01 Oct 2014

Case Comment: Robertson v Swift

Case Comment: Robertson v Swift

Kim McLeod, Solicitor, examines a recent Supreme Court decision concerning consumer rights legislation. 

Kim McLeod, Solicitor, examines a recent Supreme Court decision concerning consumer rights legislation. 

The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008 (“the Regulations”) apply to most contracts entered into between a consumer and a trader for the supply of goods or services during a visit by the trader to the consumer’s home or place of work, or to the home of another individual.  In order to be caught by the Regulations, the value of the goods or services must be more than £35.  Where the Regulations apply, the trader must provide a consumer with a written notice of their right to cancel the contract at the time the contract is made.  The consumer has a 7 day cancellation period, starting from the date the notice of the right to cancel is given. 

The recent Supreme Court decision in Robertson (Appellant) v Swift (Respondent) [2014] UKSC 50 provides greater clarification on the application of the Regulations.  

Mr Swift owns a removal business. On 27 July 2011, Dr Robertson telephoned Mr Swift to ask for a quotation for removal services to be carried out on 2 August 2011. Mr Swift visited Dr Robertson at his home the next day to inspect the items to be moved.  Whilst at Dr Robertson’s home the two men agreed the price for the services of £7,595.40. Mr Swift then emailed a contract, which Dr Robertson signed and handed to Mr Swift on his second visit to the house later that day, whilst delivering packing materials. This document provided charges due in the event of cancellation by Dr Robertson less than 10 days before the date of removal.  Dr Robertson paid a deposit of £1,000. 

Dr Robertson later made enquiries of other removal firms and found one which could carry out the same service cheaper. He telephoned Mr Swift to tell him he wished to cancel the contract, and sent him a letter giving notice of cancellation on 1 August 2011. He refused to pay the cancellation charges on the ground that he had been entitled to cancel the contract under the Regulations.  When Mr Swift raised court proceedings, Dr Robertson denied liability and counterclaimed for the return of his £1,000 deposit.

The five Supreme Court judges unanimously held that Dr Robertson was entitled to recover the deposit.  In doing so, the Supreme Court overturned the judgment of the Court of Appeal which had the effect of depriving a consumer of the right to cancel a contract where a trader wrongfully failed to give the consumer notice of their cancellation rights. The Supreme Court held that the overall purpose of the Directive is to enhance consumer protection, so that overarching principle must guide interpretation of the Regulations.  To hold that the consumer did not have the right to cancel because the trader had failed to serve written notice of  such a right would run directly counter to the overall purpose of the Directive (ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences). The Supreme Court was of the opinion that, in the event that no such notice was served, the notice period would never expire and it would be possible for the consumer to cancel at any time. 

Consumers will welcome this clarification of the protection afforded to them under the Regulations.  However, contractors such as builders and plumbers, who often finalise a contract at the client’s home, should take note of this decision and the effect of the Regulations.  If a contract is to be concluded at a consumer’s home, written notice of the right to cancel should be provided at the earliest opportunity.  

Kim McLeod, Solicitor 

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