Barker Gotelee

The Unfair Commercial Practices Directives became law in the UK on 12th April 2008 and the subsequent English regulations on 26th May.

The Act represents something more like a code than the previous piecemeal legislation and lists prohibited unfair practices (31 in total).

Specifically outlawed practices include scare tactics such as making an inaccurate claim regarding the risk a consumer faces unless they buy the product on offer, specifically advertising to children, falsely claiming that a product falls under an approval endorsement or authorisation, overstaying your welcome in doorstep sales, pestering or using guilt to make sales.   At present, enforcement of the Act is largely in the hands of local government and criminal in nature but there should be further legislation opening up civil sanctions offering a redress to the affected consumer.

There has also been further legislation coming into effect this month widening the ambit of cancellation rights for a consumer where a contract is concluded away from the place of business of the seller.   The legislation now also includes solicited visits to get round the problem of sales people obtaining the consumer’s agreement to a home visit in advance and thereby avoiding the legislation.   The cancellation period is 7 days from receipt of the detailed notice of cancellation that the seller has to give and the provisions for unwinding the deal and associated Credit Agreement, if one is taken, are again detailed.

All this underlines the widening chasm between the Victorian influenced common law of “buyer beware” that still applies to transactions between businesses and the privileged position of consumers.    For most of us now the mindset is that of the consumer.  

There is a danger in this, however,  as we have certainly experienced an increase in requests for assistance from small businesses that have been exploited by practices that any normal person would consider reprehensible let alone unfair.

For the most part, these cases have involved Finance Hire Agreements not regulated by the Consumer Credit Act and where the common law still refuses to accept the salesman who comes pre-armed with his chosen finance agreement, no doubt earning a commission, as agent for the Finance Company. This gives the salesman licence to be dishonest in his or her sales practice without risking the Finance Hire Agreement being impugned by a Court.  

One wonders whether it is sensible to have wholly different systems of law in relation to the same person according to whether he purchases his telephone system, car or computer at home, or for the office, and whether it is really possible for him to change his mindset to one of distrust when in the office.

Dermott Thomas

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