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    • Timothea
    • By Timothea 19th Jun 17, 5:12 PM
    • 129Posts
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    Timothea
    Consumer Rights Act Guidance
    • #1
    • 19th Jun 17, 5:12 PM
    Consumer Rights Act Guidance 19th Jun 17 at 5:12 PM
    The Consumer Rights Act 2015 (CRA) came into force on 1 October 2015. The CRA replaced both the relevant parts of the Unfair Contract Terms Act 1977 (UCTA) and the entirety of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs).

    [N.B. Although these Acts and Regulations were each implementations of EU Directives, Parliament extended consumer rights in the CRA beyond the minimum requirements of the EU, and the CRA is expected to survive Brexit unchanged.]

    The main fairness and transparency requirements are unchanged; only their scope has changed; this also means that case-law relating to the UCTA and the UTCCRs are applicable to the CRA. A term or notice is unfair ‘if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.’

    As well as consolidating all consumer rights found in the UCTA and the UTCCRs, the CRA also extended consumer rights in a number of significant ways, namely:
    1. The CRA applies to all contracts between a trader and a consumer(other than employment or apprenticeship) including negotiated contracts, service contracts and secondary contracts (which were previously excluded)
    2. The definition of ‘consumer’ has been widened to include individuals acting mainly outside their trade, business, craft or profession; and the burden of proof that an individual is not a consumer is borne by the trader
    3. As well as written contracts, the CRA also applies to both contractual and non-contractual consumer notices (defined as any communication which is intended to be seen or heard by the consumer) such as those found in car parks
    4. As well as the usual transparency requirements, written terms and notices must be legible
    5. The main subject matter and the price payable are excluded from the fairness requirement if they are transparent (as before) but also prominent (defined as being brought to the consumer’s attention in such a way that the average consumer would be aware of it)
    6. Courts must assess the fairness of consumer contract terms, even when not expressly asked to do so by the parties involved

    So, what does this mean in practice?

    The good faith requirement embodies ‘an overall evaluation of the different interests involved’ and includes the following general principles:
    • Fair and open dealing – this relates to how contracts are drafted and presented, as well as the way in which they are negotiated and carried out. It requires, in particular, that contracts be drawn up in a way that respects consumers’ legitimate interests.
    • Openness – this requires that terms and notices should be ‘expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously’ to the consumer.
    • Fair dealing – this requires that, in drafting and using contract terms, traders ‘should not, whether deliberately or unconsciously, take advantage’ of consumers' circumstances to their detriment.

    This means that traders must, in formulating their contract terms, not simply resist the temptation to take advantage of consumers, but actively take the legitimate interests of consumers into account. Traders should take particular care in communicating key terms to consumers who may have greater difficulty than others in collecting, processing and acting upon information. The Equality Act 2010 (EA) can also relevant when considering fairness and transparency.

    Some terms and notices are always deemed to be unfair, and these are referred to as blacklisted terms and notices. There is one blacklisted item that may be applicable to private parking contracts:
    • Terms or notices seeking to exclude or restrict liability for death or personal injury resulting from negligence

    Otherwise, the CRA illustrates the meaning of unfairness by including a long, non-exhaustive and illustrative list of terms that may be unfair. This is called the Grey List because it includes terms that are likely to be unfair, depending on the particular circumstances in each case. The following Grey List terms may be applicable to private parking contracts:
    1. Exclusion and limitation clauses in general
    2. Disproportionate financial sanctions
    3. Binding consumers to hidden terms
    4. Restricting consumers’ remedies

    The second of these is worth considering in more detail. Part 1 of Schedule 2 states that the following may be unfair:
    (6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation
    It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the trader is one kind of sanction that is likely to be considered disproportionate. Such a requirement may be void to the extent that it amounts to a penalty under English common law. However, a term may still be considered unfair independently of the common law, if it has a penal purpose or effect. In particular, a disproportionate financial sanction involving a requirement to pay a fixed or minimum sum in all circumstances will be open to challenge if the sum could be too high in some cases.

