Consumer - 1985- 1989

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This page lists 11 cases, and was prepared on 28 October 2012.

Cavendish Woodhouse Ltd -v- Wright (1985) Tr L 40; [1985] CLY 3109; Times, 08 March 1985
8 Mar 1985 Watkins LJ	Consumer	Casemap 1 Citers
	If a salesman in a shop makes representations to say that he could supply goods identical to a sort described, the description becomes attached to the goods delivered for the purposes of the Act, and if it is false, it is a false description. The first information alleged that the Appellants applied a false description to bedroom furniture by describing it as "identical" to furniture previously shown to a Miss Crawley. The second that the Appellants had supplied to Miss Crawley bedroom furniture to which a false trade description was applied, namely "identical" to furniture previously shown to her, contrary in this case to section 1(1)(b). Miss Crawley saw a bedroom unit marked "sold". A salesman offered to supply her with a unit which was "identical". The Crown Court had held that thereby he was making an assertion of existing fact, namely that an identical unit was in stock and could be supplied to her. This was untrue. "Turning to the second information, a different circumstance has to be contemplated. We have now to look at the actual supply of the furniture . . . When it arrived at her home it was anything but identical to that which she and her mother had examined. Mr Philpott says that that does not mean to say that it bore a false trade description. True it is that through some negligence or other wrong on the part of the appellants the article as promised was not supplied, but that falls into the realm, not of a false trade description as to an existing fact, but was merely a promise made by the appellants to supply something to the customer in the future..." "What happened was, as found in the case, that the appellants did not supply to Miss Crawley an identical set of furniture. They did not disabuse Miss Crawley, at any time, either before the delivery, at the time of delivery, or, indeed, within a short time after delivery that what they had delivered was everything but identical to that which Miss Crawley had seen and approved at the appellants' premises. In that situation it seems to me that the set of furniture delivered carried with it the description given to it at the time of the agreement for sale. That is the inevitable implication, in the absence of anything said by the appellants to the contrary - and nothing was. That being so, there clearly was an offence committed here seeing that the furniture actually delivered was not identical. Accordingly, I would hold that the Crown Court was also right in this instance to uphold the conviction of the appellants upon this second information." "It cannot, I think, be gainsaid that in circumstances such as these, where suppliers of goods have made such representations as I have so far been dealing with and made no attempt whatsoever to inform the customer that they have, for no matter what reason, had to make some alteration in what it is they have promised to supply, the trade description which they have attached to the goods at the time of the agreement for sale will be carried along with them as they are supplied by the seller to the customer."
	Trade Descriptions Act 1968 1(1) 18

Brookes -v- Retail Credit Cards Ltd. (1986) CCLR 5; (1987) CLR 327
1986 QBD Lloyd LJ	Magistrates, Consumer	Casemap 1 Citers
	The defendants, a regulated consumer credit provider provided its srevices to A's customers. A's promotional materials were found to be in breach of the Act and the defendant was now prosecuted for procuring that offence. Held: The prosecutor's appeal against dismissal failed. Obiter, section 170(1) might, but did not necessarily, preclude an action. Lloyd LJ said: "The exclusion of civil sanctions other than those provided in the Act serves an obvious purpose. Exclusion of criminal sanctions is not so easy to understand. Whatever the reason for the exclusion and whatever it was intended to cover, I am clear that it does not exclude the liability of accessories".
	Consumer Credit Act 1974 170(1)

