CoH: Sue Us For Clamping, We Will Counterclaim

November 24, 2014

The Corporation of Hamilton said that if anyone who had their car clamped sues the Corporation to recover the cost of the removal of the clamp, the Corporation will “make a counterclaim for trespass and will seek damages.”

This follows after Bermuda’s Chief Justice 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.

A statement from the CoH said, “The Corporation of Hamilton is still in discussions with the Government regarding the resolution of the current parking and traffic issues. While these discussions continue we have received a number of inquiries regarding those persons whose vehicles have been clamped.

“After discussions with our legal advisors the Corporation is advising the public that any person who parks on the Corporation land without paying or stays in a parking lot longer than allowed, is committing a trespass.

“If a person who has been clamped in the past sues the Corporation to recover the cost of the removal of the clamp, the Corporation will make a counterclaim for trespass and will seek damages.

“If the Corporation is forced to make such a counterclaim, it will also be seeking the legal fees and costs of doing so,” the statement added.

The legal ruling about the clamping is below [PDF here]

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Comments (79)

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  1. Mr.Speaker says:

    COH is a joke

    • Bermewjan says:

      Bwahahahaha! Did the CoH really put this forward as a defence against a class action lawsuit. That’s hilarious! Did they even bother getting legal advice. If any lawyer actually suggested this, they must truly dislike their client. This is ludicrous. Oh man, I can’t wipe the smile off my face. LMAO!

    • Lebron says:

      Just call the police if they clamp you. COH will soon get bored of that.

      • Hmmm says:

        By clamping them, you are forcing them to remain as trespassers. You are in effect welcoming trespassing by forcing them to stay there.

        If you invited them to park there how can they be trespassers. They oustayed their welcome yes and can be ticketed at that time. But to sue them for trespassing don’t make sense. There was no pre warning of tresspassing or trespassing penalties. How can you turn around and trick people . That would be disgusting and probably not legally sound.

        Think perhaps you need to take another look at that.

        Who are your legal advisers….i am not a lawyer or nor do I profess to understand the workings of the law….but this counter sue threat is logically wrong. Also threatening the public of more financial loss and thereby dusuading folks to equitable recouse seems highly unfair.

        Please can one of the large law firms do some pro bono work om this….the people sseem to have been threatened. Their freedoms have been threatened, in my humble and naive opinion of course. What do I know.?

        • Totally agree! “Who are your legal advisers? I’m not a Lawyer or nor do I profess to understand the workings of the Law but this counter sue threat is logically wrong. Also threatening the public of more financial loss and thereby dissuading folks to equitable recourse seems highly unfair.
          Please can one of the large law firms do some pro bono work om this, the people seem to have been threatened? Their freedoms have been threatened, (in my humble and naive opinion of course. What do I know :-( )

        • memory lo$$ says:

          and no “no trespassing signs” which we know is required to get rid of ppl legally.

    • ole Onion says:

      I’ve been clamped before ! Didn’t like the consequences for going over the time limit !
      How do they arrive at such a figure when you only pay 2$ for an hour???? This left a very foul taste I refuse to use their facilities that require payments ! I’m waiting for someone to sue them for the dumb idea to put red bricks which are uneven on a side walk ! Unsafe !!! Whose dumb idea was that ooops did I say dumb ? You can tell when pen pushers make practical decisions ! Doesn’t add up !

  2. Andrew Woodworth says:

    Perhaps the CoH should ensure their legal advisors understand basic legal principals?

    http://en.wikipedia.org/wiki/Abuse_of_process
    http://en.wikipedia.org/wiki/Malicious_prosecution

  3. yamon says:

    Well played COH. Well played.

    • Build a Better Bermuda says:

      The fact of the matter is, any action in the courts going forward to recoup, will simply cost everyone… Well everyone except the layers. The courts have ruled that clamping by CoH is illegal, so going forward they can no longer practice it, any suits against the CoH to recoup past fines means the legal battling is going to cost the CoH… And where do they get their money… Taxpayers, so they are are the ones who lose out. Until the CoH sort this out legislatively, any attempt to go to the courts further with this will just make us all losers.

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

    Someone with a few dollars for a lawyer should take them up on it and see the COH get shot down again in the Courts!

    • Dat Bie says:

      I may do that!

    • Silence Do Good says:

      In May 2015 the Ratepayers and Residence will get to vote for a new City Council. Once the City Council is elected I hope they fire the legal firm that is advising them and any City Manager that is on board with being so disrespectful to the public that financially support you.

      Businesses make money by selling goods and services to the public who patron Hamilton. Business use those revenues earned to pay municipal taxes. Why is the CoH trying so hard to disenfranchise the public from visiting businesses in Hamilton?

