Robertson v Swift

A contract for goods or services is made during a trader’s visit to a consumer’s home if that is where the parties become legally committed. The expression “a visit” does not require all negotiations and conclusion to occur in one uninterrupted visit.

Under the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008, failure to give the required written cancellation notice makes the contract unenforceable against the consumer. It does not itself create a cancellation period or entitle the consumer to recover money already paid. Regulations extending protection beyond the minimum required by an EU directive were within the domestic powers conferred by the European Communities Act 1972 and the Consumers, Estate Agents and Redress Act 2007.

The householder engaged a removal firm after the proprietor visited his home twice on the same day. The price was agreed at the first visit and a written acceptance was signed during the second. The householder later cancelled, having obtained a cheaper quotation. The firm claimed a contractual cancellation charge. The householder counterclaimed for return of his deposit, relying on the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008.

A deputy district judge, and then His Honour Judge Tyzack QC on appeal, held that the Regulations did not apply because the contract had been made over two visits. The householder appealed. The central issues were the meaning of “during a visit”, the vires of the 2008 Regulations, and the financial consequences of non-compliance with the notice requirements.

1. Appeal allowed in part. Jackson LJ, with whom Lewison and Mummery LJJ agreed, held that the agreement fell within paragraph 5(a) of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008. The judgment for the removal firm’s cancellation charge was set aside. The dismissal of the householder’s counterclaim for the deposit was upheld.
2. Paragraph 5(a) focuses on when and where the consumer becomes legally committed. A contract made at the consumer’s home remains within the provision even if earlier negotiations occurred during a separate visit. The indefinite article in “a visit” does not confine the contractual process to one visit. The identical expression in paragraph 5(c) supported that construction.
3. The trader had not supplied the written notice required by paragraph 7(2). Under paragraph 7(6), the agreement was therefore unenforceable against the consumer. The trader could not enforce the contractual cancellation charge, notwithstanding the court’s view that the result was commercially unattractive in the circumstances.
4. The wider scope of the 2008 Regulations was not ultra vires. Section 59 of the Consumers, Estate Agents and Redress Act 2007, read with section 2(2) of the European Communities Act 1972, authorised regulations concerning solicited home visits. Article 8 of Council Directive 85/577/EEC also permitted more favourable domestic consumer protection.
5. Non-service of the notice meant that no cancellation period began. The consumer consequently had no statutory right to cancel under paragraph 7(1), and paragraph 10(1) did not require repayment of the deposit. The contract remained alive but unenforceable against the consumer. Nor was there a total failure of consideration, since the trader had made urgent arrangements and financial commitments to perform the removal.

• Court of Appeal (Civil Division) — in [2012] EWCA Civ 1794, allowed the appeal against the claim and set aside the cancellation-charge judgment, but dismissed the appeal against the counterclaim.
• County Court, His Honour Judge Tyzack QC — dismissed the householder’s appeal from the deputy district judge, holding that the 2008 Regulations did not apply because the contract was made over two visits.
• Exeter County Court, Deputy District Judge Batstone — gave judgment for the removal firm’s claim and dismissed the counterclaim on the same construction of the 2008 Regulations.