Practice Notes on Consumer Law
eBook - ePub

Practice Notes on Consumer Law

Peter Walker, Peter Walker

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eBook - ePub

Practice Notes on Consumer Law

Peter Walker, Peter Walker

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This fourth edition of Practice Notes on Consumer Law contains much useful information for those dealing with problems in consumer law, from either the consumer or supplier perspective. These notes include guidance on common problems, checklists, specimen letters and precedents to help you through the common problems in this area of law, which has recently changed so rapidly.

Consumer Law covers contract, tort, consumer credit, and consumer safety. Each of these areas has seen huge changes in the ways business is done, largely as a result of changing technology, enabling people to buy goods and services in new ways, including via the internet. That technology can, in itself, be the cause of difficulties, where it goes wrong, or where suppliers have inadequate systems to deal with customer. Both suppliers and consumers need advice on how to deal with the problems that arise.

This fourth edition has, therefore, been updated to include:

  • developments such as the Unfair Terms in Consumer Contracts Regulations 1999, and the Contracts (Rights of Third Parties) Act 1999
  • changes in consumer safety law, particularly the regulations concerning general product safety
  • changes in civil procedure as a result of the Woolf Reforms - the book includes procedural notes relating to litigation
  • the influence of the European Union, particularly consumer protection for distance selling contracts.

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1 Basic Information

1.1 Consumers and suppliers

Although consumers need protection from the effects of defective products or unethical business practices, the customer is not always right. Anyone who works in customer relations’ departments of the larger companies can tell true stories of how people have tried to cover up their own incompetence by making false claims that products are defective. Various statutes have recognised that suppliers need protection, too, by providing them with defences. This book is therefore written for suppliers, consumers and their respective advisers.

1.2 Definition of ‘consumer’

Although, in general, a definition of ‘consumer’ could logically be related both to the status of the person buying the goods and services and the purpose for which they are to be used, in practice the various statutes have sometimes taken different approaches. For example, s 12(1) of the Unfair Contract Terms Act 1977 defines ‘dealing as a consumer’ by reference to three tests:
  1. the consumer neither makes the contract in the course of a business nor holds himself out as doing so; and
  2. the other party does make the contract in the course of a business; and
  3. in the case of the law of sale of goods or hire purchase or under s 7 of the Unfair Contract Terms Act 1977, the goods are of a type ordinarily supplied for private use or consumption.
However, s 12(2) excludes from this definition those who buy goods on a sale by auction or under a competitive tender.
The Consumer Credit Act 1974 defines a consumer credit agreement by reference, among other things, to an individual as a debtor (s 8(1)).
This means that sole traders and partnerships are consumers for the purposes of the Act.
For the purposes of the Unfair Terms in Consumer Contract Regulations 1999, ‘a consumer’ means ‘any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession’ (reg 3.1) (para 2.1). This is derived from Art 2 of Council Directive (93/13/EC) of 15 April 1993, which adds ‘trade’ and ‘profession’ to ‘business’.
It is therefore necessary to consider the relevant provisions of any of the statutes claiming to protect consumers to discover exactly who is being protected.

1.3 Sources – statutes

Laws relating to consumer protection are found in many statutes, of which the main ones are:
  • Hire Purchase Act 1964;
  • Consumer Credit Act 1974;
  • Consumer Protection Act 1987;
  • Factors Act 1889;
  • Misrepresentation Act 1967;
  • Road Traffic Act 1988;
  • Sale of Goods Act 1979;
  • Supply of Goods and Services Act 1982;
  • Supply of Goods (Implied Terms) Act 1973;
  • Torts (Interference with Goods) Act 1977;
  • Trade Descriptions Act 1968;
  • Unfair Contract Terms Act 1977;
  • Food Standards Act 1999;
  • Contracts (Rights of Third Parties) Act 1999.

1.4 Statutory instruments and the EU influence

One important European Union directive (1993/13/EC of 15 April 1993 – Unfair Terms in Consumer Contracts) is included in the Unfair Terms in Consumer Contracts Regulations 1999 SI 1999/2083.
There are also the Consumer Protection (Cancellation of Contracts Concluded away from Business) Regulations 1987 which enforce Council Directive (85/577/EC).
The Directive Consumer Protection for Distance Selling Contracts (97/7/EC of 20 May 2000) will result in regulations whereby businesses selling goods or services, for example, advertising with order forms, catalogues, by telephone or email, will have to reveal certain information about themselves and their products. This directive is a reminder that shopping via the Internet is growing and will introduce new legal problems.