      If you want to control parking at your lots, get the fare price for time spent and stop abuse put in ticketed gates that require individuals to pay before they can leave. Then it does not matter if they park there 1 hour and go 10 minutes over or park there for a month you will get the revenue. Clamping you have to pay individuals to ride around in a van and think of the message it is sending when you are punitive to the person who is a few minutes over.

  5. Jonny rocket says:

    im still trying to figure out the trespassing part…

    • Little Lady says:

      Me too. Aren’t the lots for public use at the publics expense? Totally confused. If it’s trespassing once past your allotted park time, then it should be deemed trespassing period. Let’s see what a judge has to say about this crap.

      • Darwin's Child says:

        It’s not trespassing if you have a licence (legal term meaning permission of the owner basically) to park there (ie paid the fee). As soon as that licence expires you can be said to be there without permission and therefore trespassing.

        It sounds good in theory but not sure how it would hold up in court.

    • Next it will be clamp my car, clamp your ankle…. 100 dollars to unclamp your ankle… what next

  6. Micro says:

    Can government just absolve the corporation already, what purpose do they actually serve other than constantly revealing how stupid most of them are?

    Perhaps the electoral body should revolt and demand they all resign and hold elections for a new council.

  7. aceboy says:

    LOL

    Sue away people. The COH has lost every single attempt to take matters to court. They will find themselves trying to argue a point that the Chief Justice has already ruled on in this case and will themselves be liable for costs on their silly counter suit.

  8. Carlton Smith says:

    Lmao!! Somebody tell these fools that trespassing is not a civil offence, and parking damages no-one.

    My lawd how these lawyers get paid for some silly things.

    Clamp my car, and I am suing for loss of earnings and costs.

    I am also removing the clamp and charging for labour.

    It will also cost a $250 fee upfront to get your clamp RELEASED.

    Counterclaim for trespassing, and I will use your clamp in court to show it was YOU who prevented me leaving therefore forcing me to commit the tresspass.

    Of course I will countersue your counterclaim for additional costs and teach you the lesson you need.

    C. of H. needs to get it together.

    Trying to claim poverty thus needing parking revenue but got tons of money for lawyers and frivilous court antics!

  9. serengeti says:

    So let’s make sure we understand this. The Courts in Bermuda have already ruled that the COH is acting illegally when it clamps vehicles. Yet it plans to continue clamping vehicles, on the basis it will be able to out-spend any individual who contests it in court. It has far more access to legal resources and funds for lawyers than an individual, and it will use that financial muscle to act illegally.

    Absolutely amazingly arrogant and brazen behavior.

  10. Questions says:

    Questions

    In order to counter claim, Does CoH need to have “No Trespassing” signs posted at each spot at the time of the offense?

    Does any know what the “No Trespassing” signs of CoH look like? Has anyone ever seen one?

    • Come Correct says:

      Yes, and also if someone trespasses on your property you have to send them a registered letter before you can do anything about it. Why would it be different for them?

  11. Ridiculous says:

    Okay COH, I will just stay away from Hamilton and shop on line if this is how you treat customers of the city.

  12. Christopher James says:

    Some enterprising lawyer should offer to do a class action suit.

  13. Everytime you hear... says:

    Sooooo does this mean we can park for as long as we want to then?

  14. clearasmud says:

    Now would be a good time for the Center for Justice to go back to court and ask the Chief Justice for a ruling on repaying the clamping fees that were collected. It would also be good if they could make it clear what the Corporation needs to do to make the clamping legally enforceable. People need to better understand what the next steps are as the corporations statement sounds like attempts to bully people into submission.

  15. Kim Smith says:

    Didn’t clamping come into force because of the ineffectiveness of the enforcement of parking tickets that are issued. There’s over $1 million owing for parking tickets I believe. I don’t want to get clamped but there’s no getting away from it if you park in the wrong place or for too long. I’ll bet it is a more effective deterrent than the parking tickets

    • Agree says:

      When you licence your car each year, you should have to pay off your outstanding tickets before being able to do so. Would bring in a lot of revenue I’m sure!!

      • hmmm says:

        Completely agree with this. If you can’t , then your car should be impounded too.

        • Christopher James says:

          But in order to achieve this, the computer geeks at Government might have to do a bit of work. It is shameful that this has still not been achieved.

      • mj says:

        +when you licence your car after paying insurance it includes a tax that allows you to operate on the roads. why are we being charged for parking is my beef??!~!~!! never happened years ago it is enough parking space in hamilton and also we pay far too much to licence insure and upgrade our vehicles we do not need to be stressed anymore with extra payments some people really just don’t get it penalize penalize is the only word they know! it is not necessary to have people slapping parking tickets on cars either, that is another guilty before innocent tactic that will not work, what offence has car committed…there can be parking attendents to direct people to available parking areas, it does not have to be penal!

