Tweet
attached 
17. Was the website misleading and were the terms in breach of the Unfair Terms in Consumer Contracts Regulations 1999?
I find they were for the following reasons:
1. The website on the front page purports to offer “free application and renewal advice”. There is no evidence that it was free. On Mr. Howard’s own evidence the consumer was charged to fill in his form and was further charged for the Claimant to simply check if the service could be used. The term packaging these so called “services” with others was therefore unfair.
2. The disclaimers concerning the fees excluding those due to HMPO are small and easily missed in the middle of much text. The quantity of text and size of the text means that these disclaimers are not easily seen, particularly in the context of a consumer who is making an urgent application. As a result I find there was a want of good faith in the term packaging the services to appear to include the HMPO costs which caused an imbalance in the parties’ rights and obligations to the consumer’s detriment.
3. The table at Exhibit B2 strongly indicates to the consumer that the total fee is £117.60. The word “FREE” under the column “HMPO” would suggest to the average consumer that there was nothing further to pay. I consider this to fall into an example of being a pit fall or trap for the consumer.
4. In short the terms and conditions do not make it clear exactly what services are supplied as part of the package and what are not and that these services cannot be unpicked in a menu of options. Further the terms and conditions are in a scroll down box which it is not easy for the consumer to read and no prominence is given to the terms which operate disadvantageously to the consumer.
5. For these reasons I consider the terms of the contract to be unfair.
18. Further, separately but mainly based on the same findings, I find the website misrepresented their services by: a) stating on the first page that they offer free application and renewal advice when they clearly did not do so. On Mr. Howard’s evidence there was a charge both to submit the form and for the Claimant to simply consider if the Defendant was eligible. I do not consider Mr. Howard’s explanation that this was provided free on the telephone but not on the website as plausible, nor would it be clear to the consumer that that was the case b) misrepresenting the charges payable in the Table referred to previously and prominently stating the word “FREE” in capital letters in the HMPO column thus representing the Claimant’s charges included the HMPO passport fee and c) by prominently displaying an official passport on the first page of the website misrepresenting the fact the website was not in anyway officially connected to HMPO.
19. It is clear on the evidence both in terms of the number of consumers who appear to have been misled (Mr Howard himself produced 2 separate letters from the passport office to the claimant which evidenced this) and in the ruling of the ASA, albeit it is under review, that the website has confused a significant number of people. Mr. Howard had not chosen to amend his website following the ASA ruling, even if he did not agree with it. It is hard to understand why in good faith he would not have done so. I therefore find these misrepresentations were made carelessly by the Claimant.
20. On Mr. Yates’ evidence I find he was confused by the services offered on this website and the fact that they did not include the cost of the passport itself, and further that such confusion was reasonable on his part, given the very small print of the disclaimer, the fact they were not positioned prominently at strategic places and the fact that the Table at exhibit B2 misleads the average consumer to believe there is no charge for HMPO. He also believed he was dealing with an “official” or in some way authorised HMPO website. I find he relied on these misrepresentations when entering into the contract and was therefore entitled to rescind the contract and he did so.
21. I therefore find for all these reasons that this contract is unenforceable against Mr.Yates, and that the claim fails today.
22. I do go on however to consider the arguments on cancellation. The argument as to cancellation need not be explored in detail due to my findings that I have already given. These are therefore observations only. However, I find that Mr. Yates did as a fact cancel by 11.53 by clearly communicating his cancellation and the Claimant’s evidence is this was noted at that time. Under the law Mr. Yates is only liable for a fair price for such services rendered up to the point of cancellation. I find the only services rendered were the booking of the appointment to the Passport Office and the communication of that to Mr. Yates. I do not consider any fee can be charged to Mr. Yates for the filling in of the form and for the Claimant to simply check if he is eligible for their services as in my view this does not amount to a service rendered. As such the maximum liability Mr. Yates would have to pay at the time he cancelled is £20 plus VAT based on the Claimant’s charges. I have not been produced evidence to show that any other services were actually provided before 11.53. However, as I have found that the website was misleading and the contract was not fair and indeed that there were misrepresentations on the face of the website, the contract is unenforceable in any event.
