The Consumer Protection from Unfair Trading Regulations 2008

PART 1U.K.GENERAL

Citation and commencementU.K.

1.  These Regulations may be cited as the Consumer Protection from Unfair Trading Regulations 2008 and shall come into force on 26th May 2008.

InterpretationU.K.

2.—(1) In these Regulations—

“average consumer” shall be construed in accordance with paragraphs (2) to (6);

“business” includes [F1—]

(a)

a trade, craft or profession[F2, and

(b)

the activities of any government department or local or public authority;]

[F3“CMA” means the Competition and Markets Authority;]

“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;

“code owner” means a trader or a body responsible for—

(a)

the formulation and revision of a code of conduct; or

(b)

monitoring compliance with the code by those who have undertaken to be bound by it;

“commercial practice” means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product;

[F4“consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s business;]

[F5“DETINI” means “the Department of Enterprise, Trade and Investment in Northern Ireland;]

[F6“digital content” means data which are produced and supplied in digital form;]

[F7“enforcement authority” means the [F8CMA], every local weights and measures authority and DETINI;]

[F9“goods” means any tangible moveable items, but that includes water, gas and electricity if and only if they are put up for sale in a limited volume or set quantity;]

“invitation to purchase” means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase;

[F10“local weights and measures authority” means a local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985);]

“materially distort the economic behaviour” means in relation to an average consumer, appreciably to impair the average consumer's ability to make an informed decision thereby causing him to take a transactional decision that he would not have taken otherwise;

F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“premises” includes any place and any stall, vehicle, ship or aircraft;

[F12“product” means—

(a)

goods,

(b)

a service,

(c)

digital content,

(d)

immoveable property,

(e)

rights or obligations, or

(f)

a product of the kind mentioned in paragraphs (1A) and (1B),

but the application of this definition to Part 4A is subject to regulations 27C and 27D;.]

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either—

(a)

honest market practice in the trader's field of activity, or

(b)

the general principle of good faith in the trader's field of activity;

“ship” includes any boat and any other description of vessel used in navigation;

[F13“trader”—

(a)

means a person acting for purposes relating to that person’s business, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf, and

(b)

except in Part 4A, includes a person acting in the name of or on behalf of a trader;]

“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning—

(a)

whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or

(b)

whether, how and on what terms to exercise a contractual right in relation to a product.

[F14(but the application of this definition to regulations 5 and 7 as they apply for the purposes of Part 4A is subject to regulation 27B(2))]

[F15(1A) A trader (“T”) who demands payment from a consumer (“C”) in full or partial settlement of C’s liabilities or purported liabilities to T is to be treated for the purposes of these Regulations as offering to supply a product to C.

(1B) In such a case the product that T offers to supply comprises the full or partial settlement of those liabilities or purported liabilities.]

(2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.

(3) Paragraphs (4) and (5) set out the circumstances in which a reference to the average consumer shall be read as in addition referring to the average member of a particular group of consumers.

(4) In determining the effect of a commercial practice on the average consumer where the practice is directed to a particular group of consumers, a reference to the average consumer shall be read as referring to the average member of that group.

(5) In determining the effect of a commercial practice on the average consumer—

(a)where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, and

(b)where the practice is likely to materially distort the economic behaviour only of that group,

a reference to the average consumer shall be read as referring to the average member of that group.

(6) Paragraph (5) is without prejudice to the common and legitimate advertising practice of making exaggerated statements which are not meant to be taken literally.

Textual Amendments

F1Punctuation in reg. 2(1) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(2)(a)

F2Words in reg. 2(1) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(2)(b)

F4Words in reg. 2(1) substituted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(3)

F6Words in reg. 2(1) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(4)

F9Words in reg. 2(1) substituted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(5)

F12Words in reg. 2(1) substituted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(6)

F13Words in reg. 2(1) substituted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(7)

F14Words in reg. 2(1) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(8)

F15Reg. 2(1A)(1B) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 2(9)

PART 2U.K.PROHIBITIONS

Prohibition of unfair commercial practicesU.K.

3.—(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.

(3) A commercial practice is unfair if—

(a)it contravenes the requirements of professional diligence; and

(b)it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.

