Q.B. 564
[COURT OF APPEAL]
ARTHUR AND ANOTHER v. ANKER AND ANOTHER
1995 Nov. 13, 14; 30
Sir Thomas Bingham M.R., Neill and Hirst L.JJ.
Tort - Cause of action - Unlawful interference with property - Vehicle parked on private property - Defendant clamping vehicle and demanding fee for release - Whether lawful
Execution - Distress damage feasant - Car - Parking on private property - Landlord's right to distrain - Whether proof of actual damage necessary
The leasehold owners of a site used as a private car park engaged the defendants to prevent unauthorised parking. The defendants displayed notices at the entrance to and on the site warning that vehicles parked without authority would be clamped, that a specified release fee would be charged and that obstructing vehicles might be towed to the defendant's pound. The notices indicated a local telephone number by which the defendants could becontacted. In accordance with the warning notices the first defendant clamped a car parked on the site by the first plaintiff without authority. The first plaintiff refused to pay the release fee. The second plaintiff arrived at the site in a pick-up truck, and when the first defendant attempted to clamp that vehicle, the second plaintiff assaulted and abused him. Later the plaintiffs removed the clamped car together with the first defendant's locks and clamps. In proceedings brought by the plaintiffs for damages for malicious falsehood and tortious interference with their car the first defendant counterclaimed for assault and the cost of the clamps and locks and asserted by way of defence that the first plaintiff's trespass entitled him to immobilise the car and demand the release fee as the reasonable cost of distraint, alternatively, that since the first plaintiff was aware of the notices he was to be taken as having consented to their terms. The judge found that the first plaintiff was a trespasser on entering the site, that he had seen the notices and appreciated their effect. The judge concluded that the first defendant had been entitled to exercise the remedy
 Q.B. 564 Page 565
of distress damage feasant, that the fee charged was reasonable and that the first plaintiff had impliedly consented to the consequences of his trespass. He accordingly dismissed the plaintiffs' claim and entered judgment for the first defendant on the counterclaim.
On the plaintiffs' appeal:-
Held, dismissing the appeal, (1) that by voluntarily accepting the risk that the car might be clamped the first plaintiff also accepted the risk that it would only be released on payment of the reasonable cost of clamping and removing the clamps and accordingly had impliedly consented to the otherwise tortious acts of clamping the car and detaining it until payment (post, pp. 573A-B, 578C, 581E).
(2) (Hirst L.J. dissenting) that, even if a landowner might in some circumstances distrain damage feasant a car parked on his land without permission, he could only do so to recover compensation for damage actually suffered; but that, since the leasehold owners were not found to have suffered actual damage and since neither they nor the first defendant had any claim for compensation, the remedy was inapplicable (post, pp. 576C-D, 578C).
Per curiam. (i) A clamper may not exact any unreasonable or exorbitant charge for releasing the car; nor can he 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 (post, pp. 573B-C, 578C, 581E).
(ii) Even if the plaintiff did not consent the first defendant believed he had reasonable grounds for demanding payment and to keep the car clamped until he was paid. He was not guilty of blackmail (post, pp. 577H-578A, 581E).
Per Hirst L.J. It is not necessary to prove actual damage in support of the remedy of distress damage feasant. The impending threat of damage, namely the presence of a trespassing car, is sufficient; but if actual damage is necessary, the cost of clamping the car constitutes such damage (post, pp. 582G-583B, 584D-E, 585A-B).
The following cases are referred to in the judgments:
Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co. (1853) 2 E. & B. 793
Ashdown v. Samuel Williams & Sons Ltd.  1 Q.B. 409;  3 W.L.R. 1104;  1 All E.R. 35, C.A.
Black v. Carmichael, 1992 S.C.C.R. 709
Boden v. Roscoe  1 Q.B. 608, D.C.
Bunch v. Kennington (1841) 1 Q.B. 679
Controlled Parking Systems Ltd. v. Sedgewick  4 W.W.R. 425
Cummings v. Granger  Q.B. 397;  3 W.L.R. 842;  1 All E.R. 104, C.A.
Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144
Lloyd v. Director of Public Prosecutions  1 All E.R. 982, D.C.
Reg. v. Howson (1966) 55 D.L.R. (2d) 582
Reynell v. Champernoon (1631) Cro. Car. 228
Silverstein v. H.M. Advocate, 1949 J.C. 160
Smith v. Baker & Sons  A.C. 325, H.L.(E.)
Sorrell v. Paget  1 K.B. 252;  2 All E.R. 609, C.A.
Stear v. Scott (Note-1984)  R.T.R. 226, D.C.
Vaspor v. Edwards (1701) 12 Mod. 658
 Q.B. 564 Page 566
Williams v. Ladner (1798) 8 Durn. & E. 72
Wormer v. Biggs (1845) 2 C. & K. 31
The following additional cases were cited in argument:
Baker v. Leathes (1810) Wight. 113
Deane v. Clayton (1817) 7 Taunt. 489
Fawcett v. York and North Midland Railway Co. (1851) 16 Q.B. 610
Kirkham v. Chief Constable of the Greater Manchester Police  2 Q.B. 283;  2 W.L.R. 987;  3 All E.R. 246, C.A.
Pitts v. Hunt  1 Q.B. 24;  3 W.L.R. 542;  3 All E.R. 344, C.A.
Reg. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board  Q.B. 458;  3 W.L.R. 967;  2 All E.R. 826, C.A.
Thornton v. Shoe Lane Parking Ltd.  2 Q.B. 163;  2 W.L.R. 585;  1 All E.R. 686, C.A.
Watkinson v. Hollington  K.B. 16;  2 All E.R. 573, C.A.
The following cases, although not cited in argument, were referred to in the skeleton arguments:
Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd.  A.C. 79, H.L.(E.)
Letang v. Ottowa Electric Railway Co.  A.C. 725, P.C.
Parker v. South Eastern Railway Co. (1877) 2 C.P.D. 416, C.A.
Reg. v. Brown (Anthony)  1 A.C. 212;  2 W.L.R. 556;  2 All E.R. 75, H.L.(E.)
APPEAL from Judge Anthony Thompson Q.C., sitting in the Truro County Court.
By a writ and statement of claim, issued from the Truro District Registry of the High Court on 11 May 1992 and amended on 17 August 1992, the plaintiffs, David Arthur and Annette Arthur, began proceedings which were subsequently tranferred to Truro County Court, claiming compensation, including loss of earnings, and damages, including exemplary and aggravated damages, against the defendants, Thomas Anker and Armtrac Security Services, for malicious falsehood and tortious interference with their motor car when parked on land at Moresk, Truro and with a second vehicle on the same occasion. By his defence and counterclaim, served on 3 August 1992, the first defendant denied the plaintiffs' claim, and counterclaimed for the value of wheelclamps and locks removed by the plaintiffs, and damages for assault by the second plaintiff. By defences served on 17 August 1992, the plaintiffs denied the first defendant's counterclaim. By his order, dated 7 May 1993, the judge gave judgment in favour of the first defendant, awarding him damages in the sum of £ 660, representing £ 560 for the cost of the wheelclamps and locks, and £ 100 in respect of the second plaintiff's assault.
