Exclusive: Was YOUR vehicle clamped illegally?

Drivers who have paid fines after having their vehicles clamped could be in for a full refund.

In what appears to be a startling oversight, rules governing clamping had not been properly publicized when they were enacted in October, 2007.

This from the independent Centre for Justice, which believes that motorists ticketed in the city over the past six years could be entitled to get their money back.

The 2007 Clamping Ordinance, the Centre says, is not “legally valid”.

The Centre for Justice’s managing director, Venous Memari, told the Bermuda Sun: “In order for the 2007 Ordinance to be legally valid, it must have been published in the Official Gazette or the official newspaper for the Government Notices [at the time, it was the Bermuda Sun].

“Centre for Justice’s research shows that the 2007 Ordinance was not gazetted.

“As a result, the 2007 Ordinance has not been valid and any fines or penalties under that Ordinance were ultra vires and without lawful authority 

“The Municipalities Amendment Act 2013 invalidates any previous ordinance that was not gazetted within one month of its filing with the Cabinet.

“Any person who has paid a fine or penalty under the 2007 Ordinance is entitled to recover that fine from the Corporation of Hamilton through a claim from Magistrates’ Court as monies had and received or as a debt.

“Any such claim will be subject to the normal rules as to proof and evidence of payment and will be subject to the normal limitation period of 6 years for recovery of claims in debt.”

Research conducted by the Centre for Justice into the legality of the Municipalities (Pay and Display Vehicle Wheel Clamping) Ordinance 2007 revealed no evidence of the Ordinance in the Official Gazette or the Bermuda Sun.

News reports at the time in both the Royal Gazette and the Sun highlighted the new clamping regulations.

But it is understood that news stories do not constitute the appropriate kind of publication required by the legislation.

Edward Benevides, the city’s chief operating officer, said: “The COH gave public notice of the main terms of the Ordinance and would have supplied a full copy to anyone who asked. 

“The COH at the time considered that sufficient publication, the purpose of publication being to ensure that the citizen has knowledge of and if necessary access to the law as it applies to him, and that purpose having been served by what was done.”

The City of Hamilton recently introduced a raft of new parking and clamping rules under a new Ordinance, which would have taken over from the ‘invalid’ 2007 Ordinance. But it remains unclear when exactly these new rules will take effect as the proposed changes are currently being reviewed by Government.

Mayor Graeme Outerbridge told the Bermuda Sun: “The Clamping ordinance was in place before this Council was elected and we support our past Council’s action on this matter.

“We will look into any of the raised concerns and answer or address them as so required.”

The City of Hamilton provided the Sun with the copy of an email sent by the Corporation to Cabinet on October 10, 2007 requesting the Clamping Ordinance be published in the Official Gazette on October 12, 2007. 

The Bermuda Sun contacted the Cabinet Office to find out whether this email was acted on, but we did not receive a response by the time we went to press.

A spokesperson confirmed that the Ministry was looking into the matter.