(4) A commercial practice is unfair if—

(a)it is a misleading action under the provisions of regulation 5;

(b)it is a misleading omission under the provisions of regulation 6;

(c)it is aggressive under the provisions of regulation 7; or

(d)it is listed in Schedule 1.

Prohibition of the promotion of unfair commercial practicesU.K.

4.  The promotion of any unfair commercial practice by a code owner in a code of conduct is prohibited.

Misleading actionsU.K.

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(2) A commercial practice satisfies the conditions of this paragraph—

(a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and

(b)it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(3) A commercial practice satisfies the conditions of this paragraph if—

(a)it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct, and

(ii)the commitment is firm and capable of being verified and is not aspirational,

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

(4) The matters referred to in paragraph (2)(a) are—

(a)the existence or nature of the product;

(b)the main characteristics of the product (as defined in paragraph 5);

(c)the extent of the trader's commitments;

(d)the motives for the commercial practice;

(e)the nature of the sales process;

(f)any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;

(g)the price or the manner in which the price is calculated;

(h)the existence of a specific price advantage;

(i)the need for a service, part, replacement or repair;

(j)the nature, attributes and rights of the trader (as defined in paragraph 6);

(k)the consumer's rights or the risks he may face.

(5) In paragraph (4)(b), the “main characteristics of the product” include—

(a)availability of the product;

(b)benefits of the product;

(c)risks of the product;

(d)execution of the product;

(e)composition of the product;

(f)accessories of the product;

(g)after-sale customer assistance concerning the product;

(h)the handling of complaints about the product;

(i)the method and date of manufacture of the product;

(j)the method and date of provision of the product;

(k)delivery of the product;

(l)fitness for purpose of the product;

(m)usage of the product;

(n)quantity of the product;

(o)specification of the product;

(p)geographical or commercial origin of the product;

(q)results to be expected from use of the product; and

(r)results and material features of tests or checks carried out on the product.

(6) In paragraph (4)(j), the “nature, attributes and rights” as far as concern the trader include the trader's—

(a)identity;

(b)assets;

(c)qualifications;

(d)status;

(e)approval;

(f)affiliations or connections;

(g)ownership of industrial, commercial or intellectual property rights; and

(h)awards and distinctions.

(7) In paragraph (4)(k) “consumer's rights” include rights the consumer may have under [F16sections 19 and 23 or 24 of the Consumer Rights Act 2015].

Textual Amendments

Misleading omissionsU.K.

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,

(b)the commercial practice hides material information,

(c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

(2) The matters referred to in paragraph (1) are—

(a)all the features and circumstances of the commercial practice;

(b)the limitations of the medium used to communicate the commercial practice (including limitations of space or time); and

(c)where the medium used to communicate the commercial practice imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means.

(3) In paragraph (1) “material information” means—

(a)the information which the average consumer needs, according to the context, to take an informed transactional decision; and

(b)any information requirement which applies in relation to a commercial communication as a result of a Community obligation.

(4) Where a commercial practice is an invitation to purchase, the following information will be material if not already apparent from the context in addition to any other information which is material information under paragraph (3)—

(a)the main characteristics of the product, to the extent appropriate to the medium by which the invitation to purchase is communicated and the product;

(b)the identity of the trader, such as his trading name, and the identity of any other trader on whose behalf the trader is acting;

(c)the geographical address of the trader and the geographical address of any other trader on whose behalf the trader is acting;

(d)either—

(i)the price, including any taxes; or

(ii)where the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated;

(e)where appropriate, either—

(i)all additional freight, delivery or postal charges; or

(ii)where such charges cannot reasonably be calculated in advance, the fact that such charges may be payable;

(f)the following matters where they depart from the requirements of professional diligence—

(i)arrangements for payment,

(ii)arrangements for delivery,

(iii)arrangements for performance,

(iv)complaint handling policy;

(g)for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

Aggressive commercial practicesU.K.

7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—

(a)it significantly impairs or is likely significantly to impair the average consumer's freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and

(b)it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—

(a)its timing, location, nature or persistence;

(b)the use of threatening or abusive language or behaviour;

(c)the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgment, of which the trader is aware, to influence the consumer's decision with regard to the product;

(d)any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and

(e)any threat to take any action which cannot legally be taken.

(3) In this regulation—

(a)“coercion” includes the use of physical force; and

(b)“undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision.