British Leyland Motor Corporation Ltd -v- Armstrong Patents Co Ltd [1986] AC 577; [1986] 2 WLR 400; [1986] 1 All ER 850; [1986] UKHL 7
1986 HL Lord Bridge, Lord Templeman	Intellectual Property, Consumer	Casemap 1 Cites 1 Citers
	The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the copyright drawings. Therefore there was infringement. Held: Copyright could not be used to prevent the manufacture or sale of spares for industrial items. Lord Bridge said that the owner of a car: "must be entitled to do whatever is necessary to keep it in running order and to effect whatever repairs may be necessary in the most economical way possible." This was a right "inherent in the ownership of the car itself". In the case of an exhaust pipe, he could exercise this right by producing a copy himself or instructing someone else ("the local blacksmith") to do so. The owners "right to repair" could be of value only if other people could manufacture copy exhausts which the motorist could acquire "in an unrestricted market". There was a "clear conflict of legal rights" between the owner's right of repair and the manufacturer's copyright. The question was which right "should prevail over the other". It was the right of the owner. Lord Templeman saw the right to repair as inalienable:- "Every owner of a car has the right to repair it. That right would be useless if suppliers of spare parts were not entitled to anticipate the need for repair. The right cannot, in my view, be withheld by the manufacturer of the car by contract with the first purchaser and cannot be withheld from any subsequent owner."
	Copyright Act 1911
	Link[s] omitted

Regina -v- Southwood [1987] 1 WLR 1361
1987	Consumer, Crime	Casemap 1 Cites 1 Citers
	Trade Descriptions Act 1968

In re Charge Card Services Ltd [1987] Ch 150
1987 ChD Millet J	Insolvency, Consumer	Casemap 1 Cites 1 Citers
	The court discussed the historic availability of set-off in an insolvency: "By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and claims to damages for future breaches of contracts existing at that date, were capable of proof and, being capable of proof, could be set off under the section provided that they arose from mutual credits or mutual dealings. The only requirement was that they must in fact have resulted in quantified money claims by the time the claim to set off was made." The conventional contractual position in a typical credit card use, involves three (or where there is an acquirer in fact four) separate contracts. The contract of supply remains a contract of sale for a price, even where the buyer chooses to satisfy that price by means of a card. Payment by card is not conditional upon anything that may or may not happen in the chain of separate contracts between the buyer, the card-issuing company and the store, since "the general understanding of the public" is "that when a customer signs the voucher he has discharged his obligations to the supplier and that he pays for the goods or services he has obtained when he pays the card-issuing company".

Bernstein -v- Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220; [1987] BTLC 37
1987 QBD Rougier J	Contract, Consumer	Casemap 1 Citers
	A car had been delivered to the buyer three weeks before the purported rejection. In the interval the purchaser had driven it 140 miles. Held: The nature of the particular defect, discovered ex post facto, and the speed with which it might have been discovered, are irrelevant to the concept of reasonable time in s35 which is directed solely to what is a reasonable practical interval in commercial terms between a buyer receiving the goods and his ability to send them back, taking into consideration from his point of view the nature of the goods and their function, and from the point of view of the seller the commercial desirability of being able to close his ledger reasonably soon after the transaction is complete. The complexity of the intended function of the goods is clearly of prime consideration. What is a reasonable time in relation to a bicycle would hardly suffice for a nuclear submarine. Rougier J: "In my judgment, the nature of the particular defect, discovered ex post facto, and the speed with which it might have been discovered, are irrelevant to the concept of reasonable time in s 35 as drafted. That section seems to me to be directed solely to what is a reasonable practical interval in commercial terms between a buyer receiving the goods and his ability to send them back, taking into consideration from his point of view the nature of the goods and their function, and from the point of view of the seller the commercial desirability of being able to close his ledger reasonably soon after the transaction is complete. The complexity of the intended function of the goods is clearly of prime consideration here. What is a reasonable time in relation to a bicycle would hardly suffice for a nuclear submarine."
	Sale of Goods Act 1979 35

