18 months after the Court of Appeal handed down judgment partially in favour of Dr Robertson, the Supreme Court perfected his success by finding entirely in his favour in this small claim.
Dr Robertson entered into an agreement with Mr Swift for removal services to his new house. The agreement was signed at Dr Robertson’s home and contained clauses levying charges in the event of late cancellation. Dr Robertson cancelled the agreement shortly before the moving date, having found a much cheaper provider. Mr Swift sought to levy a 50% charge for late cancellation and Dr Robertson counterclaimed for return of his deposit.
The Court of Appeal allowed Dr Robertson’s case in part, holding that the Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc. Regulations 2008 applied. The contract was unenforceable against Dr Robertson as Mr Swift had given no notice of his right to cancel, but also it remained alive so Dr Robertson could not recover his deposit.
The Supreme Court considered the correct interpretation of the 2008 Regulations in light of the EU Directive that they sought to implement, concluding that the overarching principle was to enhance consumer protection.
As a matter of principle, the trader could not be allowed to deny the consumer’s right to cancel by failing to give them notice of that right. Even though, in the instant case, Dr Robertson might be rather better informed than an average consumer, and Mr Swift, as a small business owner, might have done rather badly out of the transaction, the principle still applied. The consumer was to be placed in the position he would have been had he not entered the agreement in the first place.
The Court read the 2008 Regulations, (Regs. 7(1) and 8(1)) as allowing cancellation “at any time prior to the expiration of” the cancellation period, the same running for 7 days after notice of the right to cancel was received. Where no such notice was received, time did not start to run and the consumer could cancel at any point. Dr Robertson was therefore entitled to cancel and recover his deposit in full.
Helen Turnbull / 1st Oct 2014
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