372 |
The Consumer Protection from Unfair Trading Regulations 2008 |
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Q11 Consider the impact of the factors contained in paragraphs (i) to (k) of |
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regulation 5(4) on the meaning of the phrase ‘misleading action’. |
6â Misleading omissions
Regulation 6 introduces the concept of a misleading omission, although in RÂ v Haesler,93 deliberately hiding information was held to be an offence contrary to section 1 of the Trade Descriptions Act 1968.94 Regulation 6(1) describes the scenarios that will give rise to a misleading omission, namely, that the commercial practice either omits or hides material information,95 or it provides material information in a manner which is unclear, unintelligible, ambiguous or untimely,96 or the commercial practice fails to identify its commercial intent unless it is already obvious from the context.97 In respect of any of these, there is also a requirement that the misleading omission causes or is likely to cause the average consumer to take a transactional decision that he would not otherwise have taken. However, whether information has been deliberately omitted, hidden, etc. must be considered in its factual context.98 The parameters of that context are laid out in regulation 6(2) as encompassing the features and circumstances of the practice, the limitations of the medium used to communicate it and, where that medium imposes limitations of time or space, what steps the trader has taken to make the information available to consumers. Thus, for example, the size of the product may restrict the amount of information that can be given, e.g., a chocolate bar wrapper provides far less space for information than a cereal box or the outer cardboard box containing flat-packed furniture. In a situation such as the chocolate bar, additional information relating to offers might be included either on a point-of-sale flyer or on a website belonging to the manufacturer. Similarly, a time limitation will be imposed when dealing with television advertisements that might only last fifteen or thirty seconds, with additional information being supplied separately via a website. By contrast, such information might have been readily available in a magazine advertisement for the same product. With either the chocolate bar or the television advertisement, a statement that terms and conditions apply will notify the prospective purchaser that more information is available and, typically, where it can be found.
93[1973] RTR 486.
94R v. Haesler [1973] RTR 486, in which a car was re-registered when being brought to the mainland from the Channel Islands. The statement ‘Ex Channel Islands’, which appeared in the registration document and indicated that the car had been previously registered elsewhere and so was older than its current registration suggested, was erased by the defendant car dealer before selling the vehicle. It was held that this amounted to a false trade description contrary to the Trade Descriptions Act 1968 s.1.
95CPUT Regulations 2008, reg. 6(1)(a) and (b), respectively.
96 Ibid. reg. 6(1)(c).â 97â Ibid. reg. 6(1)(d).
98Ibid. reg. 6(1) See OFT Guidance, above n. 8, para. 7.19 and Butterworths Trading and Consumer Law, above n. 7, Division 1A, para. 12.
373 |
6â Misleading omissions |
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In analysing and applying regulation 6(1), the concept of omitting mater- |
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ial information is relatively straight-forward as it simply requires that the |
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information is not included and there is no specified alternative way to access |
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it. By contrast, hiding material information is more complicated in that the |
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relevant information is present but the trader has deliberately attempted to |
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prevent the consumer from seeing it. Thus, it has been suggested that hid- |
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ing material information at the end of a long contract or in very small print |
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or, even, in a separate document would, depending on the context, consti- |
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tute hiding it contrary to regulation 6(1)(b).99 The requirement that material |
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information be provided in a manner that is clear, intelligible, unambiguous |
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and timely is an obvious demand for clarity whether it be in the way that |
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the information is drafted or in the way that it is presented. Thus, arguably, |
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it requires plain English as opposed to technical jargon, with unambiguous |
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wording. Further, it must be legible, which calls into play aspects of presen- |
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tation such as the size and colour of any lettering or diagram and the back- |
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ground colour of the paper on which it is displayed.100 The paragraph also |
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requires that the information be provided in a timely manner, which must |
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be before the consumer makes any transactional decision, otherwise the |
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requirement is redundant. |
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Regulation 6(1)(d) is slightly different in its approach in that it requires the |
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commercial intent of the practice to be identified unless that is obvious from |
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the context. The clear implication of this is that the fact that the trader is act- |
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ing with commercial intent is always material information. Certainly, previ- |
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ous legislation required traders to disclose their business status, with it being |
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an offence to withhold or secrete that information101 and hence this is not a |
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totally new approach. The commercial intent of the practice will often be obvi- |
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ous if, for example, it occurs in a shop or is included in a catalogue published |
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by a trader or appears on a website belonging to a trader. But it would be less |
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obvious if it is disguised as a market survey or as an editorial in a magazine or |
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a consumer item on the television or radio, or where the trader is deliberately |
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masquerading as a private individual with the intention of hiding his commer- |
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cial credentials.102 |
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The regulation 6(1) controls revolve around the omission of material infor- |
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mation, which is defined as being the information which the average consumer |
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needs, according to the context, to make an informed transactional deci- |
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sion103 and includes any information required as the result of a Community |
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99 |
See Butterworths Trading and Consumer Law, above n. 7, Division 1A, para. 12. |
