Corporation Has No Authority To Clamp Vehicles

November 5, 2014

[Updated] Bermuda’s Chief Justice has ruled that the Municipalities [Hamilton Pay & Display Parking Wheel Clamping] Ordinance 2007 is not valid, and as a consequence the Corporation of Hamilton has no legal authority to clamp illegally parked vehicles in the municipality, the Centre of Justice said today.

The statement said, “Bermuda’s Chief Justice, the Honourable Dr. Ian Kawaley, has ruled that the Municipalities [Hamilton Pay & Display Parking Wheel Clamping] Ordinance 2007 is not valid. As a consequence the Corporation of Hamilton has no legal authority to clamp illegally parked vehicles in the municipality.

“The Corporation had asked the Supreme Court to clarify whether it had power to clamp vehicles following Centre for Justice’s 2013 public statement that the Corporation lacked authority to do so, and in the wake of similar sentiments being expressed by the former Senior Magistrate, Wor. Archibald Warner. Centre for Justice was permitted to intervene in the proceedings.

“Based upon its research, Centre for Justice found that the full text of the Ordinance was never properly published as required by the Corporation’s enabling legislation.

“The Chief Justice found that the effect of this failure was not only to deprive the public of the opportunity to apprise themselves of the scope of the Corporation’s planned wheel clamping policy, but also to understand how they might be adversely affected by that policy.

“Centre for Justice believed that substantive compliance with the publication requirement was needed given wheel clamping deprives a person of their property and hinders their ability to move about freely, in violation of constitutionally protected rights and freedoms. The Chief Justice agreed.”

Centre for Justice’s Managing Director, Mrs. Venous Memari said: “The decision of the Chief Justice is significant in that it makes clear that the Corporation’s powers are not limitless. It cannot take steps to regulate its property without regard to the rule of law, particularly where those steps adversely affect people.”

“We are pleased that the Chief Justice found that the concerns Centre for Justice raised about the legality of the Corporation’s Wheel Clamping Policy were fully justified.”

The question of whether members of the public who have paid to have their vehicles unclamped will be able to recoup the $100 unclamping fee was not before the court.

“Members of the public who have paid to have their vehicles unclamped should seek a refund directly from the Corporation in the first instance, failing which a claim to recover that money paid can be made in the Magistrates’ Court.

Update 5.12pm: In response to this, the Corporation said, “It is abundantly clear from today’s ruling by the Chief Justice that Corporation and the Government need to be working in tandem. Consequently we do not wish to make any statements until we have had the opportunity to discuss with the Government how we will be moving forward.”

The legal ruling is below [PDF here]

Share via email

Read More About

Category: All, News

Comments (62)

Trackback URL | Comments RSS Feed

Articles that link to this one:

  1. CoH: Sue Us For Clamping, We Will Counterclaim - Bernews.com : Bernews.com | November 24, 2014
  1. Politricks says:

    Obviously the Chief Justice has not considered who would be paying for the CoH members’ iPads and suits going foward…

    Any parking signs left to steal?

  2. flikel says:

    Wow, this is huge. Will the traffic enforcement clamping team be out of a job now? Also, does the COH have enough cash to give everyone a refund?

    Also, how can you prove that your vehicle was clamped, in the past, and thus entitled to a refund?

    I am sure folks would have thrown old tickets away and somehow I don’t think the COH would admit to having records of all clampings.

    • Seascape says:

      I kept my receipt as I always thought they had no right to clamp the vehicles. I will try to get my money back.

      I wonder if the ruling applies to KEMH – they clamped as well.

      • Silence Do Good says:

        No one has the right to clamp in Bermuda period. It is against constitutional rights for freedom of movement. I hope the government never allows the corporations or any other entity to clamp by a change in the traffic act. There are other alternatives to control parking.

    • DCumberbatch says:

      I can shed some light on your question.
      If or when you have been clamped. The officer HAS to get you a signed copy of the ticket. This ticket will be the evidence which proves the time and location in which you have been clamped.
      With out the ticket if you made a cash withdrawal, this may also help in aid of your refund.

    • Kae Foggo says:

      I have my old ticket and have been fighting this ticket for over a year and have had to wait for first Mr Benevides then someone in his office finally responded then was told that I’d not get a refund. I was using the parking device and thought that I had turned it on and was safe to park so I was surprised to find that I was clamped and find $100 to unclamp the car.. Totally disgusted by the whole situation.

  3. So what now? says:

    So what happens now if they clamp your vehicles? You have to pay and then try to claim your money back? Because I doubt that’ll ever be successful! Can you actually phone the police…seeing as they are illegally clamping your vehicle? Surely it’s now just the same as if I put a clamp of my own devising on to someone’s car…

    • This is a good question and maybe the legal eagles that come on here trying to defend the O.B.A every tow minutes has the answer. after all any chance to slam the C.O.H or the P.L.P, they come on here in droves, so you shall get your answer shortly.

