Robertson v Swift

JurisdictionEngland & Wales
JudgeLord Kerr,Lord Wilson,Lord Hodge,Lady Hale,Lord Carnwath
Judgment Date09 September 2014
Neutral Citation[2014] UKSC 50
Date09 September 2014
CourtSupreme Court

[2014] UKSC 50

THE SUPREME COURT

Trinity Term

On appeal from: [2012] EWCA Civ 1794

before

Lady Hale, Deputy President

Lord Kerr

Lord Wilson

Lord Carnwath

Lord Hodge

Robertson
(Appellant)
and
Swift
(Respondent)

Appellant

John Antell (Instructed Directly)

Intervener

Sarah Ford (Instructed by Office of Fair Trading)

Respondent

Terence John Swift

Heard on 19th March 2014

Lord Kerr (with whom Lady Hale, Lord Wilson, Lord Carnwath and Lord Hodge agree)

Introduction
1

Mr Swift owns a removal business. On 27 July 2011 he received a telephone call from Dr Toby Robertson, the appellant in this appeal. Dr Robertson asked for a quotation for moving his furniture and effects from Weybridge to his new home in Exmouth. The following day Mr Swift visited Dr Robertson's home and inspected the items to be moved. He proposed a price of £6,000. This did not compare well with other quotations that Dr Robertson had received. These had ranged between £3,000 and £4,000 but the firms that had quoted these figures had been unable to move Dr Robertson's furniture etc at a time that suited his plans. Dr Robertson explained the position to Mr Swift. The latter responded that the quotes Dr Robertson had been given were not typical and that his was a standard price. So, after some discussion, the two men agreed a price of £5,750 plus extended liability insurance cover and VAT, making a total of £ 7,595.40.

2

Mr Swift prepared a removal acceptance document which he sent by email to Dr Robertson. He also sent a copy of his standard conditions. These included the following:

"7.1 If you postpone or cancel this agreement, we will charge you according to how much notice is given. 'Working days' refer to the normal working days of Monday to Friday and excludes weekends and public holidays.

7.1.1: More than 10 working days before the removal was due to start – no charge; 7.1.2: Between 5 and 10 working days inclusive before the move was due to start – not more than 50 percent of the removal charge;

7.1.3: Less than 5 working days before the removal was due to start – not more than 80 percent of the removal charge

3

On the evening of 28 July Mr Swift made a second visit to Dr Robertson's home. On this occasion he delivered some boxes to be used for packing. At the same time Dr Robertson signed the acceptance document and gave it to Mr Swift. It was agreed that the removal operation would begin on Tuesday 2 August and Dr Robertson paid a deposit of £1,000.

4

Over the following days, Dr Robertson reflected on what had been agreed and made further inquiries of other removal firms. These led him to believe that the price which Mr Swift had quoted was well above the average cost of removal. After further research, he found a firm that was prepared to undertake the work for £3,490. On 30 July 2011 he telephoned Mr Swift and told him that he wished to cancel the contract. Mr Swift reminded Dr Robertson that there were cancellation charges; he said that the normal charge was 60% of the contract price but that he would accept 50% and, at this stage, Dr Robertson agreed to pay that. On 1 August he wrote to Mr Swift confirming his decision to cancel the contract, posting the letter on the day that it was written. It appears that Mr Swift did not receive the letter but, for reasons that will become clear, this is of no importance.

5

In due course Mr Swift demanded payment of the cancellation charges. Dr Robertson, having conducted some research in the meantime, decided that he had no liability for the charges and he refused to pay. Mr Swift duly issued proceedings and Dr Robertson counterclaimed for the return of his deposit.

The proceedings
6

The case was heard as a small claim by Deputy District Judge Batstone at Exeter County Court on 5 January 2012. Dr Robertson argued that he was entitled to cancel the contract by virtue of The Cancellation of Contracts made in a Consumer's Home, or Place of Work etc Regulations 2008. The deputy district judge held that these regulations did not apply because the contract had not been concluded during a single visit to Dr Robertson's home. That decision was upheld by His Honour Judge Tyzack QC in the Torquay and Newton Abbot County Court on 27 April 2012.