By a notice of appeal, dated 2 June 1993, the plaintiffs appealed on the grounds, inter alia, that (1) the judge (a) erred in finding that the first defendant was not guilty of an offence under section 21 of the Theft Act 1968; (b) failed to address the plaintiffs' submission that the first defendant was guilty of converting their property contrary to the Torts (Interference with Goods) Act 1977; © misdirected himself in holding that distress
 Q.B. 564 Page 567
damage feasant applied to the present facts; (2) the first defendant was not entitled to rely on the doctrine of volenti non fit injuria; and (3) the activity of wheelclamping required careful regulation under the law and should only be done under the authority of Parliament.
The facts are stated in the judgment of Sir Thomas Bingham M.R.
John Cooper for the plaintiffs. The remedy of distress damage feasant applies to trespassing inanimate chattels, but no longer to animals. It enables chattels to be impounded to compel their owner to pay compensation for damage done to or on the land. There must be proof of actual, physical damage as well as trespass: see Fleming, The Law of Torts, 8th ed. (1992), 88; Reg. v. Howson (1966) 55 D.L.R. (2d) 582 and Stear v. Scott (Note-1984)  R.T.R. 226. Loss of revenue (see Controlled Parking Systems Ltd. v. Sedgewick  4 W.W.R. 425) and loss of car parking space per se are not sufficient damage. Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co. (1853) 2 E. & B. 793 is not in point because it was based on statute, not the common law.
The purpose of impounding the trespassing chattel is to enable the landowner to be free of it. Wheelclamping, on the other hand, perpetuates the presence of the chattel on the land. Besides, fees may be charged in respect of clamping but not in respect of the distress. Where fees have been lawfully charged, they have met the cost of keeping an impounded animal until its release: see Sorrell v. Paget  1 K.B. 252 and Wormer v. Biggs (1845) 2 C. & K. 31. Wheelclamping is a direct and immediate interference with a chattel and amounts to its conversion. The plaintiffs were therefore entitled to recover their vehicle by using such force as was necessary: Lloyd v. Director of Public Prosecutions  1 All E.R. 982.
The first defendant was not entitled to rely on the doctrine of volenti non fit injuria since the plaintiff could not be shown to have consented to the risk of being clamped and of having to pay the release fee. The first defendant's conduct in exercising the remedy of distress amounted to blackmail: see section 21 of the Theft Act 1968. [Reference was also made to Black v. Carmichael, 1992 S.C.C.R. 709.]
With regard to the first defendant's counterclaim, where a tortious act is also criminal the effect of consent may be relevant and the defence of illegality can be pleaded in tort: see Pitts v. Hunt  1 Q.B. 24. It is a matter of public policy whether a claimant who has chosen to participate in conduct that is criminal or otherwise reprehensible should be allowed to make a claim in tort: see Kirkham v. Chief Constable of the Greater Manchester Police  2 Q.B. 283. The court may therefore refuse the first defendant any remedy in relation to the plaintiffs' trespass.
Timothy Ryder for the first defendant. Wheelclamping of a trespassing vehicle is lawful as an exercise of the common law remedy of distress damage feasant: see Clerk & Lindsell on Torts, 17th ed. (1995), p. 1553, para. 29-29. The distrainor does not have to show that actual damage has resulted from the trespass: see Reynell v. Champernoon (1631) Cro. Car. 228; Williams v. Ladner (1798) 8 Durn. & E. 72; Baker v. Leathes (1810) Wight. 113; Wormer v. Biggs, 2 C. & K. 31; Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co., 2 E. & B.
 Q.B. 564 Page 568
793; Boden v. Roscoe  1 Q.B. 608; Sorrell v. Paget  1 K.B. 252 and Glanville Williams, Liability for Animals (1939), pp. 70-76. Therefore, Reg. v. Howson, 55 D.L.R. (2d) 582 should not be followed. [Reference was made to Lloyd v. Director of Public Prosecutions  1 All E.R. 982, 991 and Stear v. Scott (Note-1984)  R.T.R. 226, 231.] Even if actual damage is relevant its existence or otherwise is a queston of fact for the judge. On the evidence in the present case the judge was entitled to find that such damage had been sustained: see Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144.
The first defendant was entitled, in any event, to rely on the defence of volenti non fit injuria. One who freely assents to an act being done towards him cannot complain of it as a wrong: see Clerk & Lindsell on Torts, p. 82, para. 3-33 and Smith v. Baker & Sons  A.C. 325. The defendant must show that the plaintiff had full knowledge of the nature of the risk he ran and impliedly agreed to incur it. The release fee was not unreasonable, nor did it constitute an unwarranted demand made with menaces contrary to section 21(1) of the Theft Act 1968.
Stephen Richards as amicus curiae. Clamping a car and demanding a release fee are prima facie tortious acts, namely, trespass and conversion: see Clerk & Lindsell on Torts, pp. 636, 644, 702-703, paras. 13-12, 13-28, 13-158. The question is whether the clamper's conduct was justified by circumstances which negative liability in tort.
The right of self-help in cases of trespass, may be said to include the right to impound a trespassing vehicle. That derives from the common law remedy of distress damage feasant: see Clerk & Lindsell on Torts, p. 1553, para. 29-29. The remedy is available, as a general rule, only to a person, or an agent of a person who has sufficient possession of the land to entitle him to maintain an action for trespass: compare Reg. v. Howson, 55 D.L.R. (2d) 582. The remedy has been applied to both inanimate chattels and animals: see Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co., 2 E. & B. 793. The need to prove actual damage as an ingredient of the remedy has been questioned: see Winfield & Jolowicz on Tort, 14th ed. (1994), p. 675, Salmond & Heuston on the Law of Torts, 20th ed. (1992), p. 588; Fleming, The Law of Torts, p. 88; Clerk & Lindsell on Torts, p. 1555, para. 29-33 and Glanville Williams, Liability for Animals, pp. 70-73. But mere unlawful presence on the land is not sufficient for the exercise of the remedy: see Reynell v. Champernoon, Cro. Car. 228; Vaspor v. Edwards (1701) 12 Mod. 658; Williams v. Ladner, 8 Durn. & E. 72; Baker v. Leathes, Wight. 113; Wormer v. Biggs, 2 C. & K. 31; Fawcett v. York and North Midland Railway Co. (1851) 16 Q.B. 610; the Ambergate case, 2 E. & B. 793; Boden v. Roscoe  1 Q.B. 608; Watkinson v. Hollington  K.B. 16 and Sorrell v. Paget  1 K.B. 252. There must be an interference with the use of land which causes loss and for which the landowner can claim substantial compensation in an action for trespass: see Reg. v. Howson, 55 D.L.R. (2d) 582. Mere loss of revenue is insufficient: see Controlled Parking Systems Ltd. v. Sedgewick  4 W.W.R. 425. The cost of towing away an offending vehicle (see Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144) does not justify the exercise of the remedy.