    • Amazed says:

      @sowhatnow – not sure what you read but I think I read that it’s illegal to clamp. Meaning they cannot clamp anymore until such time as their legal team sort this mess out. I am sure that in the meantime the traffic wardens will take over – you all won’t be getting off scot free.

    • Just a thought says:

      If they clamp your car – they have unlawfully deprived you of its use. Call the police and report that it has been stolen or removed.

  4. Banana says:

    It’s about time…

  5. Jeremy Deacon says:

    I wonder how much the Corporation stands to pay back and whether there will be an appeal on this?

  6. Truth is killin' me... says:

    I’m going to hold a short march this Friday at 12:00pm from City Hall Car Park to City Hall Reception to demand my refund. All clampees may attend! The LAW has spoken!!

    • c says:

      Your kidding right…

    • When you march please go by way of queen street so you can pick up some k.f.c while your at it, then go next door to Caiseys and get some drinks, so by the time you reach city hall you might look stupid, but at least you won’t feel stupid.

      • ha says:

        Just as stupid as you look when your so called marches turn into plp rallies??????. Dont answer that…short term memory loose is a right****

      • Family Man says:

        And if he wears a green shirt, he’ll fit right in.

    • Cleancut says:

      Chris Furbert, Rev. Tweed is that you?

  7. kilometer says:

    So, does the Corporation now just republish the Ordinance in full, allowing them to be in compliance?

    • Just my 2 cents says:

      No- I realise the judgment is lengthy- but they cannot simply publish it again and it becomes law. It has to follow a proper process to be properly published.

  8. InquiringMindsWannaKnow says:

    IT’S MY MONEY, AND I WANT IT NOW!

    • got a dear friend that has been clamped more then 5 times because they work in the city, $500 could come in handy for the up coming holidays.

      • Creamy says:

        Perhaps they could use the money to pay for their frikkin parking like the rest of us.

  9. Declan Harrison says:

    I’m going to assume that the COH obtained some kind of legal assurance, either from an in-house source or outside source, with respect to the legality of clamping illegally-parked vehicles. If they didn’t, then that’s really amateurish, but if they did, then one has to wonder about who that legal source was.

    • Agreed but I think the damn government should pay because the judicial system is acting out now, after this is been happening for the last couple of years, talk about stealing right under your nose, if and I say if the C.O.H has no legal right to do this and this is a public act that all motorist just about knew was the case within the city limits, why is it just now that the judiciary is taking such steps, so in all fairness I do not think that the C.O.H should be made to pay if they were never stopped in the first place.

      Let some bright person decide they will sell marijuana out of a legal establishment,while they are waiting with anticipation that it will become law some day soon, will not be any more justify then this foolishness.

      • ha says:

        You sir are an idiot!!!!! Remember this came into effect when plp was in power. Think you need to see a doctor. Your short term memory is real bad!

      • serengeti says:

        Oh dear. I think someone is a little upset.

      • East side all the way says:

        Clearly you didn’t have an work to do and caught yourself trying to be smart. It is better to say nothing and have people assume you’re ignorant than to post on this blog and prove it undoubtedly

    • Come On Man says:

      If they did. That indivudual or those individual’s should be fired.

    • hmmm says:

      Wasn’t there a lawyer in their group?

  10. Parkingticket says:

    Does Donal know this.
    Can COH officials now order parking signs they put up to be taken down? This COH is something.

    • Silence Do Good says:

      All of the CoH new traffic and parking laws rates devices etc….are not legally made according to the process laid out in their act and others. The circus at the CoH think that they can do anything they like based on misinterpretation of the act provided by some very bad legal advice. It ok because the lawyer got his money and the CoH has got egg on their face.

  11. Intrepid says:

    The Corporation should now lock all of their parking lots. If you can park there without paying, why would they open them to the public?

    • hmmm says:

      You can still be ticketed, apparently according to this, you cannot be clamped.

      Failure to pay tickets will catch up with you.

      • Silence Do Good says:

        I would not be surprised that because they tried to enact their new parking regime without going through the proper process (like the clamping regime) it effectively made all of the parking regulations null and void. It would be hilarious if all Parking were free in Hamilton and any parking tickets would also be joke because they are not back by any legal legislation.

        Can I get a ruling on if their new parking regime is legal and or voided previous parking laws?

  12. But... says:

    They may not have legally advertised it but it’s as though none of us know the rules…we just chose to break them. We assessed the risk and found that it was worth the potential for a $100 fine.

    If the COH had to pay everyone back then there would be cuts to budgets and a lot of innocent people who didn’t park illegally will suffer.

    Is this something that we really want to see happening?

    When a case goes to court and the person gets off because the prosecution did something slightly wrong then we all complain that it is a miscarriage of justice…but when the situation is reversed then we all want our money back.

  13. Come On Man says:

    I’ve been saying this since it first started. I’m so glad that someone has questioned it. People in Bermuda are so afraid of authority. Whatever they the authority’s say or do most people in Bermuda say yes. Let this be a lesson to all those Dudley Do Right’s. NEVER BE AFRAID TO QUESTION AUTHORITY. They are not always right.