R & B Customs Brokers Co Ltd -v- United Dominions Trust Ltd [1988] 1 WLR 321; [1987] EWCA Civ 3
1988 CA Dillon LJ, Neill LJ	Contract, Consumer	Casemap 1 Cites 1 Citers
	There was an issue whether or not the purchase by the plaintiff of a second-hand car was made “in the course of a business” so as to preclude the plaintiff from relying upon the provisions of the 1977 Act. Held: Speaking of Lord Keith's description of the Act in Davies v Sumner: "Lord Keith emphasised the need for some degree of regularity, and he found pointers to this in the primary purpose and long title of the Trade Descriptions Act 1968. I find pointers to a similar need for regularity under the Act of 1977, where matters merely incidental to the carrying on of a business are concerned, both in the words which I would emphasise, "in the course of" in the phrase "in the course of a business" and in the concept, or legislative purpose, which must underlie the dichotomy under the Act of 1977 between those who deal as consumers and those who deal otherwise than as consumers. This reasoning leads to the conclusion that, in the Act of 1977 also, the words “in the course of business”, are not used in what Lord Keith called “the broadest sense”. I also find helpful the phrase used by Lord Parker C.J. and quoted by Lord Keith, "an integral part of the business carried on." The reconciliation between that phrase and the need for some degree of regularity is, as I see it, as follows: there are some transactions which are clearly integral parts of the businesses concerned, and these should be held to have been carried out in the course of those businesses; this would cover, apart from much else, the instance of a one-off adventure in the nature of trade, where the transaction itself would constitute a trade or business. There are other transactions, however, such as the purchase of a car in the present case, which are at highest only incidental to the carrying on of the relevant business; here a degree of regularity is required before it can be said that they are an integral part of the business carried on, and so entered into in the course of that business.” Neill L.J noted that expression similar to "in the course of a business", were used in statutes such as the Sale of Goods Act 1979, the Trade Descriptions Act 1968 and the Supply of Goods and Services Act 1982. He noted that section 1(1) of the Trade Descriptions Act creates a criminal offence, but nonetheless thought that it would be unsatisfactory if, when dealing with broadly similar legislation, the courts were not to adopt a consistent construction of the same or similar phrases. For that reason he thought that the court should follow the guidance given in Davies v Sumner when construing section 12(1) of the Unfair Contract Terms Act.
	Unfair Contract Terms Act 1977 12(1) - Sale of Goods Act 1979
	Link[s] omitted

Forward Trust Ltd -v- Whymark [1990] 2 QB 670; [1989] 3 WLR 1229
1989 CA Lord Donaldson of Lymington MR	Consumer
	The borrower took out a fixed interest loan from the bank. It was a regulated consumer credit agreement under the 1974 Act. He defaulted, and the plaintiff sought payment of the full remaining balance. Judgment was entered for that sum. The creditor applied to be allowed to pay by instalments, but the registrar set aside the judgment, saying that it had wrongly ignored any rebate for early settlement. Held: The lender's appeal succeeded. The full balance was due on the default. No doubt any court asked to enforce the judgment might make due allowance from the acceleration included.
	Consumer Credit Act 1974 94 95 - Consumer Credit (Rebate on Early Settlement) regulations 1983 4 5

Director General of Fair Trading -v- Tobyward [1989] 2 All ER 266
1989 Hoffmann J	Media, Consumer
	The company advertised a product as assisting in permanent weight loss. The Advertising Standards Authority had found the advertisements to be misleading, but the company persisted, and referred the case to the applicant, who sought an injunction. Held: The court had jurisdiction to grant the injunction requested.
	Control of Misleading Advertisements Regulations 1988 (1988 No 915)

Lombard Tricity Finance Ltd -v- Paton [1989] 1 All ER 918
1989 CA	Consumer	Casemap 1 Citers
	The borrower challenged a variation of the interest rate to be charged on his regulated loan. The agreement purported to give the lender a full discretion to vary the rate on notice. Held: The Regulations required the agreement to identify the circumstances under which the loan might be varied. The judge at first instance was wrong to require that this be something more than the lender's 'whim'. The agreement was not wrong at common law, and the Regulations controlled the format of the agreement not its content. The notice was clear and correct, and the absolute discretion given and notified did amount to 'circumstances' within the Regulations.
	Consumer Credit (Agreements) Regulations 1983 (1983 No 1553) 2

Harlingdon and Leinster Enterprises Ltd -v- Christopher Hull Fine Art Ltd [1991] 1 QB 564; [1989] 3 WLR 13; [1990] 1 All ER 737; Times, 22 December 1989
15 Dec 1989 CA	Consumer	Casemap 1 Citers