  16. Blind Spot says:

    I would love to hear what the Centre for Justice thinks of the Corporation of Hamilton’s latest statement.

  17. Terry says:

    According to the law/s and Munipiciple (sp) acts the land does belong to them (COH).
    No need for no trespassing signs as they are there already ‘Pay or go somewhere else outside city limits.

    These guys are clowns and have been ruled so by the Courts.

    Starting next year there will be a Toll Booth at the Foot of the Lane Cavendish Road, Marsh Folly/Dutton, and Pitts Bay and Serpentine.

    Anyone feel like a rum and slap a lawyer (clamp) next week?

  18. M.T. Pockets says:

    As Questions mentioned above, you cannot charge someone for trespassing if there are no signs forbidding trespassing.

    This is just belligerent behavior on the part of the COH and plain bullying.

    I hope someone with the resources calls their bluff!

    Voters in Hamilton take notice.

  19. serengeti says:

    I agree clamping would be an effective deterrent; the problem is that when it clamps vehicles, the COH is acting illegally. And it knows it.

    Yet it is now saying that it will clamp vehicles anyway, on the basis that it can outspend anyone in hiring lawyers and going through court cases. The COH is going to use its legal and financial resources to act illegally.

  20. Look says:

    While I am not defending the CoH’s actions, if you simply don’t park illegally then they cannot clamp your vehicle or give you a ticket. It is that simple. Then this whole argument becomes null and void. Have respect for those that would like to use the parking space when you are legally done using it. Respect your neighbours.

    • serengeti says:

      “Look”, the enforcement of laws should be done legally as well. Otherwise we’re picking and choosing which laws get followed and which laws get ignored. Nobody, particularly an elected body, should deliberately be acting illegally. But that is exactly what COH is saying it will do.

      • Look says:

        I understand your point and I do not condone the CoH’s albeit illegal actions. However, I also know of some people that have run up about 200 parking/speeding tickets and not paid them. Police do not follow up or enforce the fact that certain people have blatant disregard for the law. I am simply saying that some people need to follow the law and legally park. Laws are formed to ensure the smooth operation of a society. The law is the law no matter if you are an elected body or a regular member of society.

        • mj says:

          need to know what is lawful and what is ordinance. what is legal and what is juris prudence? until we know exactly what LAW means we are all in limbo! a policy is not law, an ordinance is not law, and if a proceedure is to become law it must be gazetted also public have a right to respond, object or agree… no one person or entity can decide law! some things are necessary but not expedient! we are not properly informed so sometimes we as people make decisions based on popularity and not focus on reality..

  21. Like to know says:

    Wonder if they are going to have enough money for lawyers and repairing the structural damage to the theatre

    • Agree says:

      If everyone paid their unpaid parking tickets then there would be plenty to go around!

  22. Common Sense says:

    My understanding is that the Chief Justice ruled the Ordinance passed by the Coporation giving them authority to clamp vehicles was not published in the Official Government Gazette as it should have been. Surely the common sense solution to this issue is for the Corporation to pass the Ordinance and have it published in the Official Government Gazette. Is that too complicated?

    • Sad Bermudians says:

      That’s crazy when they’ve been clamping for years now?

  23. Everyone catch the bus and ferry service and ride their bikes for 3 weeks and see how much hurt they will feel, I’m in for that. Then they can start laying these fools off. See how much pocket hurt they’ll feel than

  24. Time Shall Tell says:

    Any counter claim they may file for will be thrown out right away on the fact that their initial act of clamping the vehicle has already deemed illegal. Only ground they can stand on is for a parking ticket but that falls under the traffic warden so….

    • Well... says:

      Exactly, I can see the CofH getting in very hot water with this one… They still have no legal right to clamp cars…and if a car is damaged in the process both the CofH and the security company as well as possibly the gard personally could be liable.

  25. Cardine Alice says:

    No- they can fine you. But it is illegal to clamp.

  26. Stunned says:

    the merchants of Hamilton need to rise up against this foolishness. the COH is deterring would-be shoppers. I am one of them. COH is bad for business, PERIOD.

  27. Watcher55 says:

    This statement is typical of the Corporations can’t touch us attitude, these people are completely incapable of running a very small city they don’t engineer anything and it seems like Hamiltons a big experiment and they are learning as they go. This bully boy attitude has to be stamped out!

  28. MB says:

    The statement is nonsensical- on one hand they speak of present parking issues and then suddenly they are talking about about well if you parked and got clamped and sue … … Troubling that our city is this CoH’s hands, and I am beginning to wonder about Fahy if he continues to allow this mockery … and poor management

  29. Cardine Alice says:

    They need better legal advice. (Their advice and case so far has been flawed.)

