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Consumer protection boost proposed by Law Commissions

28 March 2012

Consumers should have a new legal right of redress against traders who carry out misleading or aggressive practices, according to the Law Commissions for Scotland and for England & Wales in a joint report published today.

The law reform bodies recommend that aggrieved consumers would be entitled to a refund, or a discount on the price, and possibly to damages if the unfair practice caused additional loss.

Scams and rip-offs are common, the Commissions say. A large proportion of the victims are among the most vulnerable in society, with housebound and older people facing a particular threat from high-pressure doorstep selling. But under existing laws it is difficult, if not impossible, for consumers to get their money back.

While the Commissions say the Consumer Protection from Unfair Trading Regulations 2008 should continue to govern public enforcement against malpractice, they propose a new Act to cover the private law consequences, limited to business-to-consumer dealings and applying where a contract or a payment by the consumer has resulted.

The consumer would need to show that:

  1. the trader carried out a misleading or aggressive practice;
  2. this was likely to cause the average consumer to take a decision to enter into a contract or make a payment they would not have taken otherwise; and
  3. the misleading or aggressive practice was a significant factor in the consumer’s own decision to enter into the contract or make the payment.


Once liability has been established, the consumer would be entitled to unwind the contract or receive a discount on the price. A consumer who could show further actual loss might also be awarded damages.

Law Commissioner David Hertzell said: “Recent research by the Office of Fair Trading shows that elderly and vulnerable consumers are being systematically targeted by these unfair trading practices. We have an ageing population and, without reform, this victimisation of the vulnerable can only get worse.

"By simplifying the law, our recommended reforms will give more confidence to consumers and help drive rogue traders out of the market place, where currently they damage the reputation and livelihood of good, honest businesses.”

Scottish Law Commissioner Professor Hector MacQueen added: “Consultees strongly supported our reforms. We hope that our recommendations will be included in the Government's proposed Consumer Bill of Rights.”

Which? executive director Richard Lloyd said the recommendations represented a step forward for consumer rights, adding: "We look forward to the Government implementing these reforms and giving consumers the better protection they need against rogue traders."

Click here to access the report.

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D Gallant

Sunday April 1, 2012, 17:13

This does not address the very common situation where software is downloaded and paid for online but does not do what it is claimed in the advertising. There is invariably a disclaimer that says goods are purchased entirely at own risk with no guarantees and that the contract is subject to the exclusive jurisdiction of the laws of the State of New York.

Trying to claim from credit card provider is useless because they simply point out that consumer agreed to indemnify supplier from providing faulty goods. Where payment is in instalments, credit card provider refuses to cancel payments on the grounds that payment authorisation was indefinite and irrevocable.

Some contracts even say "The purchaser has the right to choose the jurisdiction that will apply, and by accepting this contract the purchaser is deemed to have chosen the exclusive jurisdiction of the courts of the State of New York."

We need much better consumer protection laws for online purchases where the supplier is not in UK.