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100 |
Ibid. |
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101 |
Business Advertisements (Disclosure) Order 1977, SI 1977/1918. See also Stainethorpe v. Bailey |
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[1980] RTR 7 for a decision under the Trade Descriptions Act 1968 on a related point. |
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102 |
This would be important in relation to claims under the Sale of Goods Act 1979, s.14, which |
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deals with satisfactory quality and fitness for purpose. As that section only applies where the |
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sale was in the course of a business, a trader could try to avoid all liability under that section by |
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pretending to be a private individual involved in a private sale. |
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103 |
CPUT Regulations 2008, reg. 6(3)(a). |
374 |
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The Consumer Protection from Unfair Trading Regulations 2008 |
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obligation.104 What information is required will largely depend on the circum- |
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stances of the sale and the product in question. It is reasonable to assume that, |
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in most situations, the price of the product will constitute material information. |
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Further, if the rationale behind the material information is to allow the con- |
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sumer to make an informed transactional decision, then clearly it must be pro- |
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vided before the decision is made and, as such, must be provided in a timely |
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manner.105 |
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This definition of what constitutes material information is extended con- |
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siderably when the commercial practice in question involves an invitation to |
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purchase.106 When that is the case, certain specified information will always |
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be deemed to be material unless it is already apparent from the context and it |
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must be provided in addition to any information already required by virtue of |
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regulation 6(3) as discussed above. The required material information includes |
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the main characteristics of the product to the extent appropriate to the product |
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and to the medium being used to communicate the invitation to purchase. For |
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a simple product that requires no additional information as to its characteris- |
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tics and when the price is included with the product, it may be that there is no |
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other material information needed.107 This may vary depending on whether the |
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consumer is purchasing in a shop with the opportunity to see and perhaps han- |
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dle the product prior to sale, or is purchasing products that are advertised in a |
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magazine or on a website when additional information might be needed. |
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The identity of the trader, including his trading name and the name of |
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any trader on whose behalf he is trading, together with their geographical |
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addresses,108 is classed as material information. This is important as it allows the |
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consumer to be certain of the identity of the person responsible for the com- |
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mercial practice and how to contact them should the need arise. The geograph- |
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ical address is crucial in this regard as, of course, merely knowing a website |
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address does not, of itself, allow the consumer to contact the trader. While the |
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suffix at the end of a web address may identify the country in which the trader |
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is based, it does not do any more than that. If a consumer is to be able to enforce |
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their legal rights, they must be able to identify the location of the trader and the |
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jurisdiction to which they are subject. |
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104 |
Ibid. reg. 6(3)(b). For a useful chart listing those provisions in English law that give effect to |
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relevant EU Directives, see Butterworths Trading and Consumer Law, above n. 7, Division 1A, |
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para. 12. |
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105 |
See, e.g., OFT Guidance, above n. 8, para. 7.17, which gives as an example the need for |
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restaurants to provide details of the prices of food and drink to consumers before they order. |
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106 |
An invitation to purchase is defined in reg. 2(1) as a ‘commercial communication that |
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includes both the characteristics of the product and the price in a way appropriate to that |
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communication in such a way as to permit the consumer to make a purchase’. |
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107 |
See OFT Guidance, above n. 8, para. 7.34, which gives an example of a pencil being sold in a |
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shop. The colour and thickness of the lead are apparent from looking at it and the price is given. |
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The identity of the trader is obvious and there are no special requirements relating to delivery or |
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complaint handling. |
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108 |
CPUT Regulations 2008, reg. 6(4)(b) and (c), respectively. |
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375 |
7â Aggressive commercial practices |
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The price of the goods is also material information. Hence, there is a stipu- |
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lation that either the price (including taxes) or, alternatively, the method by |
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which the price can reasonably be calculated must be provided.109 This would |
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include price lists on display in cafes, restaurants, etc., but would also include |
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unit pricing on shelf edge tickets that allow consumers to calculate the price |
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for goods that they wish to buy. Where appropriate, material information will |
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also include all additional freight, delivery or postal charges and, where that |
