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Swift (trading as A Swift Move) v Robertson [2012] EWCA Civ 1074; [2013] WLR (D) 11
UPDATE: http://www.legalbeagles.info/forums/...967#post468967
Press Summary
REASONS FOR THE JUDGMENT
•
The 2008 Regulations gave effect to Council Directive (85/577/EEC) (‘the Directive’). TheDirective 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 thecircumstances 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 tomean ‘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].
UPDATE: http://www.legalbeagles.info/forums/...967#post468967
Press Summary
REASONS FOR THE JUDGMENT
•
The 2008 Regulations gave effect to Council Directive (85/577/EEC) (‘the Directive’). TheDirective 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 thecircumstances 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 tomean ‘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].