 Q.B. 564 Page 569
The clamping of a vehicle is not within the ambit of the remedy. Such clamping is not preventative of the damage concerned but continues it. Clamping, unlike distraint, is deterrent, not remedial. The doctrine might more easily assimilate the removal of the offending vehicle by towing away if it were causing an obstruction and damage. But it may be preferable, as a matter of public policy, to limit self-help to detention rather than removal of the vehicle: see Stear v. Scott (Note-1984)  R.T.R. 226; Lloyd v. Director of Public Prosecutions  1 All E.R. 982 and Reg. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board  Q.B. 458.
The first plaintiff's implied consent to the acts complained of negatived the first defendant's liability. For consent to have such an effect it must be shown to have been freely given and to have extended to the particular conduct or risk of such conduct: see Clerk & Lindsell on Torts, pp. 82-83, paras. 3-33-3-34. Consent may be implied from the knowledge and actions of the injured party: see Cummings v. Granger  Q.B. 397; Deane v. Clayton (1817) 7 Taunt. 489; Ashdown v. Samuel Williams & Sons Ltd.  1 Q.B. 409 and Thornton v. Shoe Lane Parking Ltd.  2 Q.B. 163.
The removal and retention of the clamps and padlocks by the plaintiffs amounted to a tortious conversion. No defence is available for that or the second plaintiff's tortious assault in respect of the first defendant.
Cur. adv. vult.
30 November. The following judgments were handed down.
SIR THOMAS BINGHAM M.R. Oak Way is a commercial street in the City of Truro. A number of businesses lease premises which face on to it. To the back of these premises is an area of private land, enjoyed by the Oak Way leaseholders. It is used by commercial vehicles making deliveries to the premises. Itis also used by the leaseholders and their employees for private parking. Customers of the leaseholders may be given permission to park their cars there when visiting the leaseholders' premises. But it is not a public car park. No one is allowed to use it without the permission of the leaseholders, express or implied.
Over the years members of the public have repeatedly parked in this private car park without permission. It may be that it was more convenient than the public car parks available in the city, or it may be that those car parks were full, or it may be that some drivers preferred not to pay the charge to park in a public car park. In Truro, as in so many cities, parking on the highway is severely restricted, and drivers may have difficulty finding somewhere convenient to park.
Whatever the reason, the leaseholders entitled to the use of the private car park behind Oak Way were constantly plagued by the unauthorised parking of cars occupying space the leaseholders wished to keep for themselves, their staff, their customers and their suppliers.
 Q.B. 564 Page 570
To try and prevent unauthorised parking the leaseholders first put up a "Polite Notice" at the entry to the private land. It said:
"Please do not park in front of the chain or beyond this point. This is a private car park and access is required at all times. Unauthorised vehicles will be towed away at their owners risk and expense."
One might suppose that such a notice would deter drivers tempted to park without authority. But it proved ineffective. So the leaseholders engaged Armtrac Security Services to protect their land against unauthorised use.
Armtrac put up another notice at the entry to the site. It was printed in red and white under the prominent heading "Warning" and read:
"Wheelclamping and removal of vehicles in operation
"Vehicles failing to comply or left without authority will be wheelclamped and a release fee of £ 40 charged (in the case of Health Authorities £ 30). 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 £ 90 plus storage costs will be charged. For release contact Armtrac Security" and a Truro telephone number was given.
Additional signs, to very much the same effect and readily visible, were put up at different points around the site. The leaseholders were given a number of Armtrac discs for display by their own vehicles and by other vehicles which they authorised to use the car park. Armtrac employees made periodic visits to the car park: if they found a parked vehicle not displaying a disc they would check with the leaseholders to make sure that the vehicle had no authority to park, and they would clamp any vehicle found to have parked without authority.
At about 1.45 p.m. on Wednesday, 6 May 1992 Mr. Arthur, the first plaintiff in this action, drove into the car park and parked his car. He had no authority from any of the leaseholders to do so. He knew that it was a private car park and appreciated the effect of the notices. He then left to visit the local authority planning department with which he had business to do. It so happened that Mr. Anker, an Armtrac employee and the defendant in the action, saw Mr. Arthur's car. He inspected it and found no disc. He checked with the leaseholders and was told that none of them had given Mr. Arthur permission to park. So Mr. Anker clamped Mr. Arthur's car.
Mr. Arthur returned at about 2.30 p.m. He refused to pay the £ 40 fee to have his car declamped. Mr. Anker refused to remove the clamp without payment. There was a long and acrimonious dispute, in the course of which Mr. Arthur tried (unsuccessfully) to drive his car away with the clamp in position. Eventually Mr. Arthur telephoned his wife, who arrived in a pick-up truck which she also parked in the car park. Mr. Anker made to clamp that vehicle as well, and Mrs. Arthur assaulted and abused him. In due course Mr. and Mrs. Arthur left in the pick-up truck. Mr. Anker and other Armtrac employees remained at the car park until about 8 p.m., when they fixed a second clamp to Mr. Arthur's car and left. During the night Mr. Arthur returned to the car park and succeeded in
 Q.B. 564 Page 571
removing his car. He was unwilling to say quite how he had done so. When Mr. Anker returned to the car park the next morning there was no sign of Mr. Arthur's car, or the clamps, or the padlocks which had been securing the clamps.
At the trial these facts were hotly disputed. But the judge very largely accepted the evidence of Mr. Anker and his witnesses and the judge's findings are not now challenged, as indeed they scarcely could have been.
Mr. and Mrs. Arthur issued High Court proceedings claiming compensation and exemplary and aggravated damages (including loss of earnings) for malicious falsehood and tortious interference with their car. Mr. Anker pleaded in defence that Mr. Arthur had wrongfully trespassed on the car park by parking his car there; that Mr. Anker had been entitled to immobilise the vehicle and to demand £ 40 as reasonable costs of the distraint; and that, further or alternatively, Mr. Arthur, having seen the notices, had consented to the immobilisation of the car and could not now complain of it. Mr. Anker counterclaimed for the value of the clamps and padlocks which had been taken by Mr. Arthur and not returned, and also for damages for the assault by Mrs. Arthur.
The case was transferred to the Truro County Court and was heard by Judge Anthony Thompson Q.C. on 30 April 1993. He reserved judgment and handed down a written judgment on 7 May 1993. We are indebted to him for the care which he took in finding the facts and reviewing the relevant law. The upshot was that the Arthurs' claim failed and Mr. Anker recovered judgment for £ 660 on his counterclaim (£ 480 for two wheelclamps, £ 80 for two padlocks and £ 100 for Mrs. Arthur's assault).