PART 3U.K.OFFENCES

Offences relating to unfair commercial practicesU.K.

8.—(1) A trader is guilty of an offence if—

(a)he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and

(b)the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b).

(2) For the purposes of paragraph (1)(a) a trader who engages in a commercial practice without regard to whether the practice contravenes the requirements of professional diligence shall be deemed recklessly to engage in the practice, whether or not the trader has reason for believing that the practice might contravene those requirements.

9.  A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

10.  A trader is guilty of an offence if he engages in a commercial practice which is a misleading omission under regulation 6.

11.  A trader is guilty of an offence if he engages in a commercial practice which is aggressive under regulation 7.

12.  A trader is guilty of an offence if he engages in a commercial practice set out in any of paragraphs 1 to 10, 12 to 27 and 29 to 31 of Schedule 1.

Penalty for offencesU.K.

13.  A person guilty of an offence under regulation 8, 9, 10, 11 or 12 shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum; or

(b)on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.

Time limit for prosecutionU.K.

14.—(1) No proceedings for an offence under these Regulations shall be commenced after—

(a)the end of the period of three years beginning with the date of the commission of the offence, or

(b)the end of the period of one year beginning with the date of discovery of the offence by the prosecutor,

whichever is earlier.

(2) For the purposes of paragraph (1)(b) a certificate signed by or on behalf of the prosecutor and stating the date on which the offence was discovered by him shall be conclusive evidence of that fact and a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.

(3) Notwithstanding anything in section 127(1) of the Magistrates' Courts Act 1980M1, an information relating to an offence under these Regulations which is triable by a magistrates' court in England and Wales may be so tried if it is laid at any time before the end of the period of twelve months beginning with the date of the commission of the offence.

(4) Notwithstanding anything in section 136 of the Criminal Procedure (Scotland) Act 1995 M2 summary proceedings in Scotland for an offence under these Regulations may be commenced at any time before the end of the period of twelve months beginning with the date of the commission of the offence.

(5) For the purposes of paragraph (4), section 136(3) of the Criminal Procedure (Scotland) Act 1995 shall apply as it applies for the purposes of that subsection.

(6) Notwithstanding anything in Article 19(1) of the Magistrates' Courts (Northern Ireland) Order 1981 M3 a complaint charging an offence under these Regulations which is triable by a magistrates' court in Northern Ireland may be so tried if it is made at any time before the end of the period of twelve months beginning with the date of the commission of the offence.

Marginal Citations

Offences committed by bodies of personsU.K.

15.—(1) Where an offence under these Regulations committed by a body corporate is proved—

(a)to have been committed with the consent or connivance of an officer of the body, or

(b)to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In paragraph (1) a reference to an officer of a body corporate includes a reference to—

(a)a director, manager, secretary or other similar officer; and

(b)a person purporting to act as a director, manager, secretary or other similar officer.

(3) Where an offence under these Regulations committed by a Scottish partnership is proved—

(a)to have been committed with the consent or connivance of a partner, or

(b)to be attributable to any neglect on his part,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(4) In paragraph (3) a reference to a partner includes a person purporting to act as a partner.

Offence due to the default of another personU.K.

16.—(1) This regulation applies where a person “X”—

(a)commits an offence under regulation 9, 10, 11 or 12, or

(b)would have committed an offence under those regulations but for a defence under regulation 17 or 18,

and the commission of the offence, or of what would have been an offence but for X being able to rely on a defence under regulation 17 or 18, is due to the act or default of some other person “Y”.

(2) Where this regulation applies Y is guilty of the offence, subject to regulations 17 and 18, whether or not Y is a trader and whether or not Y's act or default is a commercial practice.

(3) Y may be charged with and convicted of the offence by virtue of paragraph (2) whether or not proceedings are taken against X.

Due diligence defenceU.K.

17.—(1) In any proceedings against a person for an offence under regulation 9, 10, 11 or 12 it is a defence for that person to prove—

(a)that the commission of the offence was due to—

(i)a mistake;

(ii)reliance on information supplied to him by another person;

(iii)the act or default of another person;

(iv)an accident; or

(v)another cause beyond his control; and

(b)that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

(2) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of the matters referred to in paragraph (ii) or (iii) of paragraph (1)(a) without leave of the court unless—

(a)he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was in his possession; and

(b)the notice is served on the prosecutor at least seven clear days before the date of the hearing.

