CPUT refuses to stay PUT – a review of latest developments.

1. CPUT refuses to stay PUT – a review of latest developments. FRED PHILPOTT JONATHAN GOULDING GOUGH SQUARE CHAMBERS

2. The prohibited practices There are 5 CPUT prohibited practices • Contravention of the requirements of professional diligence • Misleading actions • Misleading omissions • Aggressive commercial practices • Automatically unfair practices (schedule1)

3. Key concepts • Commercial Practice • Trader • The Average Consumer • Transactional Decision • Professional Diligence

4. Interesting developments as we all become familiar with them Good steer given by some cases from the higher courts in 2011/12 Civil cases OFT v. Purely Creative and others [2011] CTLC 45 Purely Creative .v. OFT [2012] CTLC 40 Purely Creative Ltd and others – ECJ case C-428/11 OFT v. Ashbourne Management Services Limited [2011] CTLC 237 Criminal cases R (Surrey Trading Standards) v. Scottish and Southern Energy [2012] CTLC1

5. OFT v. Purely Creative • Purposive interpretation “..must be construed as far as possible so as to implement the purposes and provisions of the directive” (at para 40) • Average Consumer - as defined in Reg 2(1) “reflects the commonsense proposition that the UCPD exists to protect from being misled consumers who take reasonable care of themselves, rather than the ignorant, the careless or the overhasty consumer” (at para 62) • Transactional Decision – as defined in Reg 2(1) • “any decision with an economic consequence..” (at para 68), but is it? • Causes or likely to cause • “whether, but for the relevant misleading act or omission…the average consumer would have made a different decision from that made” (para 71)

6. OFT v. Ashbourne MSL • Early UK case considering professional dligence • Gym providers standard terms unfair and would be expected not to include such unfair terms in agreements recommended to consumers. • “In recommending the use of these agreements which are unfair… and in seeking payment of subscriptions under them … the defendants … have not acted in accordance with the standard commensurate with honest market practice and have caused consumers to take transactional decisions they would not otherwise have taken” (para 227)

7. The Scottish and Southern Energy Case • Meaning of “Trader” and “Commercial practice” • SSE PLC was convicted in the Crown Court of 2 counts of sales agents being trained to use misleading sales scripts in doorstep selling of energy. • Appeal dismissed – in construing “trader” together with “commercial practice” – the court noted the wide definition of both in the regulations.

8. Commercial Practice • Important issue – can a one off transaction amount to a “commercial practice” • R v.Christopher Steele. Snaresbrook Crown Court. Judge dismisses case because it fell outside scope of “commercial practice” – involved a single building contract (April 2012) • R v X Limited [2013] CTLC 145. A “commercial practice can be derived from an isolated incident, but whether or not it does will depend on the facts of the particular case.”

9. Recent CJEU cases • Citroen Belux v Fedaralie voor verzekerings – en Financiele Tussenpersonen (FvF ) – July 2013 Case C-265 -12 • A national restriction on combined offers did not contravene the maximum harmonisation of a domestic measure being more restrictive than the UCPD permitted where at least one component of the offer was a financial service.

10. Recent CJEU cases • CHS Tour Services GmbH v. Team4 Travel GmbH Sept 2013 C-435/11 • There is no automatic infringement of the requirements of professional diligence if a commercial practice is categorised as a misleading commercial practice under Article 6 UCPD ( misleading actions).

11. Recent CJEU cases • Trento Svilupposrl , CentraleAdriatica Soc. Coop. arl v AutoritaGurantedeliaConcorrenza e de MercatoDec 2013 Case C-281/12 • Important transactional decision case. • The CJEU stated that the concept of ‘transactional decision’ is broadly defined in the directive as ‘any decision taken by a consumer concerning whether, how and on what terms to purchase’ • It decided that the concept covered not only the decision whether or not to purchase a product, but also the decision directly related to that decision, in particular the decision to enter into the shop. • The question of whether the decision had to be one with ‘economic consequence ‘ has been answered emphatically with a NO !!

12. Recent CJEU cases • 4Finance UAB v Valstybiere - April 2014 Case C-515/12 • Banned practice schedule 1 para 14 “establishing, operating or promoting a pyramid promotional scheme” • The case decided that pyramid promotional schemes constitutes an unfair commercial practice only when such a scheme requires the consumer to give financial consideration, regardless of its amount, for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than the sale or consumption of products.

13. Civil Redress for CPUT • Consumer Protection (Amendment ) Regulations 2014 amends CPUT and new Part 4A gives consumers a right to civil redress from 1st October 2014 • Significant development implementing the Law Commission recommendations. • Consumers will have the right to bring a civil action against a trader for a commercial practice that is: • 1) a misleading action • 2) aggressive • Consumers will have a right to damages if they incur financial loss or alarm, distress or physical inconvenience which would not have been incurred in the absence of the prohibited practice.

14. TS Activity in CPUT • Only have to look at TS Today each month to see that big cases are being brought to court with many instances of systemmic unfair trading • Fines and penalties can be high • Confiscation a potentially powerful tool as well • Recent case of R v Scott King [2014] EWCA Crim 621 good example of traders breaching CPUT at their peril. Trader sold cars and falsely claimed that he was acting privately ( Banned paractice sched 1 para 22). 58 cars involved. Court of Appeal held £109,000 confiscation order representing the turnover of the business was not disproportionate.