2 Interviewing the Consumer-Client – Sale of Goods and Services

2.1 Introduction

When the consumer-client seeks advice, it is essential to obtain some preliminary information before any adviser goes into detail. The points at this stage which should be noted are:
  1. name and address of potential client;
  2. brief details of the nature of the problem;
  3. the amount likely to be claimed;
  4. objective of the potential client;
  5. whether or not legal aid is required.
The purpose of points (b) and (c) is to ascertain if there is a solution in law to the consumer’s problem, or if it is economic to pursue a claim. It is, for example, not worth going to court over a defective £4.95 calculator, unless there is other damage.
That is why it is important to consider the objectives of the consumer (point (d)) who, in some instances, may want to pursue a small claim in order ‘to teach them a lesson’. The interviewer will have to point out, before the courts do, under the Civil Practice Rules (CPR) (r 1(2)(c)), the costs of time, money and effort that might be involved.This aspect of the interview will, therefore, have to be steered by the interviewer, whose purpose will be merely to establish quickly whether or not there is a prima facie case to proceed further. The consumer must not at this point be allowed to go into the full story, which will have to be taken down later in the context of the detailed questionnaire. Because many problems will be small or not worth following up, this aspect of the client interview must be brief.
Once a case appears to be established, the question of cost must be faced. The interviewer must also find out whether or not the consumer is likely to require legal aid (point (e) above).
If a decision is made to go ahead, then the interviewer must question the consumer in more detail with the aid of the questionnaire.

2.2 Consumers’ questionnaire

The right hand side of the questionnaire must contain a column for notes to assist in the follow-up. These will act as a reminder to obtain missing information (such as letters, faxes or emails from the supplier which the consumer has omitted to bring to the interview):
Client’s name, date
Client’s address
Brief summary of problem
Name and address of the supplier of the goods and services
Address of the supplier’s registered office (if a company)
Date on which goods or services were ordered
Details of any advertising that may have induced the client to enter into the contract (NB: it may be necessary to check the supplier’s website).
Details of any relevant promises made at the time of ordering the goods and services
Date or dates on which the goods or services were due to be supplied
Date or dates on which goods or services were supplied
Place at which the goods or services were, or were due to be, supplied
Details of any written agreement (including a contract governed by the Consumer Credit Act 1974)
Is the consumer being sued for payment and do they wish to counterclaim for the loss and damage out of the quality of the goods and services? YES/NO
Details of any receipts or written guarantees
Name and address of the hirer or granter of credit if the goods were supplied under a contract governed by the Consumer Credit Act 1974
Details of the goods or services supplied or ordered
Details of what went wrong
Details of any instruction book (if relevant)
Chronology of complaints made by customer (including names of representatives of the supplier, if known, as well as other bodies such as a trade association)
Details of correspondence with the supplier (if any) or other relevant people (for example, the hirer under an HP agreement)
Details of any damage or injury to property or to people as the result of the problem with the goods or services
Names and addresses of any injured persons other than the client
Names and addresses of any witnesses who may be relevant
Name and address of the supplier’s liability insurers
Note of instructions from the client
Is the client covered by legal protection insurance? YES/NO
If YES, obtain the details
Legally aided? YES/NO
If YES, assist with completion of legal aid Green Form
If NO, obtain payment on account of costs

2.3 Completing the questionnaire

While the interviewer is completing the questionnaire the client should not, in general, be asked leading questions prompting the answer ‘yes’ or ‘no’. These may lead to answers which are too specific and the client may then omit to mention important points. Many a case has been lost because, under cross examination, a further fact destroying a carefully prepared brief has been admitted.
For that reason, the final question should be something like ‘What other relevant points do you have to tell me?’. This can often prompt the client to reveal other, perhaps essential, information. The interviewer will therefore not necessarily complete the form in the order that it is laid out, because the consumer will add to his or her story.
Whether or not the consumer is clear about the facts, he or she may be reticent when it comes to giving instructions. The reason is that client will expect the solicitor to give advice as to what to do, whereas the solicitor can be waiting for instructions from the client. This will happen even if the law and the various courses of action have been explained. That is why it is important to discover the client’s motives from the outset, as mentioned in para 2.1 above.