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sum cannot be calculated beforehand, a statement that such charges will be |
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payable.110 |
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The trader is expected to act within the confines of, and in the manner to |
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be expected by the demands of professional diligence. Where matters relat- |
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ing to arrangements for payment, delivery, performance and complaint hand- |
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ling depart from the normal requirements of professional diligence, any |
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information about them will be deemed to be material for the purposes of |
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regulation 6, with any withholding of relevant information being a material |
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omission. Finally, when dealing with products and transactions which attract |
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a right of cancellation, the existence of that right is material information for |
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this purpose and so must be disclosed if the trader is to avoid liability under |
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regulation |
6. |
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Non-compliance with regulation 6 may lead to enforcement bodies pro- |
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viding advice and guidance to encourage compliance but can also lead to |
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criminal prosecution for a strict liability offence under regulation 10 for |
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summary offences or offences on indictment. It can also give rise to enforce- |
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ment action under the Enterprise Act 2002, Part 8, with enforcement bod- |
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ies seeking undertakings, enforcement orders and interim enforcement |
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orders.111 |
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Q12 Consider what constitutes ‘material information’ for the purposes of |
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regulation 6 and the ways in which it can be withheld from a prospective |
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purchaser. |
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7â Aggressive commercial practices
A well-known, though hopefully not common, problem is the use by some traders of aggressive commercial practices in order to force a consumer to buy goods or services, typically against their will. In this regard, doorstep selling has always attracted particular comment and criticism for practices such as refusing to leave a consumer’s house until the consumer has signed a contract for the goods being sold, even if this involved the trader refusing to leave for several hours or even until late at night. It was against this background that cancellation
109 |
Ibid. reg. 6(4)(d).â 110â Ibid. reg. 6(4)(e). |
111 |
Enforcement strategies and processes are dealt with in Part 5 Chapter 1. |
376 The Consumer Protection from Unfair Trading Regulations 2008
rights were introduced for consumers in respect of contracts signed away from business premises112 so as to allow the consumer to think again, both in the cold light of day and when the oppressive influence of the salesman had been removed.
The definition of aggressive practices under regulation 7 goes far wider than merely suggesting a threat of physical violence and includes practices that might not, at first glance, be classed as aggressive within the traditional meaning of the word. Regulation 7(1) defines an aggressive commercial practice as one which, in its factual context and taking account of all its features and circumstances, significantly impairs or is likely to significantly impair the freedom of choice of the average consumer or his conduct in relation to the product concerned through the use of harassment, coercion or undue influence. It should be noted that the impairment of freedom of choice or of conduct must be significant.113 It follows that if the impact is only slight there will not be a breach of regulation 7. As with the other controlled practices, there is no requirement that a consumer has actually been affected, merely the likelihood that the commercial practice in question would have an impact on a consumer. The impact must be caused by harassment, coercion or undue influence. Neither harassment not coercion are defined in the regulation, although coercion is stated to include the use of physical force and the OFT expressly stated that the terms ‘harassment’ and ‘coercion’ include both physical and non-physical pressure, including psychological pressure.114 In the absence of definitions, the words must be taken to have their usual meaning, with the courts having the opportunity to refine the terms in context.
Undue influence is defined as meaning ‘exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed choice’.115 This covers the situation where the consumer does not have an equality of bargaining power because of a level of influence achieved and used by the trader. This would include, for example, the repairer of goods who has done additional work without the agreement of the consumer but who refuses to return the goods to the consumer until the latter has paid for the additional unauthorised repairs.116 Because the trader has possession of the goods, he can use that position of power to wrongfully influence the behaviour of the consumer.117 Similarly, a creditor can misuse his influence over a debtor
112
113
114
116
117â
See Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008, SI 2008/1816, which replaced the previous provisions under the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987, SI 1987/2117.
The example given above of a trader staying in a consumer’s home until he feels compelled to sign a contract for foods or services would be classed as a significant impairment, see OFT Guidance, above n. 8, para. 8.6.
Ibid. para. 8.3.â 115â CPUT Regulations 2008, reg. 7(3)(b). OFT Guidance, above n. 8, para. 8.4.
Ibid.
377 7â Aggressive commercial practices
to pressure the debtor to take out a further loan118 by, for example, encouraging the debtor to take out a new consolidation loan to cover his existing debts and to get additional usable credit.
When analysing whether any given activity is harassment, coercion or undue influence within the meaning of regulation 7, the commercial practice must be considered in the context of the facts and of all its features and circumstances.119 Regulation 7(2) outlines what those factors include. Thus, consideration must be given to the timing, location, nature or persistence of the practices.120 Timing would include, for example, late night telephone calls or visits to the consumer’s house, while location would include calling on the consumer at his place of work or isolating the consumer at a location which it is impossible for him to leave until he signs a contract.121 Timing might also relate to surrounding circumstances, such as immediately following a bereavement or redundancy when the consumer may be vulnerable, and location would include approaches made in a hospital.122 The nature of the commercial practice would include the way and medium by which the consumer is approached, which includes approaching the consumer’s employer or a member of his family, while persistence would clearly encompass repeated visits, phone calls, texts or emails or other methods of contact.123
As might be expected, the use of threatening or abusive language or behaviour124 will be considered when assessing whether coercion, harassment or undue influence exists. Whether such language or behaviour has occurred will be a question of fact for the court to determine.