    A counterclaim would be thrown out. They and the opportunity to proceed on that motion at the time but chose to illegally clamp. No court will allow them to conveniently try that on. If legal costs are awarded it would be against them…again.

    And even if there was trespass. What of the damages – a few dollars, assuming they could prove how long the overpark was. Counterbalanced by their illegal act. They’d still be obliged to pay the funds back, then waste legal fees in counterclaiming. I’d counter sue them for damages incurred by me in the process.

    No self respecting court would countenance their bully boy tactics. It was extortion, now it’s intimidation…

  30. memorylo$$ says:

    Perhaps we should start talking boycott of COH shopping. St g and dockyard would love to stock up for Xmas for you. Just give them a few days to truck the merchandise out of town.
    Sorry to be rude,but these ………

  31. Rick Olson says:

    The CoH sued be sued by city taxpayers for wasting our money on the Black Mayors conference.

  32. Stuntman says:

    Technical officers at CoH are to blame for this mess – especially the Secretary. He is ultimately responsible for the ordinance that was improperly advertised and thus rendered invalid. Why is he not sanctioned? Another example of senior civil servants above scrutiny for poor performance.

  33. Hmmm says:

    Why aren’t that made up peoples group marching on the COH. Slilence is all we here.

  34. Anon Omus says:

    You can’t take someone to court for trespassing if the individual is not made aware that they are trespassing. This can be done through registered letter or signage. CoH doesn’t have a leg to stand on! What a joke!

  35. Inquiring minds says:

    Clearly another comment without any knowledge. The ordinance discussion is moot if you read the judgement” the government invalidated all ordinances without certain specific parameters. Even if it was published by CoH ift would have been invalidated by the amendment act2013.
    As to the comment the secretary in 2007 is not the same as the one today so not sure how you sanction someone today for someone else’s failure.
    It is a mess that needs sorting but most of the comments are non sensical and not helpful. Maybe CoH should just close their car parks until the issue is fixed and they can enforce non payments and timed out patrons. Let’s see where the nasty comments get you then eh?

    • Truth be Told says:

      Ahhh WHAT! eh?

    • Jadon says:

      We “the people “pay their wages. The close the parking lots the businesses in town will suffer and eventually wither away. Go ahead close them. Only hurting yourself. Bunch of selfish ********!

  36. Casi says:

    The CoH not only made a foul of themselves, but they also make this island look pathetic to the real world. Our newspapers are read in many countries. How can we allow this unprofessional behavior?

  37. rene says:

    I believe the corporation doesn’t own the land it belongs to the queen and her citizens. Her subjects can use queen land subject to the corporation s control. Hard to imagine how the corporation could allow trespassing in the absence of proper notice that no trespassing was allowed. Thats if the corporation could actually put up a no trespassing sign in the first place. The corporation only has a fiduciary contract with Hamilton not permission to block access to the queens citizens.

    • Inquiring minds says:

      The facts are that the land in question is owned by the corporation. It is not public land and not owned by the crown .
      The corporation uses the land to generate revenue (parking fees) otherwise it gets revenue from municipal rates . The more it earns in parking the less it needs to get from rates. So if the parking cannot be enforced ( in 2007 they were losing$300k a year) then close them and find another revenue stream or turn them into parkland and raise the rates , less hassle .
      Clearly most commenters seem to think they have a right to park on other peoples land for free or as long as they feel like without any penalty so they can use the other private car parks and see how that works for them..

      • Yea right ! says:

        If that is the case then they are not geared to run a parking lot !! What does that say about everything else they do? Bunch of nincomepoops !!!!!

  38. Know it All says:

    Clamp my car and I won’t bother with a lawsuit….file criminal charges for wilful damage, entrapment, kidnapping and bribery. Have a good day.

  39. Truth be Told says:

    The CoH is run by unqualified personal from the top to bottom in City Hall! This latest notion is prof positive of complete and absolute stupidity of G.O.! Do City Hall a solid favour and get out!

  40. Jadon says:

    Lol they have clamped my car 3 times. I have broke every single clamp off and left it in the parking lot. They don’t want to give out tickets because then the government gets the monies paid for a ticket. If they clamp it you have to pay COH. Just break it off with a few swift kicks lol !

  41. Puma says:

    Define your land coh……pubilc access has certain inaliable legal criteria….public access common area is by definition public…

  42. watchfuleyes says:

    COH did something illegal by clamping cars and now they are threatening us if we do take action against them?? The nerve!!! Do they own the site of the parking lot or do we the public own it?

  43. watchfuleyes says:

    Let’s boycott the City Hall parking lot people

  44. Dat Bie says:

    Holding your car there is a Deprivation of Liberty ( criminal offense ) … This can go south fast.