Article 2 (b)
Article 2 (d)
|National ID|| EWCA Crim 539|
|Country||United Kingdom||Decision date||12/03/2012|
|Common name||Decision type||Court decision in appeal|
|Court||Court of Appeal, Criminal Division||Plaintiff(s)||Scottish and Southern Energy plc|
|Court translation||Court of Appeal, Criminal Division||Defendant(s)||The Crown (on the application of Surrey Trading Standards)|
|Keywords||doorstep selling, B2C, consumer's home|
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A non-trading entity such as a holding company can constitute a "trader" for the purpose of UCP Directive.
The plaintiff appealed against its conviction on two counts of engaging in a misleading commercial practice contrary to the UK implementing legislation of the UCP Directive (pursant to Reg. 9 of the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs")).
The plaintiff was a holding company with a significant number of subsidiaries engaged in the supply of energy. One of those was a wholly-owned subsidiary (L), a trading company responsible for the supply of electricity.
Under the relevant UK legislation, a licence was required for the supply of electricity. The plaintiff did not hold such a licence, the relevant licence being held by L. While the plaintiff did not directly supply electricity it was responsible for L's overall management and had oversight of its compliance with its regulatory obligations. It also supervised the training of L's workforce. The convictions arose out of the activities of one of L's employees (P), a door-to-door salesman who had called at homes in an area designated by the local authority as a "no cold-calling area".
The local authority prosecuted the plantiff and P. The plaintiff's case was that L should have been prosecuted rather than itself. It made a pre-trial submission to the court of first instance that it had no case to answer, not being the relevant "trader" for the purposes of the CPRs.
The first instance court rejected that submission, finding that a non-trading entity such as a holding company could be a "trader" for the purposes of the CPRs.
The plaintiff's primary submission in the appelate court was that the judge had erred in rejecting its submission of no case to answer.
Can a holding company be considered a "trader" for the purposes of the UCP provisions?
In making its decision the first instance court had referred to guidance issued by the UK Office of Fair Trading which said (i) that the question of whether a person was a trader had to be assessed on a case-by-case basis; and (ii) that there could be a "commercial practice" for the purpose of the CPRs even if the "trader" did not deal directly with a consumer. The appelate Court reaffirmed both of these views.
The court emphasised that there could be more than one "trader" in any situation for the purposes of the CPRs and the term "trader" extended to any person who, in relation to a commercial practice, was acting for purposes relating to his business. On the facts of this case the court held that the definition of trader was broad enough to cover "involvement in or supervision or control of training... as being directly connected with the promotion or sale or service of a product".
|URL Decision||Decision full text|
The appeal was dismissed and the conviction was upheld.
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