September 2014 articles archive:

The right to cancel revisited – a matter of interpretation (Robertson v Swift 2014)

The aim of the Regulations is to protect consumers from the risks they face when entering into a contract outside of business premises.

 

So you have successfully sold your house, now you need to make arrangements for a company to move the contents of your house to your new home. Simple you might say, but not so for Dr Robertson and it may be that many others have had a similar experience.

 

On the 27 July 2011 Robertson phoned Swift removals to make enquiries. His call was followed up by a visit from Swift, a price was agreed and Swift emailed an acceptance document. Robertson signed the document and handed it to Swift when he called to drop off some packaging material later that day. The document Robertson signed provided for charges in the event of cancellation of the contract less than 10 days before the removal was due to start. Dr Robertson also paid a deposit of £1,000.

 

Robertson made further enquiries to furniture removals over the following days and realised he was able to get the move completed for less money. He rang Swift to cancel the contract, Swift reminded Dr Robertson that there were cancellation charges; he said these would normally be 60% of the contract price but that he would accept 50% and, at this stage, Dr Robertson agreed to pay that. Robertson followed his call with a letter giving notice of cancellation on 1 August 2011.

 

In the ensuing days Robertson noted that Swift had not notified him of his cancellation rights correctly and refused to pay the cancellation charges on the ground that he had been entitled to cancel the contract by virtue of The Cancellation of Contracts made in a Consumer's Home Regulations 2008. Mr Swift started legal proceedings and Robertson denied liability and counterclaimed for the deposit he had paid to be returned.

 

The case was heard as a small claim at Exeter County Court on 5 January 2012. The deputy district judge held that the 2008 regulations did not apply because the contract had not been concluded during a single visit to Dr Robertson’s home. That decision was upheld by His Honour Judge Tyzack QC in the Torquay and Newton Abbot County Court on 27 April 2012.

 

Robertson appealed and the Court of Appeal found that the 2008 Regulations did apply in this case as the contract was concluded at the consumer's home, it was irrelevant that there had been more than one visit to the property. They allowed his appeal in part and with some reluctance. The Court of Appeal found that since notice of the right to cancel had not been served the contract was unenforceable. The Court therefore found for the consumer but at the same time refused the counterclaim, the contract had remained alive and Dr Robertson could not recover his deposit. Dr Robertson appealed against the dismissal of his counterclaim to the Supreme Court.

 

The Supreme Court allowed the appellant’s appeal against the dismissal of his counterclaim for the deposit. It was agreed that the 2008 Regulations could, and should, 'be given a purposive construction under both EU and domestic law'. That is to say the purpose of the legislation should be interpreted as closely as possible and in the case of the 2008 Regulations the intention was to ensure that all consumers should have the “safety net” of a cooling-off period. The aim was to protect consumers against the risks involved in contracts entered into outside of business premises. Under the Regulations, sellers must give consumers, at the point the contract is concluded, written notice of their right to cancel. The Appeal was allowed as the appellant had been within his rights to cancel the contract and was entitled to recover his deposit .

 

Robertson v Swift was decided under the 2008 regulations these have been replaced by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which were adopted by the UK on 13 December 2013 and came into effect from 13 June 2014. Amongst other things the 2013 regulations now extend the ‘cooling-off period’. This now means that consumers will have 14 calendar days (instead of 7 working days) in which they can voluntarily withdraw from a ‘distance’ or ‘off-premises’ contract without giving any specific reason.

 

 

For judgment, please download: [2014] UKSC 50

Purposive Approach - Under this rule judges are attempting to identify what they believe parliament meant to achieve.

Trading Standards website

 

Can we really embrace a new Victims' Law?

September 2014, has seen a lot of publicity about the new Victims' Law which will allow victims of crime to directly confront the offenders in court.

In England and Wales the Ministry of Justice is responsible for the policy regarding victim and witness care. This month, September 2014, has seen a lot of publicity about the new Victims' Law which will allow victims of crime to directly confront the offenders in court. The government has also said that, amongst other things, the law will make it necessary for publicly funded lawyers to undergo specialist training before taking on serious sex offence cases.

It is understandable that these announcements are met with caution by many. We read that the Labour Party have Keir Starmer QC and former Director of Public Prosecutions, advising them on a new Victims' Law. A law which they say will give victims of crime new entitlements to minimum standards of service as well as the ability to hold those services to account when standards are not met. They refer to the Governments Code of Conduct as toothless and unenforceable.

