Warwickshire County Council v Halfords Autocentres Ltd

A commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 may arise from a test purchase of a consumer product or service, even where the purchaser is an enforcement officer rather than a consumer. The relevant question is whether the act or representation is directly connected with the promotion, sale or supply of products to consumers generally. A false invoice stating that a service was performed may therefore constitute a misleading action where it would cause, or be likely to cause, the average consumer to pay for services not received. The regime is directed at commercial practices and systems, not only completed transactions with particular consumers.

Warwickshire County Council appealed by way of case stated from the decision of Deputy District Judge Noble, who dismissed an information against Halfords Autocentres Ltd. The Council alleged that Halfords had issued a false invoice after a trading standards officer made a test purchase of a vehicle service. The invoice stated that a full service had been carried out, although defects had neither been repaired nor reported.

The Deputy District Judge held that the officer was not a consumer and that issuing the invoice to him was not a commercial practice within regulation 2(1) of the Consumer Protection from Unfair Trading Regulations 2008. The central issue was whether a misleading representation made during a test purchase could fall within the Regulations despite the purchaser not being a consumer.

1. Appeal allowed. The order dismissing the charge and inconsistent findings were quashed. The matter was remitted to the Magistrates’ Court for the prosecution to continue.
2. The phrase “commercial practice” in article 2(d) of the Directive and regulation 2(1) of the Consumer Protection from Unfair Trading Regulations 2008 required an independent and uniform, purposive interpretation. The legislation was concerned with practices affecting consumers generally, rather than only particular transactions with identified consumers. A commercial practice could arise from a single act or representation.
3. A test purchase could constitute, or evidence, a commercial practice where the product or service was generally promoted to and intended for consumers, even if the purchaser was not himself a consumer. The purchaser’s status did not remove the direct connection between the representation and the supply of the service to consumers.
4. The invoice contained false information about a main characteristic of the service, namely its execution. On the findings below, it was capable of misleading the average consumer into paying for work that had not been performed. It therefore amounted to a misleading action for the purposes of regulations 5 and 9.
5. This construction was supported by the preventive purpose of the regime, the availability of test-purchase powers, the due diligence defence in regulation 17, and the need for effective enforcement. It avoided the arbitrary result that a trader could escape liability merely because an enforcement officer, rather than an ordinary consumer, detected the practice.
6. It was unnecessary to determine whether the officer was a consumer. The application for a reference to the Court of Justice under article 267 of the Treaty on the Functioning of the European Union was refused because the applicable construction was sufficiently clear.

• High Court (Administrative Court): appeal by way of case stated allowed. The dismissal by Deputy District Judge Noble dated 14 February 2018 was quashed, and the matter was remitted to the Magistrates’ Court.