POOL & SPA INDUSTRY
The Consumer Rights Act 2015 – Are You Ready?
With new rules in effect from the start of October, Michael Hiscock, a Senior Associate at commercial law firm Wright Hassall, takes a look at how the changes in the new Consumer Rights Act affect businesses supplying UK customers
O
n Thursday 1 October 2015, the new Consumer Rights Act 2015 changed the rules relating to supply of goods, services and digital content to consumers within contracts made on or after that date. If you are a trader, do you know what arguments you might face from consumers?
Are you supplying goods, services, digital content or a combination of them? Some concepts are similar to previous laws – for example the service must be provided with reasonable skill and care, for a reasonable price and within a reasonable time. These are tried and tested contract principles which are implied by law into a contract where the contract does not expressly define when, how and how much.
If you are selling goods, they must be satisfactory quality, achieve any pre agreed purpose, match the sample/description, be installed correctly and allow a time period to reject the goods and get a refund (which period must be no less 30 days). All sound relatively familiar so far? Here is the first big warning – did you also know the status of voluntary statements given to consumers has changed? If the consumer can prove that it relied on the trader’s spoken or written statements when deciding whether to sign the contract or making decisions about service delivery, then that statement is a binding contractual term. Have you looked at your brochures and website where you say that you are the best people for the job?
So you have checked your website and
told your staff to keep quiet and offer a replacement without admitting liability – but what about the terms and conditions that you issue automatically whenever you quote? You may have heard about the “battle of the forms” and you want your terms to apply, so they are attached to every quote you give and visible on the website hyperlink. Your sales team have been trained to do that. But are the contract terms ‘prominent’? The Act says that any key terms must be prominent – that means plain language, easily understandable and brought to the consumer’s attention in a way that would allow the average customer to be aware of them and make an informed decision. Transparent is not the same as prominent. If your terms are not prominent you will have a hard job to show that they were reasonable and prove that everyone understood the deal they were doing. Here is the next big warning. When selling goods, you have one chance to repair or replace defective goods, whereupon the consumer can escalate his remedies to a permanent right to reject or a price reduction. The Act is trying to stamp out the situations you see on Watchdog where the saga goes on and on.
So then you think, courts are objective so they will look at all the issues. However the Act forces the courts to consider whether the contract is unfair – even if no one says it is unfair. So you could find a judge saying to a consumer – “you didn’t plead unfairness, but it doesn’t matter, it is unfair so you win”.
So then you fall back on the
So you need to be checking your procedures now and clarifying with the
customer exactly what they want and how you are going to deliver it. Don’t assume anything. Look at it from the customer’s perspective”
34 December 2015 SPN
businessman’s friend – the limitation of liability. Your terms and conditions have a big, bold, underlined, highlighted, limit of liability, so how bad can things get? Very bad, if you have tried to exclude or limit liability for not satisfactory quality, not matching the sample, not as described, not meeting stipulated purpose and not reasonable skill and care. The Act will strike these exclusions out of your contract. Finally clients often ask – at what level should I limit my liability? Now I can say – it is illegal to prevent a consumer from recovering the price paid. One can see how this fits with unscrupulous shops. How does this all fit with building contractors constructing domestic premises? How will the courts interpret liability limits for multi million pound houses or sophisticated systems within them?
Don’t forget that this Act is additional to existing legal concepts such negligence, misrepresentation, statutory rights of third parties, minimum pre contract information and injury from defective products. So you need to be checking your procedures now and clarifying with the customer exactly what they want and how you are going to deliver it. Don’t assume anything. Look at it from the customer’s perspective. Never underestimate the importance of getting consumer law right!
There is support on hand via the industry associations, SPATA and BISHTA. Members have access to a library of guidance factsheets as well as being able to call upon industry experts for advice and guidance when it comes to ensuring your company is operating within current laws. If you are interested in becoming a member visit
www.spata.co.uk and/or
www.bishta.co.uk.
Wright Hassall 01926 880739
www.wrighthassall.co.uk
www.swimmingpoolnews.co.uk
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