Innocent publication of advertisement defenceU.K.

18.—(1) In any proceedings against a person for an offence under regulation 9, 10, 11 or 12 committed by the publication of an advertisement it shall be a defence for a person to prove that—

(a)he is a person whose business it is to publish or to arrange for the publication of advertisements;

(b)he received the advertisement for publication in the ordinary course of business; and

(c)he did not know and had no reason to suspect that its publication would amount to an offence under the regulation to which the proceedings relate.

(2) In paragraph (1) “advertisement” includes a catalogue, a circular and a price list.

PART 4U.K.ENFORCEMENT

[F17Duty and power to enforce]U.K.

19.—[F18(1) It shall be the duty of every local weights and measures authority and DETINI to enforce these Regulations [F19(other than Part 4A).]

(1A) The [F20CMA] may also enforce these Regulations.]

(2) Where the enforcement authority is a local weights and measures authority the duty referred to in paragraph (1) shall apply to the enforcement of these Regulations within the authority's area.

(3) Where the enforcement authority is [F21DETINI] the duty referred to in paragraph (1) shall apply to the enforcement of these Regulations within Northern Ireland.

(4) [F22In determining how to comply with paragraph (1), or as the case may be, paragraph (1A),] every enforcement authority shall have regard to the desirability of encouraging control of unfair commercial practices by such established means as it considers appropriate having regard to all the circumstances of the particular case.

(5) Nothing in this regulation shall authorise any enforcement authority to bring proceedings in Scotland for an offence.

Textual Amendments

F19Words in reg. 19(1) inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 4(1)

Power to make test purchasesU.K.

F2320.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Power of entry and investigation, etc.U.K.

F2321.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Power to enter premises with a warrantU.K.

F2322.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Obstruction of authorised officersU.K.

F2323.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Notice of test and intended proceedingsU.K.

F2324.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

CompensationU.K.

F2325.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Application of Part 8 of Enterprise Act 2002U.K.

26.  In Schedule 13 to the Enterprise Act 2002 M4(listed Directives and Regulations), after paragraph 9B insert—

“9C  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.”.

Marginal Citations

M42002 c.40; paragraph 9B of Schedule 13 was inserted by S.I. 2006/3363.

Evidence as to factual claimsU.K.

27.  After section 218 of the Enterprise Act 2002 insert—

“218A    Unfair commercial practices: substantiation of claims

(1) This section applies where an application for an enforcement order or for an interim enforcement order is made in respect of a Community infringement involving a contravention of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.

(2) For the purposes of considering the application the court may require the person named in the application to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of that person if, taking into account the legitimate interests of that person and any other party to the proceedings, it appears appropriate in the circumstances.

(3) If, having been required under subsection (2) to provide evidence as to the accuracy of a factual claim, a person—

(a)fails to provide such evidence, or

(b)provides evidence as to the accuracy of the factual claim that the court considers inadequate,

the court may consider that the factual claim is inaccurate.

(4) In this section “commercial practice” has the meaning given by regulation 2 of the Consumer Protection from Unfair Trading Regulations 2008.”.

[F24PART 4AU.K.CONSUMERS’ RIGHTS TO REDRESS

Textual Amendments

F24Pt. 4A inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 3

When does a consumer have a right to redress?U.K.

27A.—(1) A consumer has a right to redress under this Part if—

(a)the conditions in this regulation are met, and

(b)the conditions (if any) in the following provisions of this Part for the availability of that right are met.

(2) The first condition is that—

(a)the consumer enters into a contract with a trader for the sale or supply of a product by the trader (a “business to consumer contract”),

(b)the consumer enters into a contract with a trader for the sale of goods to the trader (a “consumer to business contract”), or

(c)the consumer makes a payment to a trader for the supply of a product (a “consumer payment”).

(3) Paragraph (2)(b) does not apply if, under the contract, the trader supplies or agrees to supply a product to the consumer as well as paying or agreeing to pay the consumer.

(4) The second condition is that—

(a)the trader engages in a prohibited practice in relation to the product, or

(b)in a case where a consumer enters into a business to consumer contract for goods or digital content—

(i)a producer engages in a prohibited practice in relation to the goods or digital content, and

(ii)when the contract is entered into, the trader is aware of the commercial practice that constitutes the prohibited practice or could reasonably be expected to be aware of it.