    • Codfish and Potatoes says:

      Well it was challenged by the magistrate and he was correct. How can it be legal to disable a $50,000 vehicle for a $50 fine? Rubbish.

      • Common Cents says:

        How does the cost of the vehicle figure into this? Expensive BMWs are off limits, but Chevy Aveos are fair game??

  14. Marge says:

    In all of my years on this Island, I have never seen the COH in such a disarray …. can someone please fire these idiots ?

    • Coolieh says:

      To be fair, clamping did start under this Administration. Stop brushing everything with one brush!

      • Just saying says:

        @Collieh, Clamping started 7 years ago. That was not under this administration, however, it was also a different COH administration if I remember correctly.

  15. memory lo$$ says:

    about time, and given the general sentiment regarding the Corp of Hamilton, their lavishness, and arrogance, maybe they should see this as a sign of the future.

  16. Just Sayin' says:

    Having read the judgment, there are some interesting facts:-

    1. The Corporation has been doing this for 7 years without, it appears, any real objection from Government;
    2. It is clear that these car parks are PRIVATE PROPERTY, and if you park on someone’s land, without permission, or without paying the right amount, why can’t you be clamped? Other businesses do it.
    3. The Corporation were the ones to take this matter to Court to see (after 7 years) if it was okay for them to continue to clamp.
    4. As it is private property, why can’t the Corporation simply close the car parks or rent them out to someone instead? In fact, that’s exactly what they should do.

    The simple fact here is that if you go onto someone’s private property, without proper permission, you are a trespasser. So what is wrong with what the Corporation is doing?

    One can only hope that Government and the COH will sort this mess out, quickly and satisfactory.

    • Creamy says:

      Looks like you did not actually read the judgment. It answers all these questions.

    • Silence Do Good says:

      If someone trepasses on my property am I going to keep them there until the compensate me for the trespasses? What is a fair compensation on a $8.00 or $5.00 a day parking permit? When is it justified to limit someones freedom of movement because the parking meter expired 2, 5, 20 or an hour ago? Is there an alternatives to prevent someone from illegally parking without offending their constitutional rights?

  17. Watcher55 says:

    Give the clamping zombies a broom and have them sweep the parking lots and help old people load their groceries into their cars

    • Creamy says:

      They could perhaps get up at 4.00am and powerwash the sidewalks. That might get rid of the stink of urine.

  18. Triangle Drifter says:

    I have no problem with clamping. It happens in citys & towns all over. You don’t pay. You get clamped. Very simple.

    However, from a legal standpoint it looks like the COH has been doing stuff that they cannot legally do. A nice little money grab. Now, yet again, this COH has been caught with its pants down. Hope folks saved all of their receipts for the fines that they paid. You just know that all of the COH clamping records have by now mysteriously dissappeared.

    • just wondering says:

      “Now, yet again, this COH has been caught with its pants down.”

      given that this has been going on (clamping) for the last 7 years I don’t think its fair to blame “this COH” with the problem

  19. thank you sir. thankyou so very much.You are likenened to a fairness and decency that has conotation of wizdom and fairplay of yore.

  20. Creamy says:

    I like Ian Kawaley. He is a very fair man. We have an excellent Chief Justice.

  21. CLAMPTHETEAM-NOT VEHICLES says:

    Fantastic news. Ironically, I was in City Hall parking lot yesterday after many months-years avoiding Hamilton due to the Great Mayor’s draconian parking restrictions. (Our first move to avoid Hamilton was to re-locate our P.O.Box.) Even before the ticket spewed out of the pay machine, one of his henchmen attendants was standing at our car. Our ticket foiled his intentions.

    Upon viewing yellow clamps on two vehicles next to us, I envisioned these obnoxious crab-claw devices would be better used to clamp the Great Mayor and his whole team to the trees they set out to destroy on Ewing St.. Copying the use of the stocks in St. George’s, the populace could be encouraged to throw accusations and rotten food at them. Preferably, to protect the citizens of Bermuda from further abuse, they should remain clamped until next May when their term expires.

    Another observation: If a non-working resident is paying $50.00 plus a week for periodic stops in Hamilton to do shopping, dining, etc., don’t go. Put this saved cash in a jar. When you get enough, fly to New York and really enjoy yourself shopping and dining. The COH has deprived the use of Hamilton from us all. As for the back of town–fees for 5 minutes of parking to do an errand – criminal.

    What extremes this sorry lot have devised to pay themselves to attend meetings, when the history of the Corporation dictates otherwise.

  22. HRB says:

    IMO…clamping is not about controlling parking. It is a huge revenue stream for the corporation. When the gov’t decided to take away the dock fees that coh had been collecting, they have had to try and raise revenue any way they can. This apparently is a good money maker.

  23. Disa says:

    THey clamp at Rockaway in Southampton. No-one can park their car in a visitors bay at night. Is that legal?

Latest Tweets From ForeverBermuda.com