The commitments in the Government's policy paper have targets of March 2015 and April 2016 and a deadline of 2018 to further develop the Victims’ Information Service to allow the victim to track the progress of their case online, all the way through the criminal justice system. This will of course have to wait until the next Parliament to ensure that the rights of victims are enshrined in law.

 

We understand that from October 2014 Police and Crime Commissioners, will be taking on a bigger role in commissioning tailored local services to support victims. This is already being taken on board by various police authorities but with differing amounts of enthusiasm it would appear. This local commissioning could result in patchy support being provided for victims and witnesses and be more costly to administer.

 

Victim Support themselves say that nine out of ten victims are satisfied with Victim Support's services and suggest investing more money where it already works. They also suggest the Witness Service should be recognised and strengthened.

 

Are we seeing a 'back of an envelope' job with the present Conservative government and the Labour party aware of the EU Directive establishing minimum standards on the rights, support and protection of victims of crime [Directive 2012/29/EU ] which was adopted on 25 October 2012 and entered into force on 15 November 2012 and meaning that EU Member States have to implement the provisions into their national laws by 16 November 2015.

 

What of the effect on training for barristers with regard to the specialist training that will be required before taking on serious sex offence cases?

 

 

 


European e-Justice Portal - Rights of victims of crime in criminal proceedings
Victim Support

Chris Grayling unveils victims' rights reforms

Victims - Justice - European Commission

Our commitment to victims

Code of Practice for Victims of Crime - October 2013

Victims' factsheets - European Commission - Europa

 



A ward of court is one thing - Ashya King.

A ward of court is said to be ‘a person, especially a minor or one legally incapable of managing his own affairs, placed under the control or protection of a guardian or of a court’.

There has long since been a widespread understanding that situations can arise making it necessary for someone to be made a ward of court and thereby brought within the protection of the court. The case of Ashya King and the use of a European arrest warrant does however raise concerns. These concerns are especially worrying since it has been established that in different but closely related applications to the courts, there has been the clear expectation that the views and opinions of family members and other interested parties will need to be sought.


A ward of court is said to be ‘a person, especially a minor or one legally incapable of managing his own affairs, placed under the control or protection of a guardian or of a court’. (Collins English Dictionary).


An application to the courts is usually made by a family member but this is not always the case. The request does not have to be made by a family member. The person’s own solicitor, his or her doctor or the hospital authorities if he or she is a patient in a hospital may make the application. The application will be made to the High Court which has powers to make certain orders regarding children where they have been removed, are in serious danger or at risk. The court will then make the child a ward of court if it is felt appropriate to do so. At this point no action which will affect the child can be taken without permission from the High Court. The child will become the responsibility of the court and such orders are comparatively rare.


This was acknowledged in Mr Justice Baker's recent consideration of whether there was a need for Ashya to continue to be the subject of the courts' protection. Mr Justice Baker commented that given what the local authority knew at the time about Ashya's removal from Southampton hospital to Spain it had "acted entirely correctly in applying to the High Court and Judge Arthur was right in making Ashya a ward of court." Medical conditions are a common ground for wardship (Paragraph 1.2 of Practice Direction 12D of the FPR).


Following news that Ashya was to be admitted to the hospital in Prague for treatment of the kind sought by Ashya's parents Mr Justice Baker went on to say "Responsibility about a child rests with his parents. In most cases the parents are the best people to make decisions about a child. The state has no business in interfering in the parental responsibility unless the child is suffering or is likely to suffer considerable harm."


The need for wardship in medical cases is not uncommon and this is mentioned in practice directions. The assistance of the police may also be sought to prevent removal from the country (Practice Direction 12F (International Child Abduction), paras 4.4 - 4.7).

A medical tug of war with a child in the middle is not good for anyone. Traditionally, except in an emergency, consent from parents is required in order to perform medical procedures on children. The courts recognise that parents have rights but have to recognise that these rights are not absolute and should promote the welfare of children. In view of this, is there a need for further guidance in relation to these matters?

 

 

Judgment and Family Court Orders in the matter of Ashya King

 

Ashya King: Is it a crime to take your child out of hospital

 

The police's response to the Ashya King case is deeply troubling

 

Practice direction 12d - inherent jurisdiction

 

Practice Direction 12F - Ministry of Justice

 

 

 

 

 

 

 

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