23. As a result I will dismiss this claim today.
I find they were for the following reasons:
1. The website on the front page purports to offer “free application and renewal advice”. There is no evidence that it was free. On Mr. Howard’s own evidence the consumer was charged to fill in his form and was further charged for the Claimant to simply check if the service could be used. The term packaging these so called “services” with others was therefore unfair.
2. The disclaimers concerning the fees excluding those due to HMPO are small and easily missed in the middle of much text. The quantity of text and size of the text means that these disclaimers are not easily seen, particularly in the context of a consumer who is making an urgent application. As a result I find there was a want of good faith in the term packaging the services to appear to include the HMPO costs which caused an imbalance in the parties’ rights and obligations to the consumer’s detriment.
3. The table at Exhibit B2 strongly indicates to the consumer that the total fee is £117.60. The word “FREE” under the column “HMPO” would suggest to the average consumer that there was nothing further to pay. I consider this to fall into an example of being a pit fall or trap for the consumer.
4. In short the terms and conditions do not make it clear exactly what services are supplied as part of the package and what are not and that these services cannot be unpicked in a menu of options. Further the terms and conditions are in a scroll down box which it is not easy for the consumer to read and no prominence is given to the terms which operate disadvantageously to the consumer.
5. For these reasons I consider the terms of the contract to be unfair.
18. Further, separately but mainly based on the same findings, I find the website misrepresented their services by: a) stating on the first page that they offer free application and renewal advice when they clearly did not do so. On Mr. Howard’s evidence there was a charge both to submit the form and for the Claimant to simply consider if the Defendant was eligible. I do not consider Mr. Howard’s explanation that this was provided free on the telephone but not on the website as plausible, nor would it be clear to the consumer that that was the case b) misrepresenting the charges payable in the Table referred to previously and prominently stating the word “FREE” in capital letters in the HMPO column thus representing the Claimant’s charges included the HMPO passport fee and c) by prominently displaying an official passport on the first page of the website misrepresenting the fact the website was not in anyway officially connected to HMPO.
19. It is clear on the evidence both in terms of the number of consumers who appear to have been misled (Mr Howard himself produced 2 separate letters from the passport office to the claimant which evidenced this) and in the ruling of the ASA, albeit it is under review, that the website has confused a significant number of people. Mr. Howard had not chosen to amend his website following the ASA ruling, even if he did not agree with it. It is hard to understand why in good faith he would not have done so. I therefore find these misrepresentations were made carelessly by the Claimant.
20. On Mr. Yates’ evidence I find he was confused by the services offered on this website and the fact that they did not include the cost of the passport itself, and further that such confusion was reasonable on his part, given the very small print of the disclaimer, the fact they were not positioned prominently at strategic places and the fact that the Table at exhibit B2 misleads the average consumer to believe there is no charge for HMPO. He also believed he was dealing with an “official” or in some way authorised HMPO website. I find he relied on these misrepresentations when entering into the contract and was therefore entitled to rescind the contract and he did so.
21. I therefore find for all these reasons that this contract is unenforceable against Mr.Yates, and that the claim fails today.
22. I do go on however to consider the arguments on cancellation. The argument as to cancellation need not be explored in detail due to my findings that I have already given. These are therefore observations only. However, I find that Mr. Yates did as a fact cancel by 11.53 by clearly communicating his cancellation and the Claimant’s evidence is this was noted at that time. Under the law Mr. Yates is only liable for a fair price for such services rendered up to the point of cancellation. I find the only services rendered were the booking of the appointment to the Passport Office and the communication of that to Mr. Yates. I do not consider any fee can be charged to Mr. Yates for the filling in of the form and for the Claimant to simply check if he is eligible for their services as in my view this does not amount to a service rendered. As such the maximum liability Mr. Yates would have to pay at the time he cancelled is £20 plus VAT based on the Claimant’s charges. I have not been produced evidence to show that any other services were actually provided before 11.53. However, as I have found that the website was misleading and the contract was not fair and indeed that there were misrepresentations on the face of the website, the contract is unenforceable in any event.
23. As a result I will dismiss this claim today.
