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Robertson v Swift [2014] UKSC 50 (09 September 2014)
More... See attached Judgment and Press Summary
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.
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
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.
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.
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.
REASONS FOR THE JUDGMENT
•
The 2008 Regulations gave effect to Council Directive (85/577/EEC) (‘the Directive’). The Directive was designed to protect consumers against the risks inherent in the conclusion ofcontracts away from business premises. It requires traders to give consumers written notice oftheir right to cancel the contract at the time the contract is concluded and asks member statesto ensure through national legislation that appropriate consumer protection measures are putin place for cases where this notice is not given [8-12].
•
The Court of Appeal was correct to conclude that the 2008 Regulations applied in the circumstances of this case, and that the contract was therefore unenforceable by Mr Swift, eventhough there had been two visits to Dr Robertson’s home at his express invitation. It hadbeen open to member states to adopt provisions that were more favourable to consumers thanthose required by the Directive [17-19]. The Court of Appeal had, however, erred when itfound that Dr Robertson was not entitled to cancel the contract unless and until he had beenserved with notice of his right to cancel. The 2008 Regulations should be interpreted in thelight of the wording and purpose of the Directive [20-22, 28]. The right to cancel contractsmade at home was central to the protection afforded to consumers under the Directive and therequirement to give notice of the right to cancel was not a technical prerequisite to the exerciseof the right [23-24]. To hold that it could be nullified by a failure or refusal of a trader to givewritten notice of the right to cancel to a consumer would run directly counter to the overallpurpose of the Directive and create a considerable gap in the level of protection provided [25].
•
Accordingly the cancellation period referred to in Regulation 2 (1) should be interpreted to mean ‘the period commencing from when the trader is required to give the consumer a writtennotice of his right to cancel pursuant to regulation 7(2) and expiring 7 days after receipt by theconsumer of a notice of the right to cancel’ [32]. On this basis Dr Robertson was within thecancellation period provided by the 2008 Regulations when he sent his letter of 1 August 2011and he was entitled to recover his deposit [34].
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.
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
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.
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.
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.
REASONS FOR THE JUDGMENT
•
The 2008 Regulations gave effect to Council Directive (85/577/EEC) (‘the Directive’). The Directive was designed to protect consumers against the risks inherent in the conclusion ofcontracts away from business premises. It requires traders to give consumers written notice oftheir right to cancel the contract at the time the contract is concluded and asks member statesto ensure through national legislation that appropriate consumer protection measures are putin place for cases where this notice is not given [8-12].
•
The Court of Appeal was correct to conclude that the 2008 Regulations applied in the circumstances of this case, and that the contract was therefore unenforceable by Mr Swift, eventhough there had been two visits to Dr Robertson’s home at his express invitation. It hadbeen open to member states to adopt provisions that were more favourable to consumers thanthose required by the Directive [17-19]. The Court of Appeal had, however, erred when itfound that Dr Robertson was not entitled to cancel the contract unless and until he had beenserved with notice of his right to cancel. The 2008 Regulations should be interpreted in thelight of the wording and purpose of the Directive [20-22, 28]. The right to cancel contractsmade at home was central to the protection afforded to consumers under the Directive and therequirement to give notice of the right to cancel was not a technical prerequisite to the exerciseof the right [23-24]. To hold that it could be nullified by a failure or refusal of a trader to givewritten notice of the right to cancel to a consumer would run directly counter to the overallpurpose of the Directive and create a considerable gap in the level of protection provided [25].
•
Accordingly the cancellation period referred to in Regulation 2 (1) should be interpreted to mean ‘the period commencing from when the trader is required to give the consumer a writtennotice of his right to cancel pursuant to regulation 7(2) and expiring 7 days after receipt by theconsumer of a notice of the right to cancel’ [32]. On this basis Dr Robertson was within thecancellation period provided by the 2008 Regulations when he sent his letter of 1 August 2011and he was entitled to recover his deposit [34].