    Enforcement

    The CRA can be enforced by individual consumers in the civil courts, of course, but there are a number of regulators with significant enforcement powers. These include:
    • The Competition & Markets Authority (CMA)
    • The Consumers’ Association (Which?)
    • Local weights and measures authorities (Trading Standards) in Great Britain
    • The Department of Enterprise, Trade and Investment (DETI) in Northern Ireland
    • The Office of Rail Regulation, since renamed the Office of Rail and Road (ORR)
    • and several other consumer market sector regulators unrelated to parking

    I would encourage everyone to complain to any or all of these regulators about the unfair practices of the private parking industry. They only look into something once they have received a large volume of complaints. There is a particular unfairness with the IAS that should be brought to the attention of CMA and the Consumers’ Association frequently. This is from the Grey List:
    (20) A term which has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, in particular by –
    a) (not relevant), or
    b) unduly restricting the evidence available to the consumer, or
    c) imposing on the consumer a burden of proof which, according to applicable law, should lie with another party to the contract.
    Guidance, legislation and case-law

    1. CMA (2015) Unfair Contract Terms Guidance (CMA37)
    2. OFT (2008), Unfair Contract Terms Guidance: Guidance for the Unfair Terms in Consumer Contracts Regulations 1999 (OFT311) adopted by the CMA without amendment in 2014
    3. The Office of Fair Trading v Foxtons Ltd [2009] EWHC 1681
    4. Consumer Protection from Unfair Trading Regulations – traders (OFT1008)
    5. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
    6. The Director General of Fair Trading v First National Bank plc [2001] UKHL 52
    7. Aziz v Caixa D’Estalvis de Catalunya, Tarragona i Manresa CJEU C-415/11
    8. Spreadex Ltd v Cochrane [2012] EWHC 1290
    9. Consumer Contracts (OFT1312) February 2011
    10. The Office of Fair Trading v Ashbourne Management Services Ltd and others [2011] EWHC 1237
    11. Deutsche Bank (Suisse) SA v Khan and others [2013] EWHC 482
    12. Harrison and others v Shepherd Homes Ltd and others [2011] EWHC 1811
    13. RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen e.V. CJEU C-92/11
    14. Bogdan Matei and Ioana Ofelia Matei v SC Volksbank România SA CJEU C-143/13
    15. Jean-Claude Van Hove v CNP Assurances SA CJEU C-96/14
    16. El Corte Ingl!s v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2004] ECR II-965, Joined Cases T-183/02 and T184/02
    17. The Office of Fair Trading v Abbey National plc and others [2009] UKSC 6
    18. Munkenbeck and another v Harold [2005] EWHC 356
    19. Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi ZrtCJEU C-472/10
    20. The Financial Services Authority v Asset LI.Inc (trading as Asset Land Investment Inc) and Others [2013] EWHC 178
Page 1
    • The Deep
    • By The Deep 19th Jun 17, 5:16 PM
    • 6,578 Posts
    • 5,521 Thanks
    The Deep
    • #2
    • 19th Jun 17, 5:16 PM
    • #2
    • 19th Jun 17, 5:16 PM
    Some people on here seem to think that Beavis has driven a coach and horses through the CRA. Nearly all so-called contracts between PPCs and their customers are unfair imo.
    You never know how far you can go until you go too far.
    • Timothea
    • By Timothea 19th Jun 17, 5:52 PM
    • 129 Posts
    • 255 Thanks
    Timothea
    • #3
    • 19th Jun 17, 5:52 PM
    • #3
    • 19th Jun 17, 5:52 PM
    Beavis pre-dates both the Consumer Rights Act 2015 (CRA) and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCRs).

    The CRA extends consumer rights to virtually all consumer contracts, Previously, service contracts and consumer notices were largely out of scope. All but one of the Supreme Court judges in Beavis decided that the old legislation did not apply, but the CRA and CCRs clearly do apply.

    The sanction for breaching the CRA is that the unfair terms are unenforceable. However, the sanction for breaching the CCRs is that the whole contract is unenforceable, which is much more powerful. We really should be promoting these defences more often.
    • Coupon-mad
    • By Coupon-mad 19th Jun 17, 5:55 PM
    • 46,959 Posts
    • 60,319 Thanks
    Coupon-mad
    • #4
    • 19th Jun 17, 5:55 PM
    • #4
    • 19th Jun 17, 5:55 PM
    Beavis pre-dates both the Consumer Rights Act 2015 (CRA) and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCRs).

    The CRA extends consumer rights to virtually all consumer contracts, Previously, service contracts and consumer notices were largely out of scope. All but one of the Supreme Court judges in Beavis decided that the old legislation did not apply, but the CRA and CCRs clearly do apply.

    The sanction for breaching the CRA is that the unfair terms are unenforceable. However, the sanction for breaching the CCRs is that the whole contract is unenforceable, which is much more powerful. We really should be promoting these defences more often.
    Originally posted by Timothea
    Good points.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • IamEmanresu
    • By IamEmanresu 19th Jun 17, 6:01 PM
    • 1,293 Posts
    • 2,380 Thanks
    IamEmanresu
    • #5
    • 19th Jun 17, 6:01 PM
    • #5
    • 19th Jun 17, 6:01 PM
    The CRA 2015 did not introduce any new legislation as it incorporated existing Acts. Beavis dealt specifically with UTCCR ("the 1999 Regulations") so read paras 105 onwards.