2.4 Follow-up (subject to the client’s instructions)

  1. Note time taken at interview and completion of questionnaire.
  2. Send a statement to the client for approval.
  3. Contact supplier (and creditor under a consumer credit agreement). At this stage a decision will have to be made as to whether or not this will be a formal letter before action (see para 2.5 below).
  4. Obtain missing information (for example, letters or receipts not supplied by the client at the interview).
  5. If the client is being sued under a consumer credit or similar agreement and wishes to counterclaim as a result of the poor quality of the goods or services received, serve a defence and counterclaim.

2.5 Letters – the right style

The first decision as to procedure will be whether or not a formal letter before action should be sent. This should only be done if the client has done everything possible to find a solution to the problem. The objective of the initial correspondence will be to obtain a remedy.
Large companies will receive many complaints – no one provides the perfect goods and services – so it is important to make the right points. Solicitors who deal with commercial people must use commercial techniques, and their letters must reflect these. Some rules help in this objective:
  1. Whenever possible, the letter should be addressed to someone. This will not always be possible where the big company supplying the allegedly defective goods and services has a large customer relations department. If the client does not have very much information, a telephone call to find out the details may be necessary, but all this costs money, so too much time must not be spent on this. In relation to companies, the letter could merely be addressed to the company secretary.
  2. When solutions are suggested, a useful technique is to offer alternatives, either of which are acceptable to the client. The reason for this is that the reader of the letter will hopefully be deciding which of the two is the best for his or her business, so that the third option of not making a decision at all does not arise.
  3. The supplier must be informed of the benefits of settling the dispute – salespeople call this technique ‘selling the benefits’ rather than the product itself.

2.6 Precedent letter to seller

A letter to a large supplier of electrical goods

The Customer Relations Department
Unsound Goods Company Limited
Dear Sirs
Re: Your Midi Stereo System and our Client Mr John Smith
We are instructed by Mr John Smith regarding his purchase of the — Stereo System at your Cheapside Branch on Saturday, 12 December 20—, for which he paid £1,000 as recorded on your receipt number 111111, but the following additional facts require your attention.
They arise out of his action at home that evening when he set the equipment up in accordance with the instruction book supplied with it. The sound quality was very poor, and much to his horror and amazement the auto-stop not only failed to work, but the tape broke in the machine. He therefore ran a blank tape through the machine to test this facility and it, too, was broken. He then became alarmed at the smell of burning from the Stereo System, and the plug then fused.
He sought help from your company but the telephone lines to the branch were constantly engaged and it was not until the following Wednesday that Mr Smith was able to speak to anyone. He does not know the name of the person he spoke to, but he did ask for the manager, and he was told the shop was too busy with the Christmas rush to deal with queries relating to defective equipment. Since then, Mr Smith has written to the branch but has had no reply. He subsequently telephoned your customer service department, but he got no further than recorded messages and music.
This is most unsatisfactory, but in these circumstances one of the following alternatives obviously provides you with a solution to the problem:
  1. on the return of the Stereo System to refund a total of £1,050 which includes the cost of replacing the tapes and a contribution towards his costs in pursuing the matter; or
  2. to replace the equipment free of charge and to give him a credit note for £50 redeemable at any of your branches. Mr Smith has never had any such problems with your staff before, so this will enable your company to retain some goodwill and a customer. We are sure you will agree that either of these are good solutions to the difficulty.
We therefore look forward to hearing which of the solutions are acceptable to you. However, if you do not respond to this letter by Friday 20 January 20—, we are instructed to start legal proceedings against your company.

3 Interviewing the Seller-Client – Sale of Goods and Services

3.1 Introduction

When the supplier of goods or services comes for advice about consumer problems, it is usually because a court action has already commenced. If a letter before action only has been received, then, where the situation calls for a compromise or for none, the...

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