Business in Braintree and throughout the rest of the UK is to be conducted subject to the fact that there are commercial practices that will ALWAYS be considered unfair if they are one of those listed under Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008.
Broadly speaking, those ‘misleading practices’ (previously referred to in a blog post on 23rd October 2013) that are deemed to be ALWAYS unfair described under the Schedule 1 of the Regulations involve (i) suggesting that the product, service or trader can be relied on based on false claims as to commitment (and adherence) to codes of practice or as to third party endorsement; (ii) including in marketing material an invoice or similar document seeking payment giving the consumer the impression he has already ordered the goods or services when he has not (iii) promoting a product similar to one made by a particular so as deliberately to give the impression the product is made by that manufacturer when it is not; (iv) false claims about whether or for how long goods or services are available or about broader market conditions; (v) certain false claims as to after sales service; (vi) false claims about certain legal and status issues; (vii) certain false claims as to the benefits of the goods or services.
However, although, there is no formal need to apply the general misleading practice test to these practices, the remit of Schedule I of the Consumer Protection from Unfair Trading Regulations 2008 is not actually as far removed from this general test criteria as might first be imagined. Some of the examples in this Schedule (dealing with misleading practices) require that the information be ‘false’; while others refer to saying something which is ‘materially inaccurate’. The point is that this clearly calls for some form of evaluation as to falsity/material inaccuracy. This seems to mean that, in reality, even under this Schedule we will often need to ask a very similar question as is asked in the first part of the general test, i.e. as to the truthfulness or capacity for deception of the statement. This would mean that the real difference under the Schedule is that we do not need to establish the second part of the general test (i.e. that a transactional decision has resulted or is likely to result). Nevertheless, it might well be that the Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008 only means to cover statements where the lack of truth or deception is ‘material’ and, if so, such statements would be presumed to cause transactional decisions under the general test anyway.
The long and short of the above discussion is that there may not be much real difference between what needs to be established under the Schedule and under the general test. However, the real value of Schedule 1 of the Consumer Protection from Unfair Trading Regulations 2008 may be in more practical terms. The particular reason given for the use of the Annex is ‘legal certainty’. This is an important general principle of European Community Law; being about enabling all affected by the relevant law to know where they stand. It is clear that the chances of this are improved by an Annex of this type that singles out particular examples. This helps businesses to see what to avoid with minimum legal advice cost; it helps consumers and their advisers to spot what is unfair with a view to complaining to enforcers; it helps enforcers to spot quickly practices that are problematic and the ‘black and white’ example on the list makes it easier to persuade businesses that they are in breach.
However, there is an issue that undermines the certainty in this law to an extent. We said above that there is still a need under the Schedule to show a degree of falsity; yet nowhere is it made clear by reference to what benchmark. Is it (like under the general test) by the standards of the ‘average consumer’? Is it by reference to some other benchmark that might set a higher or lower standard? It is not clear. We must presume it is the ‘average consumer’ standard (as was discussed in an earlier blog post) since that is the general standard under the Directive/Regulations; but the lack of clarity is unfortunate; and could undermine the effectiveness and efficiency of protection by leading to arguments between enforcers and traders (and, ultimately between lawyers in the courts).
Contact Andrew Douglas Wills and Legal Services today via www.andrewdouglaswills.co.uk to see how we could help you with when business in Braintree and throughout Essex be always unfair.
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