    IMHO you are barking up the wrong tree but rather than exchange opinions about it, why not take a couple of cases and argue those points and see how far it gets in front of a judge. You can even argue the points yourself as there will be people who will happily have you as a Lay Rep.

    There will be unfairness in some cases but it will depend on the individual circumstances of each case.
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.
    • bargepole
    • By bargepole 19th Jun 17, 6:11 PM
    • 1,962 Posts
    • 5,530 Thanks
    bargepole
    • #6
    • 19th Jun 17, 6:11 PM
    • #6
    • 19th Jun 17, 6:11 PM
    ... However, the sanction for breaching the CCRs is that the whole contract is unenforceable, which is much more powerful. We really should be promoting these defences more often.
    Originally posted by Timothea
    I've run this argument in half a dozen cases now, and have yet to find a Judge who goes along with it.

    They either dismiss the case for other reasons, or else find that it is not a distance contract within the meaning of CCR 2013.

    I'm afraid this one now goes into the Irrelevant Defences bin as far as I'm concerned.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 23. Lost 7.
    • Timothea
    • By Timothea 20th Jun 17, 8:07 PM
    • 129 Posts
    • 255 Thanks
    Timothea
    • #7
    • 20th Jun 17, 8:07 PM
    • #7
    • 20th Jun 17, 8:07 PM
    The CRA 2015 did not introduce any new legislation as it incorporated existing Acts. Beavis dealt specifically with UTCCR ("the 1999 Regulations") so read paras 105 onwards.

    IMHO you are barking up the wrong tree but rather than exchange opinions about it, why not take a couple of cases and argue those points and see how far it gets in front of a judge. You can even argue the points yourself as there will be people who will happily have you as a Lay Rep.

    There will be unfairness in some cases but it will depend on the individual circumstances of each case.
    Originally posted by IamEmanresu
    I understand the problem of District Judges not wanting to create rulings for new laws and regulations; they are much happier relying on familiar topics and relevant case-law. The CCRs have been around for several years now but I am unaware of any case-law. IMHO, the solution is to create some case-law rather than just giving up; the prize is worth the chase.

    I would be very happy to argue the CCRs in front of any judge as a lay rep. I currently work full time in Central London, so my availability is limited (Clerkenwell would be ideal). I expect I would need some support to prepare the defence from those with more court experience or legal knowledge.

    The CRA is a different problem. I believe the best tactic is to complain to the regulators (CMA, CA and Trading Standards) as frequently as possible. The CRA has some applicability in court proceedings, but this is mainly when terms and notices are open to more than one interpretation. There is case-law to support this.
    • unforeseen
    • By unforeseen 20th Jun 17, 8:36 PM
    • 1,487 Posts
    • 1,906 Thanks
    unforeseen
    • #8
    • 20th Jun 17, 8:36 PM
    • #8
    • 20th Jun 17, 8:36 PM
    I understand the problem of District Judges not wanting to create rulings for new laws and regulations;
    Originally posted by Timothea
    You do realise that their judgement in parking cases are not capable of the above?

    Unless you lose and want to go further up the court system by appealing
    • hoohoo
    • By hoohoo 20th Jun 17, 8:46 PM
    • 1,655 Posts
    • 3,057 Thanks
    hoohoo
    • #9
    • 20th Jun 17, 8:46 PM
    • #9
    • 20th Jun 17, 8:46 PM
    I've run this argument in half a dozen cases now, and have yet to find a Judge who goes along with it.

    They either dismiss the case for other reasons, or else find that it is not a distance contract within the meaning of CCR 2013.

    I'm afraid this one now goes into the Irrelevant Defences bin as far as I'm concerned.
    Originally posted by bargepole
    I think this is because judges do not understand the act. I still think this is worth a shot, especially in cases where the ticket is purchased by phone.
    Dedicated to driving up standards in parking
    • Coupon-mad
    • By Coupon-mad 20th Jun 17, 9:47 PM
    • 46,959 Posts
    • 60,319 Thanks
    Coupon-mad
    You do realise that their judgement in parking cases are not capable of the above?

    Unless you lose and want to go further up the court system by appealing
    Originally posted by unforeseen
    Timothea does realise that it doesn't create case law, but it's worth trying to get a ruling.

    I think this is because judges do not understand the act. I still think this is worth a shot, especially in cases where the ticket is purchased by phone.
    I agree.

    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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