The judge held that Mr. Arthur was a trespasser from the first moment that he (in his car) entered the car park. He also held that Mr. Arthur saw the warning notices and understood their effect. Neither of these conclusions is now challenged. He considered and rejected, despite Scottish authority to the contrary, the suggestion that Mr. Anker had on the facts committed the criminal offences of theft and blackmail. He then considered the two legal grounds upon which Mr. Anker sought to justify an interference with Mr. Arthur's car which would, in the ordinary way, have been tortious.
The first ground relied on was the old, medieval, self-help remedy, adapted to modern conditions, of distress damage feasant. Put in simple English, if a landowner found property of another causing damage on his land he could seize the offending property and withhold it from its owner until adequate compensation had been tendered for the damage done. Although the remedy developed primarily as a means of protection against straying livestock, it was not limited to that. The judge thought it doubtful whether proof of damage was necessary to found a right to distrain but held, assuming it was, that damage should in this case be presumed, since land was a valuable commodity, car parking spaces were at a premium and a party entitled to use of a private car park suffered loss if he was deprived of that use by a trespasser. The judge considered that the demand for £ 40 for removal of the clamp was reasonable and in no way extortionate, since that sum did little more than cover Armtrac's costs.
The second ground relied on was consent (or volenti non fit injuria). The judge held that Mr. Arthur parked in full knowledge that he was not
 Q.B. 564 Page 572
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.
The judge treated Mr. Anker, representing Armtrac, as the agent of the leaseholders. On the documents he was clearly right to do so, and his approach has not been challenged.
In argument, as in the county court, Mr. Anker's defence of distress damage feasant was addressed before his defence of consent. But I think it may be convenient to consider these topics in the reverse order.
Consent or volenti
In Smith v. Baker & Sons  A.C. 325, 360 Lord Herschell said:
"It was said that the maxim, 'Volenti non fit injuria,' applied, and effectually precluded the plaintiff from recovering. The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."
It is suggested (see Clerk & Lindsell on Torts, 17th ed. (1995), pp. 82-83, paras. 3-33, 3-34) that where intentional torts are concerned it may be more appropriate to speak of consent than of volenti, but the distinction does not appear to be crucial:
"Consent if present negatives liability. What must be established is that it was a consent freely given and extended to the conduct of which the plaintiff now complains."
In Cummings v. Granger  Q.B. 397 the Court of Appeal, applying section 5(2) of the Animals Act 1971 (itself reflecting old common law authority), held that a plaintiff who entered a closed yard at night knowing that an Alsatian dog was loose within had voluntarily accepted the risk of injury. In Ashdown v. Samuel Williams & Sons Ltd.  1 Q.B. 409 the first defendants (who were not the plaintiff's employers) had done what was necessary to warn her that she entered their land at her own risk, and she had chosen to take that risk. A similar principle is reflected in section 2(5) of the Occupiers' Liability Act 1957:
"The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."
The same rule is extended to trespassers by section 1(6) of the Occupiers' Liability Act 1984. In Lloyd v. Director of Public Prosecutions  1 All E.R. 982, a criminal case to which further reference is made below, the Queen's Bench Divisional Court accepted a submission that since an unauthorised parker had consented to the risk of his car being clamped the clamping was not a trespass: see pp. 991-992.
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
 Q.B. 564 Page 573
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 declamping 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 clampeduntil he paid the reasonable cost of clamping and declamping. 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 landowner 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 declamping 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.
Distress damage feasant
The application of this ancient remedy to animals was abrogated by section 7(1) of the Animals Act 1971 which substituted a new procedure for detaining trespassing livestock. But the terms of that subsection do not suggest that any wider application of the remedy has been affected, and historically the remedy has been recognised in relation not only to animate things but also to inanimate objects such as fishing equipment (Reynell v. Champernoon (1631) Cro.Car. 228), grain and straw (Williams v. Ladner (1798) 8 Durn. & E. 72) and a railway locomotive (Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co. (1853) 2 E. & B. 793). It is common ground in the present case that the remedy survives and is in principle capable of applying to inanimate objects. It is however plain that application of the remedy to facts such as the present is remote from anything which could ever have been contemplated by those who developed the remedy (the same could also of course be said of the Ambergate case); that if the remedy were in principle applicable it would 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 that application of the remedy in such circumstances would be unlikely to promote social harmony between the clamper and the clamped. I do not for my part feel constrained to undertake heroic surgery to seek to apply this medieval remedy to 20th century facts such as we have here.
My first reason for doubting whether the remedy can apply in the present case is conceptual. The object of the remedy is to enable a party
 Q.B. 564 Page 574
entitled to possession of land, personally or through an agent, to take prompt action to stop or prevent damage to his land or anything on it by seizing and impounding any "trespassing chattel" until its owner claims his chattel and tenders appropriate compensation. The most obvious self-help remedy, and that most commonly resorted to in the case of trespassing livestock, is to eject or remove the trespassing thing; but this deprives the landowner of any security for damage actually done to him by the trespassing thing, and ejectment or removal of a trespassing car from a city centre private car park poses special problems, as Nolan L.J. pointed out in Lloyd v. Director of Public Prosecutions  1 All E.R. 982, 991. There is no doubt here that the leaseholders have a sufficient interest in the Oak Way car park, that Mr. Anker is properly regarded as their agent and that Mr. Arthur's car was parked without express or implied authority so as to make him (and, notionally, his car) a trespasser. It is nonetheless clear that the result of clamping his car was not to stop or prevent the car from causing whatever damage it was causing to the leaseholders (see further below) but to ensure that the car would continue to cause the very damage (unauthorised occupation of parking space) of which the leaseholders complained. It does not appear to be a necessary, although it is a usual, feature of the remedy that the trespassing chattel should be removed to a place other than that in which it is seized (Glanville Williams, Liability for Animals (1939), p. 93). But it is on any showing anomalous that a self-help remedy should amount in effect to a self-inflicted wound. The truth is that the clamping of trespassing cars is effected as a deterrent, not to stop an existing trespass or prevent future damage by the trespassing chattel on the occasion when it is clamped. It would not, however, appear that deterrence had much, if anything, to do with this remedy as originally developed.
My second reservation concerns the requirement of damage. Most modern authors share, at least tentatively, the view succinctly put in Fleming, The Law of Torts, 8th ed. (1992), at p. 88: "A merely technical trespass does not suffice and it is unclear whether the cost of removal would be recoverable (as in an action for trespass)." In Salmond & Heuston on the Law of Torts, 20th ed. (1992), at p. 588 the view is expressed:
"There must be actual damage done by the thing distrained; for it is rightly taken and detained only as a security for the payment of compensation, and where there is no damage done there can be no compensation due."
See also Winfield & Jolowicz on Tort, 14th ed. (1994), p. 675 and Clerk & Lindsell on Torts, p. 1555, para. 29-33.