(5) In paragraph (4)(b) “producer” means—

(a)a manufacturer of the goods or digital content,

(b)an importer of the goods or digital content into the [F25United Kingdom], or

(c)a person who purports to be a producer by placing the person’s name, trade mark or other distinctive sign on the goods or using it in connection with the digital content,

and includes a producer acting personally or through another person acting in the producer’s name or on the producer’s behalf.

(6) The third condition is that the prohibited practice is a significant factor in the consumer’s decision to enter into the contract or make the payment.

Textual Amendments

What does “prohibited practice” mean in this Part?U.K.

27B.—(1) In this Part “prohibited practice” means a commercial practice that—

(a)is a misleading action under regulation 5, or

(b)is aggressive under regulation 7.

(2) Regulations 5 and 7 apply for the purposes of this Part as if for the definition of “transactional decision” in regulation 2(1) there were substituted—

““transactional decision” means any decision taken by a consumer to enter into a contract with a trader for the sale or supply of a product by the trader, or for the sale of goods to the trader, or to make a payment to a trader for the supply of a product.”.

What immoveable property is covered by this Part?U.K.

27C.—(1) In this Part “product” does not include immoveable property other than a relevant lease.

(2) In this regulation “relevant lease” in relation to England F26... means—

(a)an assured tenancy within the meaning of Part 1 of the Housing Act 1988, or

(b)a lease under which accommodation is let as holiday accommodation.

(3) But none of the following are relevant leases for the purposes of paragraph (2)(a)—

(a)a lease granted by—

(i)a private registered provider of social housing, or

(ii)a registered social landlord within the meaning of Part 1 of the Housing Act 1996;

(b)a lease of a dwelling-house or part of a dwelling-house—

(i)granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or part or of the cost of providing it, or

(ii)under which the lessee (or the lessee’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house or part;

(c)a lease granted to a person as a result of the exercise by a local housing authority within the meaning of the Housing Act 1996 of its functions under Part 7 (homelessness) of that Act.

(4) In this regulation “relevant lease” in relation to Scotland means—

(a)an assured tenancy within the meaning of Part 2 of the Housing (Scotland) Act 1988, or

(b)a lease under which accommodation is let as holiday accommodation.

(5) In this regulation “relevant lease” in relation to Northern Ireland means—

(a)a private tenancy within the meaning of Article 3 of the Private Tenancies (Northern Ireland) Order 2006, or

(b)a lease under which accommodation is let as holiday accommodation.

(6) But neither of the following are relevant leases for the purposes of paragraph (5)(a)—

(a)a lease of a dwelling-house or part of a dwelling-house—

(i)granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or part or of the cost of providing it, or

(ii)under which the lessee (or the lessee’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house or part;

(b)a private tenancy resulting from the exercise by the Northern Ireland Housing Executive of its functions under Part 2 (homelessness) of the Housing (Northern Ireland) Order 1988.

[F27(7) In this regulation “relevant lease” in relation to Wales means—

(a)a standard contract, within the meaning given by the Renting Homes (Wales) Act 2016 (see section 8 of that Act), or

(b)a lease under which accommodation is let as holiday accommodation.

(8) But none of the following are relevant leases for the purposes of paragraph (7)(a)—

(a)an introductory standard contract within the meaning given by the Renting Homes (Wales) Act 2016 (see section 16 of that Act);

(b)a prohibited conduct standard contract within the meaning given by the Renting Homes (Wales) Act 2016 (see section 116 of that Act);

(c)a supported standard contract within the meaning given by the Renting Homes (Wales) Act 2016 (see section 143 of that Act);

(d)a lease under which the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department;

(e)a lease granted to a person as a result of the exercise by a local housing authority within the meaning of the Housing (Wales) Act 2014 of its functions under Part 2 (homelessness) of that Act;

(f)a lease of a dwelling-house or part of a dwelling-house—

(i)granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or part or of the cost of providing it, or

(ii)under which the contract-holder (or the contract-holder’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house or part.]

Textual Amendments

What financial services are covered by this Part?U.K.

27D.—(1) In this Part “product” does not include a service provided in the course of carrying on a regulated activity within the meaning of section 22 of the Financial Services and Markets Act 2000, other than a service to which paragraph (2) applies.

