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6th May 2014

Roll up, roll up – not just another set of ‘consumer rights’


6th May 2014

Roll up, roll up – not just another set of ‘consumer rights’

The Consumer Protection (Amendment) Regulations 2014 (Regulations) were laid before Parliament on 1 April 2014 and will come into force on 1 October 2014. The Regulations amend the existing Consumer Protection from Unfair Trading Regulations 2008 (CPUT) and for the first time will give consumers a new direct civil right of redress against businesses who conduct aggressive or misleading practices and this practice was a significant factor in the consumer’s decision to enter into a contract or make a payment.

CPUT currently can only be enforced by Trading Standards or the Competition and Markets Authority (formerly the OFT), leaving consumers relying on having to make a complaint via the Advertising Standards Agency (ASA), which cannot award damages, or on another legal basis such as misrepresentation, which can be difficult to establish.

The Regulations will also apply to misleading and aggressive demands for payment. For example, utility companies demanding payment from non-customers, private car-clamping companies, debt collection agencies, companies demanding payment for illegal downloads and agents acting for retailers demanding payment for “civil recovery” from alleged shoplifters.

There is a new scale of “tiered” remedies under the Regulations which are:

  • A right to unwind the contract and receive a full refund, if the goods or services have not been fully consumed and the consumer rejects them within 90 days. It is not yet clear how this right will apply in particular to digital products – will there be a duty on the consumer to delete digital content?
  • A right to a discount on the price paid if consumers decide to keep the remaining goods or services. This right continues even once the right to unwind has been lost and the level of discount will be set according to statutory bands.
  • An entitlement to seek damages in addition to the above remedies if the consumer can prove that the misleading and aggressive practice caused further economic loss, distress or inconvenience.

Businesses should prepare for increased exposure to consumer claims, which have the potential to be encouraged by competitors. Competitor backed claims relating to misleading advertising is relatively common in many EU countries. Another particular risk for businesses could be follow-on litigation after a finding by the ASA that a company has breached CPUT. Litigation in the aftermath of these new rights is likely to be complicated, with numerous references predicted by the courts to the European Court of Justice for guidance.

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