There is support in the authorities for this view. In Vaspor v. Edwards (1701) 12 Mod. 658, 660 Holt C.J. strongly inclined to the view that to distrain cattle damage feasant "they must be actually doing damage, and are only distrainable for the damage they are then doing, and continuing." In Wormer v. Biggs (1845) 2 C. & K. 31 the mere presence of a runaway horse in a private mews was not regarded as sufficient to justify a distress. The judgments in Boden v. Roscoe  1 Q.B. 608 appear to have assumed that some damage to the land or something on it must be shown.
 Q.B. 564 Page 575
In Sorrell v. Paget  1 K.B. 252 the Court of Appeal was willing to infer a finding of damage, but not to dispense with the need for such a finding.
Commonwealth jurisdictions which have inherited the English law of distress damage feasant have inclined to this view. In Reg. v. Howson (1966) 55 D.L.R. (2d) 582, 596 Laskin J.A. accepted Fleming's view, and this case was followed in Controlled Parking Systems Ltd. v. Sedgewick  4 W.W.R. 425. In the New Zealand case of Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144, 148, Quilliam J. held that there must be actual damage done by the thing distrained before the right of distress can be exercised, but regarded the cost of towing away an unlawfully parked car as amounting to actual damage.
Professor Glanville Williams regarded the authorities on whether the mere unlawful presence of a chattel was enough to justify a distress of it as too uncertain and conflicting for any assured answer to be given (Glanville Williams, Liability for Animals, p. 70) but was inclined to the view that since trespass was actionable without proof of actual damage the right to distrain should arise in the same way: see p. 76. The authority which gives most support to this conclusion is the Ambergate case, 2 E. & B. 793, since there is nothing in the report to suggest that the trespassing locomotive, although unlawfully on the line of the Midland Railway Co., was in any way obstructing traffic on the line or disrupting the business of the railway. The most that can be said is that unlawful use of the Midland Railway Co.'s line and disruption of its business in future were contemplated. In the much earlier case of Reynell v. Champernoon, Cro. Car. 228 the apprehension seems to have been of future damage.
It is plain that physical damage to the land or anything on it is not necessary to found a claim to distrain damage feasant. But I do not think a mere technical trespass, mere unlawful presence on the land without more, is enough. Actual damage would be shown if the party entitled to the use of the land were denied, or obstructed in, the use of it: see Williams v. Ladner, 8 Durn. & E. 72. Thus if any of the leaseholders, or any of the leaseholders' licensees (including suppliers seeking to make deliveries), were unable to use the car park, or prevented from unloading, by a trespassing car, that would amount to actual damage. But there is no evidence and no finding of any such evidence in the present case.
I have difficulty in accepting the view propounded in the Jamieson case  2 N.Z.L.R. 144 that the cost of towing away may on its own, amount to actual damage sufficient to justify the distress. If there is no actual damage otherwise entitling the landowner to distrain, he cannot become entitled to distrain simply because the distress itself will have a cost. It may well be, as Professor Glanville Williams suggests (Liability for Animals, p. 86), that the distrainor may justify a claim for all damages following from the original trespass including that sustained during the distress, but if actual damage is necessary to give the right to distrain it would defy logic to allow the distrainor to rely on the cost of the distress alone to justify the distress.
My third reservation relates to the question of compensation. The distrainor can retain the trespassing chattel as security for his claim to be compensated for the actual damage he has suffered as a result of the
 Q.B. 564 Page 576
trespass (plus, it may be, the cost of the distress). But it is plain that in a case such as this a flat charge for release of the vehicle, imposed irrespective of the period of the trespass and the time of day or night at which it occurs, and paid not to the leaseholder who has suffered the damage but to augment the profit of an agent who has suffered no damage, has no compensatory element at all. Since Armtrac render their services to the leaseholders without charge and look for their remuneration solely to fees paid by trespassing drivers for the release of their vehicles, the payments cannot be treated as discharging any liability of the principal to the agent. It is true, as Sorrell v. Paget  1 K.B. 252 makes clear, that if a distrainor demands an unreasonably large sum to release a chattel the trespasser need only tender a reasonable sum, and if the distrainor does not accept that tender his detention of the chattel thereupon becomes wrongful. But in cases such as the present the calculation of a reasonable sum would be subject to such variations and would give rise to such endless dispute as to make the operation of an orderly clamping regime on this legal basis wholly impracticable.
On the facts of the present case I reach a conclusion different from that of the judge. Even if it be accepted that a landowner may in some circumstances distrain damage feasant a car parked without permission on his land, he can only do so to recover compensation for actual damage he has suffered. The leaseholders here are not found to have suffered any actual damage; they have no claim to be compensated; and what Mr. Anker claimed as their agent was not compensation.
We were referred to two English criminal cases arising out of private wheelclamping: Stear v. Scott (Note-1984)  R.T.R. 226, D.C. (Kerr L.J. and Forbes J.) and Lloyd v. Director of Public Prosecutions  1 All E.R. 982. In both cases the defendants had knowingly parked on private land despite warnings that cars so parked would be clamped. In both cases the cars were clamped, and in both the defendants removed the clamps, damaging the clamp or the padlock which secured it. Both defendants were convicted under section 1(1) of the Criminal Damage Act 1971 of causing damage without lawful excuse, both appealed and both appeals failed. Neither court found it necessary to review the civil law rights of a landowner in this situation. The cases are authority for the proposition:
"that, at any rate as a general rule, if a motorist parks his car without permission on another person's property knowing that by doing so he runs the risk of it being clamped, he has no right to damage or destroy the clamp. If he does so he will be guilty of a criminal offence:" see Lloyd v. Director of Public Prosecutions, at p. 992.
This would appear to make clear that Mr. and Mrs. Arthur were not on any showing entitled to convert the clamps and padlocks belonging to Mr. Anker. On this basis Mr. Anker was entitled to judgment on his counterclaim in any event.
The Scots courts have had occasion to consider the criminal liability of the clamper. In Black v. Carmichael, 1992 S.C.C.R. 709 the defendants
 Q.B. 564 Page 577
were employed in a private car park in Hamilton. There were notices warning that cars parked without permission would be clamped and £ 45 charged for release. A number of cars were so parked and were clamped. Notices were stuck on the windscreens stating that the cars had been clamped and that £ 45 would be charged for release. The defendants were charged on summary complaints with extortion and theft. The defendants challenged the relevancy of both charges. The sheriff rejected the challenge to the extortion charge but upheld the challenge to the theft charge. Both sides appealed, the defendants against the upholding of the extortion charge, the prosecutor against the rejection of the theft charge. The defendants' appeal failed. The prosecutor's succeeded.
In upholding the relevancy of the theft charge it was held that an intention to deprive the owner permanently of the goods was not a necessary ingredient of the offence of theft in Scots law. This is not the law in England: see sections 1(1) and 6 of the Theft Act 1968. An English court would reach a different decision.
