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John Antell represents successful appellant at Supreme Court

12th September 2014

Robertson v Swift [2014] UKSC 50; [2012] EWCA Civ 1794; [2013] Bus. L.R. 479; (2013) 177 J.P. 169; [2013] E.C.C. 9; [2013] C.T.L.C. 57; (2013) 157(3) S.J.L.B. 31

Trader and consumer entering into contract in the consumer’s home on the trader’s second visit. Trader not giving the consumer written notice of his right to cancel the contract under the Cancellation of Contracts made in a Consumer’s Home etc Regulations 2008. Consumer nevertheless informing the trader, two days later, that he was cancelling the contract. Trader suing the consumer for the difference between the deposit paid and the 50% “cancellation charge” provided for in the contract. Consumer defending on the basis of the Regulations but trial judge finding that the Regulations only apply to contracts made at a “first visit”. Held by the Court of Appeal that the Regulations apply whenever a contract is made in the consumer’s home irrespective of how many visits there have previously been. Further held that the Regulations are not ultra vires because s.2(2) of the European Communities Act 1972 and s.59  of the Consumers, Estate Agents and Redress Act 2007 together provide the necessary authority for the Regulations. The Court of Appeal did however, decide that the Consumer could not recover his deposit because the right to cancel and recover a deposit (as distinct from the right not to be liable for any further payment) only arose when the trader served notice of the right to cancel which the trader had not done.

On appeal to the Supreme Court on the recovery of deposit point, held that the 2008 Regulations must be interpreted in accordance with the purpose of the Doorstep Selling Directive. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences. A purposive interpretation was therefore required and the 2008 regulations should be read such that a failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel.      

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John Antell represents successful appellant at Supreme Court