(2) This paragraph applies to a service consisting of the provision of credit under an agreement which is a restricted-use credit agreement within paragraph (a) or (b) of the definition of that term in article 60L(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.

(3) But paragraph (2) does not apply to an agreement under which the obligation of the borrower to repay is secured by a legal or equitable mortgage on land (other than timeshare accommodation).

(4) In paragraph (3)—

“mortgage” includes a charge and (in Scotland) a heritable security;

“timeshare accommodation” means overnight accommodation which is the subject of a timeshare contract within the meaning of the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010.

(5) The fact that the supply of a product within regulation 2(1A) and (1B) may constitute an activity within article 39F (debt-collecting) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 does not prevent this Part from applying in relation to that supply.

When does the right to unwind apply to a business to consumer contract?U.K.

27E.—(1) A consumer has the right to unwind in respect of a business to consumer contract if the consumer indicates to the trader that the consumer rejects the product, and does so—

(a)within the relevant period, and

(b)at a time when the product is capable of being rejected.

(2) An indication under paragraph (1) may be something that the consumer says or does, but it must be clear.

(3) In paragraph (1)(a) “the relevant period” means the period of 90 days beginning with the later of—

(a)the day on which the consumer enters into the contract, and

(b)the relevant day.

(4) In this Part “the relevant day” means the day on which—

(a)the goods are first delivered,

(b)the performance of the service begins,

(c)the digital content is first supplied,

(d)the lease begins, or

(e)the right is first exercisable,

(as the case may be).

(5) But in the case of a mixed contract, “the relevant day” means the latest of the days mentioned in paragraph (4) that is relevant to the contract.

(6) In this Part “mixed contract” means a contract relating to a product which consists of any two or more of goods, a service, digital content, immoveable property or rights.

(7) For the purposes of this Part, where the consumer’s access to digital content on a device requires its transmission to the device under arrangements initiated by the trader, the day on which the digital content is first provided is—

(a)the day on which it reaches the device, or

(b)if earlier, the day on which it reaches another trader chosen by the consumer to supply, under a contract with the consumer, a service by which digital content reaches the device.

(8) For the purposes of paragraph (1)(b), a product remains capable of being rejected only if—

(a)the goods have not been fully consumed,

(b)the service has not been fully performed,

(c)the digital content has not been fully consumed,

(d)the lease has not expired, or

(e)the right has not been fully exercised,

(as the case may be).

(9) For the purposes of paragraph (8)—

(a)goods have been fully consumed only if nothing is left of them, and

(b)digital content has been fully consumed only if the digital content was available to the consumer for a fixed period and that period has expired.

(10) A consumer does not have the right to unwind in respect of a business to consumer contract if the consumer has exercised the right to a discount in respect of that contract and the same prohibited practice.

How does the right to unwind work in the case of a business to consumer contract?U.K.

27F.—(1) Where a consumer has the right to unwind in respect of a business to consumer contract—

(a)the contract comes to an end so that the consumer and the trader are released from their obligations under it,

(b)the trader has a duty to give the consumer a refund (subject as follows), and

(c)if the contract was wholly or partly for the sale or supply of goods the consumer must make the goods available for collection by the trader.

(2) The consumer’s entitlement to a refund works as follows.

(3) To the extent that the consumer paid money under the contract, the consumer is entitled to receive back the same amount of money (but see paragraphs (7) to (10)).

(4) To the extent that the consumer transferred anything else under the contract, the consumer is entitled to receive back the same amount of what the consumer transferred, unless paragraph (5) applies.

(5) To the extent that the consumer transferred under the contract something for which the same amount of the same thing cannot be substituted—

(a)the consumer is entitled to receive back in its original state whatever the consumer transferred, or

(b)if it cannot be given back in its original state, the consumer is entitled to be paid its market price as at the time when the product was rejected.

(6) There is no entitlement to a refund if none of paragraphs (3) to (5) applies.

(7) The consumer’s entitlement to receive back the same amount of money as the consumer paid is qualified by paragraphs (8) to (10) if—

(a)the contract was for the sale or supply of a product on a regular or continuous basis, and

(b)the period beginning with the relevant day and ending with the day on which the consumer rejected the product exceeds one month.