The third factor to be weighed in the balance is whether the trader has exploited a specific misfortune or circumstance of such gravity as might affect the judgement of the consumer when deciding upon the proposed transaction.125 The relevant misfortune or circumstance must be known to the trader who has used it to influence the decision made by the consumer about the product. This clearly requires the trader to act knowingly. Examples of exploiting a
118â Ibid.
119 CPUT Regulations 2008, reg. 7(1).â 120â Ibid. reg. 7(2)(a).
121The OFT gives the example of a holiday club presentation being made at a distant location with no opportunity for return transport until the consumer signs a contract, see OFT Guidance, above n. 8, para. 8.11. Containing a consumer in a location and restricting his ability to leave might also constitute false imprisonment for which the trader could be held liable to pay damages.
122Butterworths Trading and Consumer Law, above n. 7, Division 1A, para. 13. An example of an approach in a hospital would include, e.g., an accident claims company signing up injured and traumatised patients in the casualty department of a hospital. While there is no objection to such companies advertising their services in a hospital casualty department, representatives speaking to and signing up clients might constitute undue influence. The same would be true of funeral directors approaching recently bereaved families while they are still in the hospital following the patient’s death.
123Such persistence would constitute harassment.
124 CPUT Regulations 2008, reg. 7(2)(b).â 125â Ibid. reg. 7(2)(c).
378 |
The Consumer Protection from Unfair Trading Regulations 2008 |
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misfortune would include exploiting a recently bereaved family,126 or someone |
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who has been the victim of a burglary127 or a violent crime.128 |
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The fourth factor to be considered is any onerous or disproportionate non- |
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contractual barrier imposed by the trader when the consumer wants to exercise |
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his rights under the contract.129 This would include termination rights and the |
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right to switch to another trader, both of which are expressly included in regu- |
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lation 7(2)(d) but would also include such things as the enforcement of rights |
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relating to faulty goods and the exercise of cancellation rights. Non-contractual |
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barriers would include requiring the consumer to return goods to a place some |
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distance from their residence, as this would involve postal charges or travelling |
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costs, either of which might be significant.130 A gloss on this practice would be a |
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demand that the consumer return the goods in person.131 |
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The final factor referred to in regulation 7(2) is any threat to take any action |
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which cannot legally be taken. This would include threats to take legal action to |
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enforce a contract or recover a debt where no right of action exists, e.g., a threat |
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by a debt collector to use bailiffs to recover money for unenforceable debts.132 In |
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a time of recession when personal debts are running high133 and redundancy134 |
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may bring about serious financial pressures on consumers, the chances that a |
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consumer may fall behind with debt repayments will rise, with a consequent |
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upturn in the use of debt collectors and court actions. While enforcement of |
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legitimate debts is to be expected, the attempted recovery of unenforceable |
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126 |
Examples of such exploitation would include the example given by the OFT of staff in a |
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funeral parlour persuading the relatives of a recently deceased person to avoid the potential |
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for family shame by buying a more expensive coffin than they might otherwise have done, see |
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OFT Guidance, above n. 8, para. 8.11. A similar example might involve pressure by a funeral |
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director to buy the best coffin available because the deceased would deserve the best. Another |
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unfair commercial practice that might arise out of bereavement would be the practice by |
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some estate agents of scouring the bereavement notices in local papers and then visiting the |
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bereaved partner or delivering marketing material offering to buy their property, typically at an |
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undervalue, so that the bereaved person will not have the worry and stress of maintaining the |
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property and paying the bills. |
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127 |
Such exploitation might involve a company selling burglar alarms which contacts the victims |
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of recent burglaries, exploiting their shock and vulnerability at having their home invaded, |
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and perhaps ransacked, by a stranger and who might be seeking therefore to improve their |
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household security. |
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128 |
For other examples see Butterworths Trading and Consumer Law, above n. 7, Division 1A, |
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para.Â13. |
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129 |
CPUT Regulations 2008, reg. 7(2)(d). |
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130 |
This would be particularly relevant if the item is either very bulky or very heavy. |
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131 |
See Butterworths Trading and Consumer Law, above n. 7, Division 1A, para. 13. |
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132 |
See OFT Guidance, above n. 8, para. 8.11. |
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133 |
In July 2011, UK personal debt stood at £1,452 billion with consumer credit lending standing |
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at £210 billion. Household debt was £8,076 (excluding mortgage) while every individual in the |
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United Kingdom owed £55,862 (including mortgage). A house was being repossessed every 14 |
|
|
minutes. See www.creditaction.org/helpful-resources/debt-statistics.html. |
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134 |
In July 2011, 1,271 people were being made redundant every day. One person was being |
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declared insolvent or bankrupt every 4.36 minutes. See www.creditaction.org/helpful- |
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resources/debt-statistics.html. |