332 Product Liability under the Consumer Protection Act 1987

70 million ECU was designated as the lowest sum possible for such a global limit, there being no restriction on the power of a Member State to set a higher limit if they so chose. However, Article 16.1 is permissive rather than mandatory and hence there was no obligation on any Member State to adopt such a limit. The United Kingdom chose not to avail itself of this option and thus there is no global financial limit in the Consumer Protection Act 1987.

(c)â Exclusion of liability

Section 7 of the 1987 Act forbids any exclusion or limitation of liability under Part I against any person who has suffered damage caused wholly or partly by a defective product. This ban on any attempt to limit or exclude liability extends to any dependant or relative of an injured person and covers contract terms, notices and any other provision.

Q14 Do the temporal and financial limits imposed by the 1987 Act, combined with the inability to exclude liability, provide a balanced approach to the liability of producers under the 1987 Act?

9â Recommended reading

Giliker, P. ‘Strict liability for defective products: the ongoing debate’ (2003) Business Law Review 87

Griffiths, M. ‘Defectiveness in EC product liability’ (1987) Journal of Business Law 222 Griffiths, M. and Griffiths, I. Law for Purchasing and Supply (3rd edn, Pearson Education

Ltd, Harlow, 2002)

Howells, G. and Weatherill, S. Consumer Protection Law (2nd edn, Ashgate Publishing Ltd, Aldershot, 2005)

Miller, C.J. and Goldberg, R.S. Product Liability (2nd edn, Oxford University Press, 2004)

Newdick, C. ‘The development risk defence of the Consumer Protection Act 1987’ (1988) Cambridge Law Journal 455

Shears, P. ‘The EU Product Liability Directive: twenty years on’ (2007) Journal of Business Law 884

Miller and Goldberg’s Product Liability is a specialist text on this subject which is well worth reading. In addition, readers would benefit from reading the articles by Giliker and Shears to consider the way that the law on product liability has developed.

Part 5

Unfair Commercial Practices

Introduction

Part 5 concentrates on those aspects of the criminal law which provide the framework to the everyday trading environment. In practice, criminal law plays an important, but often under-valued, role in trading matters. The tendency is to concentrate on civil law controls and remedies for matters such as breaches of sale of goods and product liability without addressing the role that compliance with criminal law can play in preventing incidents arising. This part seeks to redress that balance somewhat.

Part 5 is divided into three chapters. The first deals with the policy that lies behind the repeal and amendment of so much of the pre-existing criminal trading law. Particular reference is made to the role that the European Union has played through the Unfair Commercial Practices Directive,1 which resulted in the passage of two sets of Regulations, the Consumer Protection from Unfair Trading Regulations 20082 and the Business Protection from Misleading Marketing Regulations 2008.3 The first chapter continues by looking at the offences created by the Regulations and the available defences thereto, most notably the due diligence defence.

Chapter 2 looks specifically at the provisions of the Consumer Protection from Unfair Trading Regulations 2008. The Regulations replace much of the previous criminal law as it applied to goods and services supplied to consumers and introduces new provisions, such as those relating to aggressive commercial practices under regulation 7. In addition to analysing the requirements governing unfair commercial practices, misleading statements, misleading omissions and aggressive commercial practices, Chapter 2 also analyses the list of thirtyone commercial practices contained in Schedule 1 to the Regulations which are automatically deemed to be unfair. Examples of situations that would breach the various controls are provided throughout the chapter.

1Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market.

2SI 2008/1277.â 3â SI 2008/1276.

334 Unfair commercial practices

The final chapter in this Part considers the provisions of the Business Protection from Misleading Marketing Regulations 2008. These Regulations provide criminal controls over misleading marketing practices as they impact on businesses and, as such, replace some of the pre-existing provisions that were repealed as a result of the passage of the Unfair Commercial Practices Directive. Further, regulation 5 provides for controls over comparative advertising and hence ensures continued compliance with Directive 2006/114/EC. These provisions replace those found previously in the Control of Misleading Advertisements Regulations 1988.4

4 SI 1998/915.