(8) In that case the consumer is only entitled to receive back the amount (if any) found by deducting the market price, when the consumer rejected the product, of the product supplied up to that time from the amount the consumer paid for it.

(9) But paragraph (8) does not apply if it is not appropriate to apply that deduction having regard to—

(a)the behaviour of the person who engaged in the prohibited practice, and

(b)the impact of the practice on the consumer.

(10) Where the product supplied up to the time when the consumer rejected it consists wholly or partly of goods, their market price is only to be taken into account under paragraph (8) to the extent that they have been consumed.

How does the right to unwind work in the case of a consumer to business contract?U.K.

27G.—(1) A consumer who has a right to redress in respect of a consumer to business contract has the right to unwind in respect of that contract.

(2) Where paragraph (1) applies—

(a)the consumer has the right to treat the contract as at an end so that the trader and the consumer are released from their obligations under it, and

(b)the consumer has the right within paragraph (5) or (6).

(3) To treat the contract as at an end, the consumer must indicate to the trader that the contract is ended.

(4) An indication under paragraph (3) may be something that the consumer says or does, but it must be clear.

(5) If the trader is able to return the goods to the consumer in the condition they were in when sold by the consumer—

(a)the consumer has a right to the return of the goods, and

(b)the consumer must repay to the trader the amount (if any) that the trader has paid for the goods.

(6) If paragraph (5) does not apply, the consumer has a right to a payment from the trader of the amount (if any) by which the market price of the goods when the trader paid for them exceeds what the trader paid for them.

How does the right to unwind work if payments are demanded which are not due?U.K.

27H.—(1) A consumer has the right to unwind in respect of a consumer payment for a product within regulation 2(1A) and (1B) if the consumer was not required to make all or part of the payment.

(2) Where paragraph (1) applies, the consumer has the right to receive back from the trader—

(a)the same amount of money as the consumer paid to the trader, or

(b)in a case where the consumer was required to make part of the payment, an amount equal to the part of the payment the consumer was not required to make.

How does the right to a discount work?U.K.

27I.—(1) A consumer has the right to a discount in respect of a business to consumer contract if—

(a)the consumer has made one or more payments for the product to the trader or one or more payments under the contract have not been made, and

(b)the consumer has not exercised the right to unwind in respect of the contract.

(2) If the consumer has made one or more payments, the consumer has the right to receive back from the trader the relevant percentage of the payment or payments.

(3) If one or more payments have not been made, the consumer has the right—

(a)to reduce by the relevant percentage as many of those payments as is appropriate having regard to the seriousness of the prohibited practice, or

(b)in a case within paragraph (6), to reduce all of those payments by the relevant percentage.

(4) Subject to paragraph (6), the relevant percentage is as follows—

(a)if the prohibited practice is more than minor, it is 25%,

(b)if the prohibited practice is significant, it is 50%,

(c)if the prohibited practice is serious, it is 75%, and

(d)if the prohibited practice is very serious, it is 100%.

(5) The seriousness of the prohibited practice is to be assessed by reference to—

(a)the behaviour of the person who engaged in the practice,

(b)the impact of the practice on the consumer, and

(c)the time that has elapsed since the prohibited practice took place.

(6) [F28Paragraph (4)] does not apply if—

(a)the amount payable for the product under the contract exceeds £5,000,

(b)the market price of the product, at the time that the consumer entered into the contract, is lower than the amount payable for it under the contract, and

(c)there is clear evidence of the difference between the market price of the product and the amount payable for it under the contract.

(7) In such a case, the relevant percentage is the percentage difference between the market price of the product and the amount payable for it under the contract.

(8) The application of this regulation does not affect any of the other rights and liabilities under the contract.

Textual Amendments

F28Words in reg. 27I(6) substituted (with application in accordance with reg. 1(2) of the amending S.I.) by The Consumer Contracts (Amendment) Regulations 2015 (S.I. 2015/1629), regs. 1(1), 9(2)

How does the right to damages work?U.K.

27J.—(1) Subject as follows, a consumer has the right to damages if the consumer—

(a)has incurred financial loss which the consumer would not have incurred if the prohibited practice in question had not taken place, or

(b)has suffered alarm, distress or physical inconvenience or discomfort which the consumer would not have suffered if the prohibited practice in question had not taken place.

