Consumer Redress Legislation: Simplifying or Subverting the Law of Contract

AuthorElise Bant,Jeannie Marie Paterson
DOIhttp://doi.org/10.1111/1468-2230.12292
Publication Date01 Sep 2017
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LEGISLATION
Consumer Redress Legislation: Simplifying
or Subverting the Law of Contract
Elise Bantand Jeannie Marie Paterson
The growth of statutory consumer protection regimes in modern commercial societies has the
potential profoundly to disrupt the private law landscape. Such schemes aim to increase access
to justice for consumers by offering simplified and clear suites of rights and corresponding
remedies. In so doing, however, they affect core areas of private law rights and remedies, and
may come to undermine or replace existing contractual principles and policies. The result could
be an incoherent system of private law with differentpr inciples and rules applying to commercial
and consumer transactions. Coherence in the law requires that lawyers abandon their traditional
‘oil and water’ attitudes to legislative schemes and confront directly the interactions between
these two bodies of law. This paper engages in that enquiry by considering the relationship
between the relatively new consumer redress provisions in the Consumer Protection from
Unfair Trading Regulations 2008 and general law principles.
INTRODUCTION
In this ‘age of statutes’1it is no longer possible (if it ever was) to adopt the
comfortable view that legislation and common law are as ‘oil and water’2:
inherently distinct and amenable to independent study and application.3The
principle of coherence that underpins all mature legal systems,4requires that
individual rules and doctrines must be applied in a way that supports or
Co-convenor, Obligations Group, Melbourne Law School.
Associate Professor of Law, Melbourne law School.
1 G. Calabresi A Common Law for the Age of Statutes (Cambridge, Mass: Harvard University Press,
1982) 1.
2 J. Beatson, ‘Has the Common Law a Future’ (1997) 56 Cambridge Law Journal 291.
3 See, W. Gummow, Change and Continuity: Statute, Equity and Federalism (Oxford: OUP, 1999);
D. Wright, Common Law in the Age of Statutes: the Equity of the Statute (LexisNexis Butterworths,
2015); E. Bant, ‘Statute and Common Law: Interaction and Influence in Light of Principles of
Coherence’ (2015) 38 UNSW Law Journal 367; A. Burrows, ‘The Relationship of Common Law
and Statute in the Law of Obligations’ (2012) 128 LQR 231; J. Beatson, ‘The Role of Statute
in the Development of Common Law Doctrine’ (2001) 117 LQR 247; J. Dietrich, ‘What
is “Lawyering”? The Challenge of Taxonomy’ (2006) 65 Cambridge Law Journal 549; P. Finn,
‘Statutes and the Common Law’ (1992) 22 University of Western Australia Law Review 7; P. Finn,
‘Statutes and the Common Law: The Continuing Story’ in S. Corcoran and S.Bottomley (eds),
Interpreting Statutes (Sydney: Federation Press, 2005) 52; M. Leeming, ‘Theories and Principles
Underlying the Development of the Common Law – The Statutory Elephant in the Room’
(2013) 36 UNSW Law Journal 1002; Lord Robert Walker, ‘Developing the Common Law: How
Far is Too Far?’ (2013) 37 MULR 232.
4Miller vMiller (2011) 242 CLR 446; Equuscorp Pty Ltd vHaxton (2012) 246 CLR 498, at [35],
[38] and [45] per French CJ, Crennan and Kiefel JJ (Equuscorp).
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(5) MLR 895–926
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Consumer Redress Legislation
promotes broader coherence in the law, in particular by producing outcomes
consistent with any overriding prohibition or principle.5In that context, the
presence of a statutory scheme6addressing the impugned behaviour signals the
need to consider the statutory purpose as part of the wider enquir y. Indeed,
it has been argued that rationality in the law requires that statutes and general
law must, so far as is possible, be interpreted and applied in such a way as to
form part of a coherent private law as a whole.7Rather than seeing legislation
as a piecemeal patchwork of statutory incursions into common law, this view
embraces it as an integral part of our modern legal system. That does not
mean, however, that statutory principle always constitutes an obvious and
ready fit with its existing general law counterparts.8
The potentially disruptive impact of legislation in fields traditionally domi-
nated by contract, tort and equity is particularly evident in the area of consumer
protection. Statute has long operated in conjunction with private law doctrines
of contract, tort and equity.9However, unlike many statutory regimes that
supplement or complement these general law doctrines,10 consumer protec-
tion legislation typically provides a new source of rights that, although they
may have close analogues in contract, tort and equity, operate independently of
that law. The relationship between these bodies of law is not straightforward.
