Consumer Protection in UK Law

As to the proper construction of s.14(2), given the clear view which I have formed, I do not consider it right to displace that construction simply to achieve harmony with a decision upon the meaning of s.12 of the UCTA 1977. S.14(2) as amended by SG(IT)A 1973 was itself a piece of consumer protection intended to afford wider protection to a buyer than that provided in the 1893 Act.

A literal reading of Regulation 6(3)(a) and its equivalent in Article 7.1 of the UCPD might suggest that something approaching an utmost good faith obligation is imposed in relation not merely to the consumer's decision whether to contract, but also to every transactional decision, such as, in the present case, a decision whether to respond to a promotion by post, text message or premium rate telephone call. In my judgment the key to understanding this paragraph is the concept of "need".

Consumer protection, which is the purpose of statutes of this kind, is achieved only if the occurrence of the prohibited acts or omissions is prevented. It is the deterrent effect of penal provisions which protects the consumer from the loss he would sustain if the offence were committed. If it is committed he does not receive the amount of any fine. As a taxpayer he will bear part of the expense of maintaining a convicted offender in prison.

But this rational and moral justification does not extend to penalizing an employer or principal who has done everything that he can reasonably be expected to do by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to control or influence, to prevent the commission of the offence (see Lim Chin Aik v. The Queen [1963] A.C. 160, 174; Sweet v. Parsley [1970] A.C. 132, 163).

If the same principle applies in the field of real property to the liability of the builder of a permanent structure which is dangerously defective, that liability can only arise if the defect remains hidden until the defective structure causes personal injury or damage to property other than the structure itself.