(2) The right to damages is the right to be paid damages by the trader for the loss or the alarm, distress or physical inconvenience or discomfort in question.

(3) The right to be paid damages for financial loss does not include the right to be paid damages in respect of the difference between the market price of a product and the amount payable for it under a contract.

(4) The right to be paid damages under this regulation is a right to be paid only damages in respect of loss that was reasonably foreseeable at the time of the prohibited practice.

(5) A consumer does not have the right to damages if the trader proves that—

(a)the occurrence of the prohibited practice in question was due to—

(i)a mistake,

(ii)reliance on information supplied to the trader by another person,

(iii)the act or default of a person other than the trader,

(iv)an accident, or

(v)another cause beyond the trader’s control, and

(b)the trader took all reasonable precautions and exercised all due diligence to avoid the occurrence of the prohibited practice.

How can a consumer enforce the rights to redress?U.K.

27K.—(1) A consumer with a right to redress under this Part may bring a claim in civil proceedings to enforce that right.

(2) In Scotland, proceedings to enforce the right to unwind may be brought before the sheriff or in the Court of Session.

(3) Paragraph (4) applies if in proceedings under this regulation the consumer establishes that the consumer has—

(a)the right to unwind,

(b)the right to a discount, or

(c)the right to damages.

(4) The court must make an order that gives effect to—

(a)that right, and

(b)any associated obligations of the consumer under this Part.

(5) The Limitation Act 1980 applies to a claim under this regulation in England and Wales as if it were an action founded on simple contract.

(6) The Limitation (Northern Ireland) Order 1989 applies to a claim under this regulation in Northern Ireland as if it were an action founded on simple contract.

How does this Part relate to the existing law?U.K.

27L.—(1) Nothing in this Part affects the ability of a consumer to make a claim under a rule of law or equity, or under an enactment, in respect of conduct constituting a prohibited practice.

(2) But a consumer may not—

(a)make a claim to be compensated under a rule of law or equity, or under an enactment, in respect of such conduct if the consumer has been compensated under this Part in respect of the conduct, or

(b)make a claim to be compensated under this Part in respect of such conduct if the consumer has been compensated under a rule of law or equity, or under an enactment, in respect of the conduct.

(3) In this regulation “enactment” includes—

(a)an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978,

(b)an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,

(c)an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament, and

(d)an enactment contained in, or in an instrument made under, Northern Ireland legislation.]

PART 5U.K.SUPPLEMENTARY

[F29Inertia sellingU.K.

[F3027M.]—(1) This regulation applies where a trader engages in the unfair commercial practice described in paragraph 29 of Schedule 1 (inertia selling).

(2) The consumer is exempted from any obligation to provide consideration for the products supplied by the trader.

(3) The absence of a response from the consumer following the supply does not constitute consent to the provision of consideration for, or the return or safekeeping of, the products.

(4) In the case of an unsolicited supply of goods, the consumer may, as between the consumer and the trader, use, deal with or dispose of the goods as if they were an unconditional gift to the consumer.]

Textual Amendments

F29Reg. 27A inserted (with application in accordance with reg. 1(2) of the amending S.I.) by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (S.I. 2013/3134), regs. 1(1), 39 (with reg. 6)

F30Regulation 27A: re-numbered as regulation 27M (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 4(2)

CrownU.K.

28.—F31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Crown is not criminally liable as a result of any provision of these Regulations.

(3) Paragraph (2) does not affect the application of any provision of these Regulations in relation to a person in the public service of the Crown.

Textual Amendments

Validity of agreementsU.K.

29.  [F32Except as provided by Part 4A,] an agreement shall not be void or unenforceable by reason only of a breach of these Regulations.

Textual Amendments

F32Words in reg. 29 inserted (with application in accordance with reg. 1(3) of the amending S.I.) by The Consumer Protection (Amendment) Regulations 2014 (S.I. 2014/870), regs. 1(3), 4(3)

Amendments, repeals and transitional and saving provisionsU.K.

30.—(1) Schedule 2 (which contains amendments) shall have effect.

(2) Schedule 3 (which contains transitional and saving provisions) shall have effect.

(3) Schedule 4 (which contains repeals and revocations) shall have effect.

Gareth Thomas

Parliamentary Under Secretary of State for Trade and Consumer Affairs

Department for Business, Enterprise & Regulatory Reform