While consumer protection statutes operate alongside the general law, and in
many ways resemble the general law, the driving purposes behind the statutory
regimes are typically to promote consumer protection and fair market practices.
These goals may operate to temper the often robust assumptions about personal
responsibility that ground traditional contract doctrine. In this complex con-
text, the question posed by the overriding demand for coherence is whether
and to what extent schemes may cohabit with the broader legal context in
which they are situated in a principled and coherent way.
This paper considers these questions from the perspective of the remedial
regime accompanying the substantive rights granted by the Consumer Protec-
tion from Unfair Trading Regulations 200811 (CPUTR). Under the CPUTR,
consumers have access to two tiers of ‘rights of redress’12 that ‘approximate’
remedies in tort and equity,13 but apply in a simplified, or what might be
termed a ‘cheap and cheerful’, form. The prescr iptive and simplified form
of the regime would appear to leave little scope for influence from the gen-
eral law. Yet this approach raises the very real and nonsensical possibility of a
conceptual quarantine between the regimes applying to contractual disputes
5 This might require that otherwise relevant causes of action or defences are denied, see for
example the interplay between failure of basis and illegality in Equuscorp ibid.
6 Here including associated regulations and the decisions of adjudicative bodies charged with
administering the particular statute.
7 Burrows, n 3 above, 232; Bant, n 3 above.
8 See K. Barker and J. Steele, ‘Drifting Towards Proportionate Liability: Ethics and Pragmatics’
(2015) Cambridge Law Journal 49.
9 Leeming, n 3 above.
10 See, for example, Misrepresentation Act 1967, Frustrated Contracts Act 1946.
12 CPUTR, reg 3(1).
13 Consumer Redress for Misleading and Aggressive Practices Law Com 332;Scot Law Com 226 (2012)
[5.18].
896 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 895–926
Elise Bant and Jeannie Marie Paterson
involving consumers and those where all of the parties are either acting in a
private capacity or are in business. A better approach – and one more con-
sistent with the origins of the regime – would be to investigate the extent to
which doctrines and principles drawn from general law of obligations, and in
particular the law of contract, can and should inform the interpretation and
application of analogous consumer protection statutes. This approach also re-
quires consideration of the extent to which statutory schemes may exert an
influence on the development of the general law itself. In this regard, the very
confines of the legislative regime raise uncertainties that general law principles
may be well placed to assist in resolving, and which may in turn assist to ensure
some continued continuity in their parallel development.
A further complication, however, is that in interpreting the scheme, any
process of principled and coherent integration of common law and statu-
tory concepts must be mediated by the purposes of the consumer protec-
tion statute. The concept of coherence does not mandate compromising or
actively undermining the legislative framework by the introduction of in-
consistent assumptions drawn from the common law context of commercial
disputes.
The next part of this article commences this necessarily fine-g rained
enquiry by briefly outlining the rights to redress in the CPUTR. It then turns
to consider the relationship between these statutory approximations of general
law remedies and the general law principles and doctrines from which these
statutory provisions are drawn. The third part discusses the test of causation
adopted by the statute as a particular instance of the scope for interaction
between, and indeed integration of, general law and statutory principle.
The fourth part considers the first tier of r ights to unwind and to a discount
while the fifth part considers the second tier right to damages. In both
cases, the statutory scheme requires close attention to both the informing
features of, and divergences from, the general law doctrines on which it was
modelled. The article concludes by drawing from the preceding discussion
some necessarily brief but important examples of the converse possibility of
the legislation influencing the ongoing evolution of the general law.
CONSUMER PROTECTION REDRESS, STATUTES
AND THE COMMON LAW
The Consumer Protection from Unfair Trading Regulations
The CPUTR implement the European Union’s Directive on Unfair Commer-
cial Practices14 (the Directive). The Regulations contain a general prohibition
14 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 and amending Council Directive
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and
of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council
[2005] OJ L 149, 22.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 895–926 897

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