Warwickshire County Council v Halfords Autocentres Ltd [2018] EWHC 3007 (Admin)
The appellant trading standards authority (the Council) appealed by way of case stated against the decision of the DDJ to dismiss an information laid against Halfords. The allegation was that Halfords acted contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008. The importance of the case is the proper interpretation of the regulation in the context of a test purchase.
Mr McCabe (a trading standards officer) booked a car in for a full service, with Halfords, that had already been examined by an independent engineer and the faults noted. He later collected the car and was given an invoice noting that a full service had been performed. The car was rechecked and faults noted as being neither rectified nor reported.
Halfords argued, at the lower court, that the ‘commercial practice’ on which the charge was based was restricted in the information to the giving of the invoice to Mr McCabe and he was not a ‘consumer’ within the definition of the 2008 Regulations and therefore the giving of an invoice to him could not be a prohibited ‘commercial practice’ as it was not ‘directly connected with the promotion, sale or supply of a product to or from consumers’.
The DDJ accepted the submission of no case to answer agreeing that Mr McCabe was not a consumer and therefore the giving of the invoice to him was not a commercial practice in that it was not directly or indirectly concerned with the supply of a product to or from a consumer.
Halfords advanced the same argument as in the lower court. It was accepted that if Mr McCabe had been a consumer the particulars of the offence in the information would have been adequate. The real issue in the appeal was “whether, in all the circumstances, the giving of the false invoice to Mr McCabe was an act and representation that was ‘directly connected with the promotion, sale or supply of a product to consumers’ for the purposes of article 2(d) of the Directive (Unfair Commercial Practices Directive 2005/29/EC).” The issue had to be considered in the context of the Directive as a whole and not by drawing a distinction between a representation made to a non-consumer and one made broadly to the public or a section of it.
Other parts of the 2008 Regulations are dependent upon a consumer entering into a transaction with a trader, and that is made expressly clear. Regulation 20 provides the power to make test purchases to test compliance; it would be curious to do so and then preclude certain acts within the context of a test purchase as amounting to a breach.
The view of the court was the submission that a commercial practice cannot be derived from a representation in the circumstances (that Mr McCabe was not a consumer) not only runs counter to the aims of the Directive but also has an ‘air of unreality’.
The appeal was allowed, and the decision of the DDJ quashed, the case was remitted back to the Magistrates’ Court for the prosecution to continue.
The judgment of the Court was “a commercial practice for the purposes of article 2(d) of the Directive (and thus regulation 2(1) of the 2008 Regulations) may be constituted by or derived from a test purchase made of a product (or a service) that is generally promoted to and intended for purchase by consumers, even where the purchaser himself may not be a consumer. Specifically, the giving to the test purchaser of an invoice or other document incorporating false information as to a main characteristic of the product (including the execution of a service) that would mislead the average consumer into paying for services that he has not received (which he would not otherwise have done) is a commercial practice which is a misleading action for the purposes of regulations 5 and 9 of the 2008 Regulations, being ‘directly connected with the promotion, sale or supply of a product… to consumers’.”