Case Law (England & Wales)

There are 2 main cases that are relevant for private parking, these of Arthur v. Anker [1996] 2 WLR 602 and Vine v. Waltham Forest London BC [2000] 1 WLR 2383, which are cases concerned with whether an offending driver parking on private land consented to their vehicles being wheel clamped or not. Such consent being a defence (within England and Wales: contrast the position in Scotland: Black v. Carmichael (1992) SCCR 709) to the tort of unlawful interference with goods. Strictly speaking those cases are not directly in point because they are concerned with whether the driver was able to recover the fees that they had paid over to release their cars as being the damage that they had suffered as a result of the alleged unlawful interference i.e the imposition of the wheel clamp. Those cases do not specifically address the question of whether parking charges could be recovered on a contractual basis or not. Nevertheless those cases do consider the question of “consent” based upon notices which is of course clearly relevant where the question of whether a contract will have been formed or not is an “objective” rather than a subjective test: See Chitty on Contract, General Principles (28th Edition), paragraphs 2-02 and 2-024 to 2-027 and the cases there cited.

If an acceptor has conducted himself in a way that a reasonable observer would consider that he intended to accept a contractual offer made to him, that acceptor will be treated as having accepted that offer even if in fact he had no such subjective intention. Those principles are of course fairly similar to the principles that the Courts were grappling with in the Arthur v. Anker and Vine cases. The Courts will apply similar reasoning to the contractual analysis that parking companies are in fact concerned with.

The Vine v. Waltham Forest London BC case stated “the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judged objectively and not subjectively; once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property" - This simply means that if sufficient warning signs are in place then the contract has been made.

The court of appeal agreed and Lord Justice Roche stated “To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.”

Lord Justice Waller confirmed the above by stating “But I would suggest that absent unusual circumstances, if it is established that a car driver saw a notice and if it is established that he appreciated that it contained terms in relation to the basis on which he was to come onto another's land, but did not read the notice, and thus fully understand the precise terms, he will not be able to say that he did not consent to, and willingly assume the risk of being clamped.

There is also the older case of Thornton v. Shoe Lane Parking Limited [1971] 2 WLR 585. That case concerned the issue of whether an injured plaintiff who had driven into a car park with an automated barrier was bound by the terms of an exclusion clause that was contained within a long set of terms and conditions that were not particularly well displayed. The Court of Appeal (and in particular Lord Denning MR) held that he was not. The contract was concluded only upon the terms of the notice that had been prominently displayed in the entrance way before he had taken his ticket at the barrier (which notice did not include the relevant exclusion clause). Lord Denning MR stating in particular at page 589 that a customer of a car park would only be bound by those terms that were displayed “reasonably sufficiently” so as to give him notice of it.

All 3 cases mentioned above are also relevant in Scotland for the issue of contractual acceptance.