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

 

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