Traders who engage in commercial practices that are likely to mislead an average consumer are subject to criminal sanction – but what if the ‘customer’ concerned is not a consumer but a trading standards officer? The High Court considered that issue in a case of particular importance to retailers.
Using an assumed name, a local authority trading standards officer put a vehicle in for service at a garage. The car had previously been noted to have several faults and others had been deliberately introduced. The officer paid £210 for what was described on the invoice as a full service. However, subsequent examination revealed that various faults in the vehicle had neither been reported nor rectified.
When questioned under caution, a solicitor employed by the company that owned the garage accepted that the service had been performed by an apprentice and that he had not been properly supervised. It was also conceded that eight defects in the vehicle had persisted following the service.
After the council launched a prosecution under the Consumer Protection from Unfair Trading Regulations 2008, a judge accepted that the invoice was misleading in that a full service had not been carried out. However, in ruling that the company had no case to answer, he found that the officer could not be viewed as a consumer with the meaning of the Regulations. The act of handing him the invoice was thus not a commercial practice in that it was not directly or indirectly concerned with the supply of a product to a consumer.
In upholding the council’s appeal against that ruling, the Court found that the judge had interpreted the Regulations too narrowly. It was unconvinced that the distinction he drew between a representation made broadly to the public or a section of the public on the one hand, and a representation made uniquely to a trading standards officer on the other, was valid.
The Court noted that a failure to perform vehicle servicing adequately poses clear public safety risks. The officer was acting in his official capacity, but was pretending to be a consumer in a test purchase strategy that was designed to test the company’s quality of service. The garage believed him to be a consumer and treated him as such.
In the circumstances, it was difficult to see what policy purpose would be achieved by a finding that the misrepresentation in the invoice was not a commercial practice that could found enforcement measures. The case was sent back to the judge with a direction that the trial should continue.