Enforcement fiche for United KingdomB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
Separate enforcement powers exist in relation to Northern Ireland where the principle enforcement authority is the Department of Enterprise Trade and Investment ("DETI") (http://www.detini.gov.uk/).
In this document the OFT, TSS and GEMA are together referred to as the "Enforcement Authorities".
Additional enforcing bodies of the BCRs:
"Powers" and "duties" to enforce:
Previously the OFT had a "duty" to enforce the Regulations but now it only has a power to do so. The OFT will use its "powers" where breaches of consumer protection law point to systemic failures in a market (so will take action against a number of firms in a market, rather than cases against individual firms), unless changing the behaviour of one firm would set a precedent or have other market-wide implications.
If more than one Authority in England, Scotland and Wales is contemplating bringing proceedings in any particular case, the OFT will direct which Authority is to bring the proceedings or may decide that the OFT alone should take action.
Websites for Enforcement Authorities:
|Who can file administrative complaints?||
Any person may make an administrative complaint about commercial practices to any of the Enforcement Authorities and request that body to investigate the complaint. The Enforcement Authorities are the only persons entitled to directly enforce the Regulations.
There is no private right of action under the Regulations against traders by consumers or businesses, although there are proposals, (set out in the draft Consumer Protection from Unfair Trading (Amendment) Regulations 2013), which would give consumers a direct right of action against a trader for misleading or aggressive practices pursuant to the CPRs. No equivalent right is proposed in respect of the BPRs.
|Do any specific procedural requirements apply to filing administrative complaints?||
No specific requirements or limitations apply to the filing of complaints.
However, the Enforcement Agencies must notify the OFT before taking court action against a trader under the CPRs. The Enforcement Authorities (or the GEMA as applicable) must also inform the business concerned if they intend to take action to stop a breach of the CPRs. This notice period must allow at least two weeks for the business to agree in writing to voluntarily stop its behaviour and comply with the law in future. If consumers' interests are so threatened that urgent action is required, the notice period may be shortened.
|Do the administrative authorities have an obligation to investigate the complaint?||
Enforcement Authorities are not under an obligation to investigate administrative complaints, but they can choose to do so.
The TSS and DETI have a "duty" to enforce the Regulations. Previously the OFT had a "duty" to enforce the Regulations, now it only has a power to do so. In exercising its rights the Enforcement Authorities must consider whether it can use "established means" (for example the Advertising Standards Authority's regimes on controlling misleading advertising).
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
No specific requirements or limitations apply to the provision of evidence to the competent authorities.
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
Where there has been a breach of the Regulations there are a range of available enforcement actions, some of which may be handled through a court.
|Who can start a court action?||
Only Enforcement Authorities can take action for breaches of the Regulations.
There is no private right of action against traders by businesses or consumers under the current law, however there are proposals set out in the draft Consumer Protection from Unfair Trading (Amendment) Regulations 2013, which would give consumers a direct right of action against a trader for misleading or aggressive practices under the CPRs. There are no equivalent proposals in relation to actions under the BPRs.
|Can court actions be initiated by competitors?||
There is no right of action for competitors. There are no current proposals to create this right under the draft Consumer Protection from Unfair Trading (Amendment) Regulations 2013 or otherwise.
|Can the case be handled through an accelerated procedure?||
The Regulations do not contain any provisions on accelerated procedures. Consequently, the general rules on court actions in the UK will apply.
It is possible for expedited interim injunctions to be obtained where the circumstances are sufficient to require such an action, however there are specific rules which must be satisfied before an injunction will be granted.
|Are there any specific requirements regarding the provision of evidence to the court?||
The general rules on evidence as laid down by statute and/or regulation will apply, and will vary depending on whether criminal or civil proceedings are instigated.
Those rules will apply to the investigatory powers of the Enforcement Authorities in gathering evidence. For example, Enforcement Authorities are empowered to make test purchases for goods and services and this may involve officers concealing their identity so as to ascertain what the defendant's practice is in respect of the ordinary customer (i.e. an elderly person). This deception will be permissible provided it is not unfair, however if the defendant is induced to commit an offence that he would not otherwise have committed due to the officer's behaviour then the resulting evidence may not be admissible.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
There a number of investigatory powers and civil remedies in relation to breaches of the Regulations.
The Enforcement Authorities may take civil actions for an enforcement order (i.e. including an injunction to prevent actions which are in breach of the Regulations).
The Regulations also give the Enforcement Authorities powers to:
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
Penalties for a criminal conviction under the Regulations are:
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
The OFT can issue warnings against a trader and refer complaints to self-regulatory bodies, who may choose to investigate applying their own codes of practice. There are a large number of self-regulatory bodies in the UK, a few examples are the Advertising Standards Authority (ASA) and Phonepay Plus (PPlus). The powers of those authorities and list of other authorities are detailed under IV (Other Types of Enforcement) below.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
A court will not hold an agreement void or unenforceable due to it being in breach of the Regulations. This is set out in Regulation 29 of each of the respective Regulations.
|How can consumers get redress/compensation (e.g. through collective actions)?||
The Regulations do not enable consumers or businesses to take action directly against traders, either as individuals or collectively so are unable to claim for compensation.
Consumers may be entitled to redress/compensation through other UK consumer legislation (e.g. the Sale of Goods Act, Unfair Contract Terms Act, or Consumer Protection (Distance Selling Regulations)).
|Can the administrative authorities or the courts require the publication of their decisions?||
Except where a case involves particularly sensitive matters, or the judge directs otherwise, UK courts are open to the public as are the judgments/decisions of the courts. Whether a decision is actually published will depend on the facts and/or importance of the case, and whether judge directs that the decision should be published. Even where a decision is not "published" it is generally possible to obtain a copy of a decision from the court where the decision was made. Enforcement Authorities do publish details of their findings and reports on their websites, but not necessarily specific decisions in relation to unfair practices.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
The OFT can issue warnings against a trader and refer complaints to self-regulatory bodies for investigation. There are a large number of self-regulatory enforcement systems in the UK which could deal with aspects of the UCP Directive. The OFT may refer claims to those self-regulatory bodies and may also work with trade associations. The OFT published guidance on its collaborative working approach, which is publicly available here on the following link: http://www.oft.gov.uk/shared_oft/consultations/oft1043con.pdf.
Advertising Standards Agency ("ASA"):
Phone Plus ("PPlus"):
Other examples of self-regulatory bodies include (this is not an exhaustive list): Civil Aviation Authority, Committee of Advertising Practice, Information Commissioner's Office (data protection (including direct marketing) regulator), Ofcom (regulator of media and communications), Ofgem (regulator of gas and electricity) and Ofwat (regulator of water and sewage).
Role of the Financial Conduct Authority in relation to regulated financial services firms:
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
There has been no mediating service, or ombudsman created as a result of the Regulations to specifically monitor and deal with unfair commercial practices. There are a number of ombudsman services which existed prior to the implementation of the Regulations and which cover a number of industries (e.g. financial services) who can investigate and mediate on consumer complaints. These may relate to unfair commercial practices and/or other commercial legislation, but only Enforcement Authorities are able to commence action (whether civil, criminal or administrative) for breach of the Regulations. The options of redress available for Ombudsman are usually designed to place the consumer in the position they would have been had the action complained of not occurred. Decisions of some ombudsmen can be final and binding (for example the Financial Services Ombudsman) provided they are accepted by the consumer, as they derive their powers from statute.