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Case detail

B a c k

Directive article Article 5 2. (a)
Article 6 1.
Article 6 1. (b)
Article 6 1. (c)
Article 6 2.
Annex I al1 12.
National ID [2013] EWCA Crim 818
Country United Kingdom Decision date 23/05/2013
Common name Decision type Court decision in appeal
Court Court of Appeal (Criminal Division) Plaintiff(s) The Queen
Court translation Court of Appeal (Criminal Division) Defendant(s) X Limited
Subject misleading commercial practices
Keywords doorstep sellingblack listelderlypersonal securitysecurity of consumer's familyvulnerable consumer

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Headnote

A "commercial practice" can cover a single incident and must not necessarily relate to a pattern of repeated behavior

Facts

The plaintiff appealed against the first instance ruling that the defendant had no case to answer in relation to four counts of engaging in unfair commercial practices contrary to the UK implementing legislation of the UCP Directive (Consumer Protection from Unfair Trading Regulation 2008 "CPRs").

The defendant sold domestic CCTV security systems (often by cold-calling). This case concerned the sale of a CCTV system and accessories to a 76 year old customer. The defendant's salesman provided the customer with misleading statistics about burglaries and also failed to install the equipment properly such that is was unfit for purpose.

Three different types of claims were made against the defendant, these being:

(1)  that the defendant had made a materially inaccurate claim concerning the risk to the personal security of a consumer if the consumer did not make a purchase (which is a banned commercial practice under the CPRs and UCP Directive);

(2) that the defendant had engaged in a commercial practice which was a "misleading action", by representing that the CCTV system would be an adequate security measure and then failing to fit it properly. 

(3) that the defendant had knowingly or recklessly engaged in a commercial practice in connection with the goods sold to a customer which was unfair and in contravention of the requirements of professional diligence. The defendant was accused of two counts of this offence.

At the court of first instance the defendant had successfully argued that the actions of an individual installer could not constitute a  "commercial practice" as more than one occurrence was required to prove a "practice". The first instance court had also found that there was no knowledge or recklessness by the defendant (even though the acts of the individual salesman were 'deplorable').

 

Legal issue

Does a "commercial practice" cover a single incident or does it relate to a pattern of repeated behavior?

Decision

In relation to the inaccurate claims , the court held that there was evidence that the data provided to the consumer was inaccurate.

The court further held that an unfair commercial practice could cover both a single incident and a pattern of repeated behaviour (and could even cover a situation where there is no commercial transaction at all). The court opined that the concept is concerned with systems and not individual transactions. Each case should be reviewed on the particular circumstances and on the appeal in questions there had been a "commercial practice" which was a misleading action.

Moreover, the court held that the plaintiff had established recklessness or knowledge on the part of the defendant's directors. The court accepted that single (or mutliple) failings in relation to just one customer may not be sufficient for these purposes and confirmed that all cases should be considered on the specific facts. However the court found that there was sufficient evidence in this case, given that the failures ran "at every stage of the process from top to bottom", so it did not matter that a particular "controlling mind" could not be identified.
 

  URL Decision Decision full text
EN http://www.bailii.org/ew/cases/EWCA/Crim/2013/818.html

Result

The appeal was allowed and remitted back to the courts to be retried.

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