In rejecting the challenge to the relevancy of the extortion charge the Lord Justice-General, Lord Hope, said, at p. 717:
"In my opinion, it is extortion to seek to enforce a legitimate debt by means which the law regards as illegitimate, just as it is extortion to seek by such means to obtain money or some other advantage to which the accused has no right at all. Furthermore, the only means which the law regards as legitimate to force a debtor to make payment of his debt are those provided by due legal process. To use due legal process, such as an action in a court of law or a right of lien or retention available under contract, or to threaten to do so, is no doubt legitimate. It is not extortion if the debtor pays up as a result. But it is illegitimate to use other means, such as threats which are not related to the use of legal process or the unauthorised detention of the debtor's person or his property, and it is extortion if the purpose in doing so is to obtain payment of the debt."
It appears from this passage, as from a passage from Silverstein v. H.M. Advocate, 1949 J.C. 160, 163, quoted by Lord Allanbridge, 1992 S.C.C.R. 709, 720ä, that everything depends on whether the demand made is one which the law recognises as legitimate. That takes one back to the civil law, which may again be different in England and Scotland.
Section 21 of the Theft Act 1968 provides:
"(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief-(a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand."
If my conclusion on consent is correct, Mr. Anker did have reasonable grounds for demanding payment and was entitled to reinforce his demand by his threat to keep the car clamped until he was paid. But even if my conclusion on consent is wrong, he plainly believed that he had reasonable
 Q.B. 564 Page 578
grounds to demand payment and to keep the car clamped until he was paid. He was not, even arguably, guilty of blackmail.
Like the judge, I do not think the answer to the present case is to be found in the criminal law.
Since the judge was right on the first, consent, issue the appeal against his decision must be dismissed.
On the eve of the hearing in this court Mr. and Mrs. Arthur instructed a solicitor and counsel. Until then they had been unrepresented. Recognising the potentially far-reaching implications of any judgment we reached, we invited the Attorney-General to instruct an amicus to assist us on the general legal principles involved. Mr. Stephen Richards was accordingly instructed. We gratefully acknowledge the great help which he gave us.
NEILL L.J. I have had the advantage of reading in draft the judgment of Sir Thomas Bingham M.R. and I agree that the appeal should be dismissed for the reasons given in his judgment. I propose, however, to add some words of my own on the question of distress damage feasant.
Distress damage feasant is a remedy of self-help which has been recognised by the law for many centuries. It has features in common with the remedy of distress for rent but there are also significant differences. As long ago as the Statutes of the Exchequer the impounding of animals which a man found on his land "damage feasant" was excepted from the statutory restriction as to the classes of animal on which distraint could be levied: see Halsbury's Statutes, 4th ed. reissue, vol. 13 (1991), p. 599. The phrase "damage feasant" appears to be derived from the Old French "damage fesant," meaning causing loss.
It seems probable that in its original form the remedy was restricted to animals; there is much learning in the books as to the distinction between village or manor pounds and private pounds and as to the obligations at common law to feed impounded animals. But by the reign of Charles I, if not before, distress damage feasant was recognised as an appropriate remedy in the case of inanimate objects as well: see Reynell v. Champernoon (1631) Cro. Car. 228. In that case the defendant, who was the owner of a fishery, had seized the oars and nets of the plaintiff and others who were rowing on his waters. The defendant said that he had done so "for the safeguard of his fishing." The court held that he had been entitled to take the nets and oars and detain them to stop any further fishing, but that he had not been entitled to cut the nets.
We were referred to other cases to the same effect including Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midland Railway Co., 2 E. & B. 793 where the Ambergate Railway Co. had brought a locomotive engine and tender onto a branch line belonging to the Midland Railway. The Midland Railway detained the engine and tender and Ambergate brought proceedings in conversion. The court held that as Ambergate had demanded the return of the engine and tender in order to make use of them on the Midland Railway line the Midland Railway were entitled to distrain them damage feasant.
 Q.B. 564 Page 579
The remedy of distress damage feasant was abolished in relation to animals by section 7 of the Animals Act 1971. The old remedy was replaced by a statutory right to detain trespassing livestock and, in prescribed circumstances, to sell such stock. Hitherto, in contrast to the remedy of distress for rent for which a statutory right to sell the goods distrained was conferred by the Distress for Rent Act 1689 (2 Will. & Mar. c. 5), there was no right to sell an animal distrained damage feasant. The Act of 1971, however, did not abolish the remedy of distress damage feasant in the case of inanimate objects. The question which arises for determination therefore is whether the remedy is available on the facts of this case.
It will be convenient to consider first whether it is necessary for the distrainor to prove damage, whether already caused or merely apprehended, and, if so, the nature of the damage.
The need to prove damage
It can be strongly argued that as trespass to land is a tort actionable per se the remedy of distress should be available in the same circumstances as an action at law. It is to be noted that this argument has the support of Professor Glanville Williams and of the editors of Winfield on Tort, 7th ed. (1963). Furthermore it has found favour with Hirst L.J. In my view, however, it cannot be right for the law to countenance the use of self-help which involves the detention of a chattel if the distrainor has suffered no actual loss and none is apprehended. It has been said that distress at common law is merely a pledge for compensation for injury. In the absence of some actual or apprehended injury I can see no need for a pledge. Furthermore, the name of the remedy is consistent with the view that the trespassing animal or object must be causing (or threatening) damage or loss before the remedy can be exercised. I am also impressed by the fact that in some of the old cases disputes arose as to whether the tender of compensation was sufficient. I am not aware of any case where such a dispute related to the sufficiency of the tender of a merely nominal amount.
I turn therefore to the nature of the damage which must be shown.
The nature of the damage
In many cases of distress damage feasant the damage consisted of the eating of grass or other herbage or the trampling down of crops or other vegetation. It seems clear, however, that apprehended damage is sufficient: see Reynell v. Champernoon, Cro.Car. 228. It does not seem to have been suggested by Mr. Champernoon that any fish had already been caught. A modern authority is Sorrell v. Paget  1 K.B. 252. There the plaintiff's heifer had strayed onto the defendant's land where he kept a T.T. herd. The defendant impounded the heifer in his barn and, though no damage was proved, the Court of Appeal held that the defendant's action had been justified. It seems that the right to impound flowed from the threat which the heifer presented to the herd.
It is also clear that in some circumstances placing an incumbrance on the land can sufficiently interfere with its use as to amount to damage.
 Q.B. 564 Page 580
This is a possible explanation of the Ambergate case, 2 E. & B. 793 and of cases in which the use of the remedy of distress damage feasant has been approved where tithes have been placed on land so that it could not be used for pasture: see for example, Williams v. Ladner, 8 Durn. & E. 72.
The damage is not limited, however, to damage to the distrainor's land: see Sorrell v. Paget  1 K.B. 252 and Boden v. Roscoe  1 Q.B. 608, where the defendant's pony had escaped into the plaintiff's field and kicked the plaintiff's filly, seriously laming it. In the course of his judgment in the latter case Cave J. said, at p. 611:
"It is laid down distinctly in Rolle's Abridgement, that you may distrain damage feasant anything animate or inanimate which is wrongfully on the land of the distraining party and is doing damage there, whatever the nature of the damage may be. It is there said that you may not only distrain a greyhound running after rabbits in a warren, but also ferrets or nets which a man has brought into the warren, and has been using for the purpose of catching the rabbits. The plaintiff's distress, therefore, was a valid distress in respect of the damage to the filly ."
In Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144 it was held by Quilliam J., sitting in the High Court in Wellington, that the cost of removing an illegally parked vehicle could be regarded as actual damage justifying the retention of the vehicle. With the utmost respect I am unable to agree. It seems to me that the loss must already have occurred or be apprehended at the moment the remedy is put into operation. I do not see that the distrainor can by his own action create the necessary damage. In this context it is to be noted that after placing an impounded animal or chattel in a private pound the distrainor cannot claim damages in respect of the occupation of the land in the private pound.
The present case
I return to the facts of the present case which, at this stage, it is necessary to examine on the hypothesis that no notice of clamping had been given.
It can be argued that, even though there was no evidence that any damage had been done before the clamp was attached, the use of the car park by the leaseholders was interfered with, and that it was a possibility that some other motorist who wished to do business at one of the adjacent premises would have been turned away. There was, however, no evidence to this effect and for my part I am satisfied that on the facts of this case no sufficient damage was proved to justify the use of this self-help remedy.
The use of the remedy to control parking
I would, however, go further. There are many cases where the common law has been successfully adapted to take account of modern conditions. But I would deplore the widespread use of the ancient remedy of distress damage feasant to control the unauthorised parking of vehicles on private land. I would state my reasons as follows.
 Q.B. 564 Page 581
(1) The remedy had its origins in medieval times and provided a convenient form of self-help in agricultural communities.
(2) Parliament has now intervened and provided a new statutory remedy for cases for which the remedy of distress damage feasant was originally devised. The common law remedy survives in the case of an inanimate object but the foundations on which the remedy stands must have been weakened by the new legislation.
(3) At common law the distrainee is entitled to tender compensation for the damage suffered. It seems that this right will continue until perhaps the object detained is placed in a public pound. I do not see on what basis a distrainee would be able to calculate what that compensation should be.
(4) Under the old law certain animals were privileged from seizure, including horses while they were being ridden, and possibly while being led: see Bunch v. Kennington (1841) 1 Q.B. 679. It was suggested in argument in Bunch's case that a possible reason for this privilege was to avoid violent disputes. It seems to me, by parity of reasoning, that the courts should do nothing to encourage the use of clamping without notice. One can anticipate that many disputes would be likely to arise if clamps were applied to motor vehicles without any prior warning. To allow this form of self-help, save perhaps in an exceptional case where real damage could be shown, would in my view be a misuse of an old remedy.
(5) Pending some control introduced by Parliament it seems to me that the matter can be satisfactorily dealt with by means of clearly worded notices and by the application of the doctrine of volenti. This doctrine has been preserved in relation to trespassers by section 1(6) of the Occupiers' Liability Act 1984.
HIRST L.J. I gratefully adopt Sir Thomas Bingham M.R.'s summary of the facts, and I entirely agree with his conclusions on the issues concerning consent and crime.
On the issue concerning the remedy of distress damage feasant (hereinafter called the remedy) it is common ground that, despite its abolition in the case of animals by section 7(1) of the Animals Act 1971, it still applies in relation to inanimate objects, and so it is at least capable of applying to a trespassing motor vehicle. That still leaves a number of difficult questions of direct relevance in the present case.
The first problem is whether, as both the plaintiffs and Mr. Richards submit, there must be proof of actual damage, so that mere unlawful presence on the land (trespass per se) is not enough. Undoubtedly a number of the authorities which have already been cited by Sir Thomas Bingham M.R. are consistent with this view, but in none of them, as Mr. Richards acknowledged, was the question directly in issue. It seems to me on the other hand that there are a number of other authorities which are inconsistent with this view.
First and foremost is the railway engine case of Ambergate, Nottingham and Boston and Eastern Junction Railway Co. v. Midlands Railway Co., 2 E. & B. 793, where it is clear from the pleadings that the complaint related to the presence of the engine and tender on the defendant's line "for the purpose of using the same, and carrying and conveying upon . the said branch of the said railway, by means of carriages attached to the
 Q.B. 564 Page 582
said engine and tender, passengers and goods:" see pp. 794-795; thus the damage would only have occurred in the future if and when the plaintiffs had attached the engine and tender to the carriages, and set up a competitive service. All four members of the very strong court (Lord Campbell C.J. and Coleridge, Wightman and Erle JJ.) held that the common law right to distrain applied, in addition to the statutory remedy under the Railways Clauses Consolidation Act 1845 (8 & 9 Vict. c. 20).
The same applies in the Court of Appeal decision in Sorrell v. Paget  1 K.B. 252, where the plaintiff's heifers had strayed on to the defendant's field in which were the cattle of the defendant's T.T. herd.
Giving the leading judgment Bucknill L.J. (with whom Cohen and Asquith L.JJ. agreed on this point) stated, at p. 259:
"Unfortunately . the heifer . strayed into another field of the defendant where was his T.T. herd. The defendant saw the heifer there in the morning to his dismay, because he was anxious to keep his herd free from all possible infection. The defendant then impounded the heifer in his barn. I think the . question in the case is: Was he entitled to do so? In my opinion he was."
This shows clearly that what was at stake was the apprehended damage to the integrity of the T.T. herd.
The same also applies in the old case of Reynell v. Champernoon (1631) Cro. Car. 228, where the defendant seized the plaintiff's fishing nets to safeguard his fishing, that is another case of apprehended damage.
The latest editions of the current leading textbooks on the law of tort, as quoted by Sir Thomas Bingham M.R., undoubtedly support Mr. Richards's submission. However, Professor Glanville Williams, who was no doubt the academic author with the deepest knowledge of this branch of the law, took the opposite view (see Glanville Williams, Liability for Animals) (1939), at p. 76); so did the earlier editions of Winfield on Tort; thus in the 7th edition (1963) it was stated, at p. 381:
"It is a moot point whether the distrainor must prove damage and the question has been fully considered by Dr. Glanville Williams. Winfield suggested that, where it is for trespass, there ought to be no need to prove damage: first, because trespass is actionable per se; secondly, because it is desirable in the application of self-help (of which distress is a species) that the law should be sharply defined; it might be difficult for the distrainor to be certain in some cases whether the trespass did or did not involve damage. Moreover, doubtful as the authorities are, it seems that the trend of them in modern times favours Winfield's suggestion."
The same reasoning was the basis of Professor Glanville Williams's view.
I, for my part, find this reasoning very convincing, and I find it difficult to see why in a tort actionable per se the presumed damage should not also apply to this particular remedy. I would therefore be prepared to hold that it is not necessary to prove actual damage in support of the remedy, and on this basis the first problem does not arise. If however I am wrong, and damage needs to be proved, need it be actual damage?
