Friday, 12 September 2014

News from EU consumer law in the UK: UKSC in Robertson v Swift

Although this blog usually deals with developments at the European level, sometimes it can be interesting to take a look at national practices affecting the implementation of European consumer law. 
In particular, this week the UK Supreme Court (hence, UKSC) released a judgement which signals the Court's intention to "take EU consumer law seriously" when it is called to fill in the gaps left by UK implementing legislation. 

In the case under discussion, Robertson (Appellant) v Swift (Respondent) [2014] UKSC 50, concerning a contract for the transportation of goods concluded between Dr Robinson, a private party seeking to move his furniture to his new home and Mr Swift, a professional mover, two questions had to be decided:
- first, whether the contract fell under the Cancellation of Contracts made in a Consumer’s Home Regulations 2008, entitling the consumer to a right of cancellation and to receiving the related notice;
- second, whether, lacking this notice, the consumer should still be entitled to cancellation within the term provided by the applicable legislation (7 days).

Previous instances had been dealing with the first question, concluding that, in light of Directive 85/577/EEC, that the Regulations sought to implement, the rules on doorstep sales should be applicable to the case- even though the negotiations had been initiated by the consumer and there had been more than one visit to his home, a circumstance that might have given Dr Robertson a better chance to consider whether he really wanted to take the offer. 

More interesting, however, is the second question. UK legislation had failed to provide a sanction for the violation of the duty to inform the consumer of his right to cancel a doorstep contract within a given time. In this context, the Court of Appeals had considered that the cancellation right could not be validly exercised. The UKSC, on the other hand, observed that it felt bound to interpret the national legislation in light of the original European directive; in this sense
"the court must not only keep faith with the wording of the Directive but must have closely in mind its purpose. Since the overall purpose of the Directive is to enhance consumer protection, that overarching principle must guide interpretation of the relevant national legislation. [para 22]"
In this regard, 
"The centrality of the right to cancel a contract as a feature of the protection which the Directive is designed to afford to the consumer was emphasised by CJEU [para 23] [...] 
The requirement to give notice of the right to cancel should not therefore be seen as a technical prerequisite to the arousal of the right but as a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. [para 24]"
As a consequence, 
"if the right to cancel could be effectively nullified by a failure (or refusal) of a trader to give written notice of the right to the consumer, this would create a considerable gap in the level of protection that the Directive sought to provide. [para 25]"

Interestingly, the UKSC observes that in this case the customer was well-educated, skilled and capable of negotiating and looking after his interests, but is "is clearly the intention of both the Directive and the regulations that those less well equipped than Dr Robertson should have what is considered to be the necessary protection. [para 26]"

Finally, the result thus reached by the Court is also consistent with what had been stated by the CJEU in Heininger (C-481/99). By adopting a "purposive construction" of the 2008 Regulations, the UKSC argues, it is possible to achieve such consistency. 

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