7

Dr Robertson appealed. The Court of Appeal (Mummery, Jackson and Lewison LJJ) allowed his appeal in part. Jackson LJ, delivering the principal judgment, held that the 2008 Regulations applied if the consumer's home was where the contract was concluded, irrespective of whether there had been earlier negotiations between the parties. He also held, however, that although, by virtue of regulation 7(6), the contract was unenforceable as against Dr Robertson, it remained alive and the deposit could not be recovered. This was because Mr Swift had not given Dr Robertson notice of his right to cancel the contract as required by regulation 7(2) of the 2008 Regulations and Dr Robertson was therefore not entitled to cancel under regulation 7(1). Dr Robertson appeals that decision to this court.

The Consumer Protection Directive
8

Council Directive (85/577/EEC) was the genesis for the 2008 Regulations (and their predecessor, The Consumer Protection (The Cancellation of Contracts concluded away from Business Premises) Regulations 1987). The preamble to the Directive contains the following recitals:

"Whereas the special feature of contracts concluded away from the business premises of the trader is that as a rule it is the trader who initiates the contract negotiations, for which the consumer is unprepared or which he does not [expect];

Whereas the consumer is often unable to compare the quality and price of the offer with other offers;

Whereas this surprise element generally exists not only in contracts made at the doorstep but also in other forms of contract concluded by the trader away from his business premises;

Whereas the consumer should be given a right of cancellation over a period of at least seven days in order to enable him to assess the obligations arising under the contract;

Whereas appropriate measures should be taken to ensure that the consumer is informed in writing of this period for reflection …"

9

In Case C-227/08 MARTÍN MARTÍN v EDP Editores SL [2010] 2 CMLR 27 CJEU in para 22 explained the importance of the first two of the recitals cited above:

"In that regard, it should be noted that the Directive, as is apparent from recitals 4 and 5, is designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises ( Hamilton v Volksbank Filder eG (C-412/06) [2008] E.C.R. I-2383; [2008] 2 C.M.L.R. 46 at [32]), as the special feature of those contracts is that as a rule it is the trader who initiates the contract negotiations, and the consumer has not prepared for such door-to-door selling by, inter alia, comparing the price and quality of the different offers available."

10

Article 1(1)(i) of the Directive provides that it is to apply to contracts under which a trader supplies goods or services to a consumer and which are concluded during a visit to the consumer's home. Article 4 requires traders to give consumers written notice of their right to cancel the contract within a period stipulated in article 5. In the case of article 1(1) transactions (such as involved in this case) the notice is to be given at the time the contract was concluded. Significantly, article 4 also requires member states to ensure that their national legislation prescribes "appropriate consumer protection measures" in cases where the information about cancelling the contract has not been supplied by the trader.

11

Article 5 gives the consumer the right to "renounce the effects of his undertaking" by sending notice within 7 days of receiving the notice provided for in article 4. It is sufficient if the notice is dispatched before the end of the period and the giving of notice has the effect of releasing the consumer from any obligations under the cancelled contract.

12

Article 7 provides that if the consumer exercises his right of renunciation, the legal effects of that are to be governed by national laws, particularly regarding the reimbursement of payment for goods or services.

The 2008 Regulations
13

Regulation 2 defines 'cancellation notice' as a notice in writing given by the consumer that he wishes to cancel the contract. 'Cancellation period' is defined as the period of 7 days starting with the date of receipt by the consumer of a notice of the right to cancel. Regulation 5 deals with the scope of application of the regulations. By regulation 5(a) they are said to apply to a contract for the supply of services by a trader to a consumer which is made during a visit by the trader to the consumer's home or place of work, or to the home of another individual.

14

Regulation 7(1) gives the consumer the right to cancel a relevant contract within the cancellation period and regulation 7(2) requires the trader to give the consumer written notice of his right to cancel. In the case of a contract such as was made between Mr Swift and Dr Robertson that notice is required to be given at the time the offer was made. Regulation 7(3) requires the notice to be dated and to indicate the consumer's right to cancel the contract within the cancellation period. Regulation 7(6) provides:

"A contract to which these Regulations apply shall not be enforceable against the consumer unless the trader has given the consumer a notice of the right to cancel and the information is in accordance with this regulation."

15

Regulation 8(1) provides that if the consumer serves a cancellation notice within the cancellation period, the contract is cancelled and regulation 8(5) provides that a cancellation notice sent by post is taken to have been served at the time of posting, whether or not it is actually received. The deputy district judge in this...

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