Average Consumers and reasonable care

The Court of Appeal has recently shed light on what the 'Average Consumer' should do to with regard to taking reasonable care. Alan Conroy looks at the lessons for local authorities when it comes to enforcement.

The introduction of the Consumer Protection from Unfair Trading Regulations 2008 (“the CPUTRs”) as a result of Directive 2005/29 brought with it the challenges of the ‘average consumer’. The general idea of an average consumer was not new of course and Courts occasionally referred to the concept. This though was the first time that enforcement had been made so heavily dependent on a requirement to show that the conduct complained of impacted on a decision of such a consumer or was likely to do so. Regulation 5 of the CPUTRs is a good enough example for these purposes, although there are some minor(ish) variations in the way the ‘effects tests’ are expressed in the regulations. There is no need to reproduce the whole provision here and suffice it to say the misleading action has to both deceive, or be likely to deceive, the average consumer and, further, cause, or be likely to cause, the average consumer to take a transactional decision he would not have taken otherwise.

Without that impact, or prospect of it, the infringement is not made out. Although this is not the place for a comparative consideration of laws it is interesting to note that no such requirement is contained in the parallel Business Protection from Misleading Marketing Regulations 2008 (“the BPMMRs”). In those Regulations the requirement is to show that a misleading representation is likely, through its deceptive nature, to affect the economic behaviour of traders (paraphrased). Immediately it can be seen that there is effectively a higher degree of protection afforded to traders than consumers.

The Average Consumer is not defined anywhere but the CPUTRs refer to them having the characteristics of being "….reasonably well informed, reasonably observant and circumspect." A further consideration applies to average consumers who might also be especially vulnerable by "….their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee".

It was always thought of course that no real clarity would come until there had been a consideration by the Courts. Office of Fair Trading v Purely Creative Ltd & 8 Ors [2011] EWHC examined this issue in some detail. Amongst other things the Court Held that Directive 2005/29 was concerned to protect consumers who took reasonable care of themselves, rather than the ignorant, careless or over-hasty. Reference was made to European jurisprudence where consumer protection was not intended to become so paternalistic as to constitute a barrier to the free movement of goods. The Court indicated that the appropriate test was to ascertain the combined effect of all the misleading acts and omissions and then assess whether the consumer would nonetheless have decided as he did. The Court also made a point of identifying Recital 18 to the Directive which states "National courts and authorities will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case".

Immediately we can see that the assumption that a consumer will take reasonable care is balanced by the protection against the burying of key information in small print. It is also clear that the protection for consumers is not absolute. The use of the phrase "barrier to the free movement of goods" is strongly suggestive that the underlying purpose of the Directive is the protection of markets in which consumers get a degree of protection which is at least partially dependent on their own conduct. The indication that National Authorities would have to refer to Court of Justice decisions is likely to become a matter that will be examined increasingly in future cases.

Purely Creative though said nothing about what the consumer should do with regard to the reasonable care they should take. That has changed, to an extent, in Secretary of State for Business, Innovation & Skills v PLT Anti-Marketing Ltd [2015] EWCA Civ 76. (‘Anti-Marketing’). This case had as its initial focus the issue of whether Material Information under Regulation 6 CPUTRs could be decided as a preliminary issue or whether all of the facts needed to be examined at trial. That in itself is relatively unimportant for these purposes but what emerged from this is a consideration of what information a consumer was entitled to expect from a trader. It seems clear that while information may be material the trader may not necessarily be in breach by not providing it where the consumer can find it themselves. The Court expressed the view that "….shopping around for information about alternative products (whether goods or services) is characteristic of the reasonably well-informed, observant and circumspect consumer."

Although we now have the first indication of what our average consumer should do in respect of taking care of themselves this is really only the beginning. The Court was at pains to make it clear that this expectation of shopping around was no more than a start point. It could be defeated by the overall context and must necessarily be impacted upon by a very wide range of factors.

What can be said though is that there is now a clear line of defence emerging in that the consumers concerned in any given case did not take reasonable care of themselves by shopping around. It may well be readily defeated but local authorities, who retain the main enforcement responsibilities in this area, may wish to re-visit their procedures in relation to the evidence collection to ensure that all of the factors appropriate to the given situation have been fully considered. This may well be something that regional or national organisations with an interest in this area may wish to become involved in. While it is impossible to provide for every type of goods and services there are those that stand out as being likely to benefit from some pre-emptive work.

Alan Conroy is a Consumer, Regulatory and Local Authority Barrister who formerly worked for the Office of Fair Trading. He has been in private practice since March 2010. He is currently a Tenant at 187 Fleet Street Chambers and can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it..