedural issue was to be brought to the attention of the Master of the Rolls for possible practice guidance.

1. Court of Appeal (Civil Division): In [2000] EWCA Civ 106, the court allowed the appeal, reversed the decision on liability for clamping and detention, refused exemplary damages, and awarded the appellant her costs of the appeal and below.
2. Central London Trial Centre: Mr Recorder Crawford, CBE, dismissed the appellant’s action on 18 May 1998 and awarded costs to the respondent.