Mr. Richards, in his most helpful argument, put forward as a possible explanation of the three cases which I have just cited that although there
 Q.B. 564 Page 583
was no actual damage, there was an impending threat of damage. If that is the correct explanation, then in my judgment that test is plainly made out here, since the whole purpose of private parking space in a busy city centre like Truro is that the space should always be available to licensed users, who are likely to need to drive in and out at various times of the day, and also always available to delivery vehicles, which may arrive at any time. Thus the presence of a trespassing car is to my mind a sufficient threat. This approach is very similar to the ratio of the judge, who held:
"Assuming, without deciding the point, that damage is a necessary ingredient of the doctrine, it seems to me that in the instant case, and indeed in any case of a trespasser parking his car in a private car park, damage must be presumed. Land is a valuable commodity, and car parking spaces, especially in city centres, are at a premium. A landowner or lessee who designates part of the land which he occupies as a parking space for himself and his invitees suffers a loss if he is deprived of that use by a trespasser."
It seems to me unrealistic to suggest that the threat has to be immediately present, in the sense that there must be evidence of a licensed user being unable to get in because the car park is full, or of a delivery lorry waiting outside ready to deliver, at the critical moment when the trespassing vehicle arrives. This approach would therefore provide an alternative solution to the problem. What however if I am wrong on both counts and actual damage is necessary?
Here I derive great assistance from the New Zealand case of Jamieson's Tow & Salvage Ltd. v. Murray  2 N.Z.L.R. 144, where it was held that the cost of towing away an illegally parked vehicle is properly to be regarded as actual damage, and which provides a very close analogy to the present case. This was a judgment of Quilliam J. in the High Court in Wellington, following an earlier decision of Cooke J., now the Rt. Hon. Sir Robin Cooke, President of the Court of Appeal of New Zealand.
Having referred to the Canadian case of R v Howson (1966) 55 DLR (2d) 582 at 596, where the opposite view was expressed by Laskin JA, Quilliam J proceeded (at 149):
'This could have been what prompted Cooke J to indicate a contrary view in Christopher v Police (Wellington, M 36/74, 22 April 1974). That was an appeal by the same Mr Christopher as was concerned in the present case, against his conviction for assault. In that case the complainant had parked his car without authority in a private car park. The occupier of the land instructed the tow firm (the present appellant) to remove the car. When the complainant located the car in the tow firm's yard he attempted to drive it away but was prevented by Mr Christopher who insisted on payment of the towage fee. A scuffle ensued which formed the basis of the charge of assault. It was argued for the appellant in that case that he was in peaceable possession of the car under the right of distress damage feasant. In the end it was not necessary for Cooke J to deal with that but he did so obiter in deference to the full argument he had received on it. It
 3 All ER 783 at 799
is sufficient for present purposes to say that he agreed in general with most of what Laskin JA had said in Howson's case. Cooke J said, however, in his judgment: “… and I would find difficulty in agreeing that expenses reasonably incurred in removing an unlawfully parked vehicle could not constitute damage justifying distress damage feasant. If a person parks a car on private property in a central city area, knowing that he has no right to do so and deliberately taking the risk of its being towed away, there seems to be no good reason why the occupier should not be able to recover such expenses as damages for trespass. As the textbooks recognise, damages for trespass to land are not limited to the injury to the land or the value of its use: see for instance McGregor on Damages (13th edn, 1972) paras 1066 and 1077; Ogus, The Law of Damages (1973) p 166. Expenses as obviously foreseeable as were the towage expenses in the present case are surely direct and natural rather than too remote. And, there being no New Zealand statute affecting poundage or removal charges in respect of inanimate chattels, I would be inclined to hold that, having reasonably incurred a towage charge which would be recoverable as damages for trespass, the occupier would be justified in causing the vehicle to be retrained by way of distress damage feasant until the charge was paid. Glanville Williams on Liability for Animals (1939) is consistent with this view if p 75 be read with p 86.” I find myself in respectful agreement with that. If the remedy of distress damage feasant is to be applied to modern conditions then it seems to me inevitable that the cost of removing an illegally parked vehicle would need to be regarded as actual damage. For myself I should be most hesitant to extend the remedy any further than is absolutely necessary but in this I think one is left with no sensible option.'
If therefore, contrary to my view, proof of actual damage is necessary, I would wish to adopt this conclusion, which I prefer to the view of Laskin JA in R v Howson, which was obiter and not supported by the other members of Ontario Court of Appeal.
Can the expenses of clamping be equated with the expenses of towing away? That depends on the solution of the next problem, aptly described by Sir Thomas Bingham MR as that of the 'self-inflicted wound'.
I readily accept that the ancient remedy normally involved the removal and the impounding of the trespassing animal or chattel to a place where it was innocuous, though Glanville Williams (p 93) demonstrates clearly by reference to some early cases that removal was not invariable.
The present situation is, in my judgment, eminently one where removal is not requisite, seeing that towing away (perhaps preceded by forcible entry into the vehicle) would be fraught with risk, as recognised by Nolan LJ, with whom Judge J agreed, in Lloyd v DPP  1 All ER 982 at 991, when he stated:
'If Mr Sharp is right in his submissions the only remedy open to a landowner who finds a car parked without authority on his land is to remove the car using as little force as may be required and to place it either on the highway or, if he knows who the owner of the car is, back at the owner's property. The practical difficulties and dangers which that remedy would involve can readily be imagined: breaking into the car if locked in the first place; propelling it by some means onto the road with or without insurance cover; leaving it where it might cause obstruction at least, if not danger to other road users.'
 3 All ER 783 at 800
To my mind, in the situation in which inner city car park owners find themselves nowadays, clamping is a legitimate and appropriate form of self-help, and towing away not normally a feasible method. That this particular method should result in a prolongation of the trespass is no doubt anomalous, but no more so than when the police clamp a row of vehicles partly obstructing a busy street.
The final problem relates to the quantum of compensation. Here it seems to me that once it is accepted that clamping is a permissible and legitimate mode of self-help, the flat rate charge is appropriate for exactly the same reasons as the towing away charge was appropriate in the New Zealand case. It goes without saying that the fixed charge must be reasonable in amount (ie a commercial figure covering the clamping firm's expenses plus an appropriate profit element), but there is no suggestion that the charge was excessive in the present case. Since on this basis the sum total of the damage is exactly equivalent to the clamping charge, I see nothing objectionable in the fact that the damages go to the clampers and not to the car park owners, who might otherwise make a windfall gain. For all these reasons I would uphold the judge on the issue of distress damage feasant as well as on the other two issues, and would dismiss the appeal on that ground also.
Might I add in conclusion that I do not consider this to be some outlandish extension of an antiquated remedy, but rather another valuable instance of the strength and flexibility of the common law in adapting itself to new circumstances in an ever changing world.
ibWiki copyright © CJVJ
Invision Power Board (http://www.invisionboard.com)
© Invision Power Services (http://www.invisionpower.com)