Time to be civil?

Local authority trading standards and legal teams should make much greater use of consumer protection provisions in the Enterprise Act 2002, argues Alan Conroy.

One of the great lost opportunities in consumer protection has been the patchy take up of Part 8 of the Enterprise Act 2002 (“the EA2002”). The core of this legislation is the power to seek Orders from the Court to halt a wide range of breaches of both criminal and civil consumer protection law. Referred to as Enforcement Orders they are injunctions in all but name in the English jurisdiction and with close parallels to the Scottish injunctive type orders.

The scope of the legislation was massively increased with the introduction of the Consumer Protection from Unfair Trading Regulations 2008 (“the CPUTRs”) and this principally criminal law can also be enforced  using the injunctive route provided for in the EA2002. The CPUTRs of course make it an offence to do almost anything which misleads, withholds information from or is aggressive towards a consumer. It applies before, during and after sale and is so drafted to make it almost impossible to evade its provisions without committing one or more offences. Contained within the CPUTRs is a provision dealing with a failure of a trader to act with ‘professional diligence’ which provides a valuable catch-all provision as well as some degree of future proofing against similar nature offending. Further to these provisions Schedule 1 to the CPUTRs contains a list of 31 practices deemed so pernicious that they are banned outright.

Many trading practices are of course deliberately dishonest rather than simply incompetent and there will be many cases where prosecution is not only justified but demanded. The difficulty though is that the criminal law makes no provision for urgency and the process will take its course while allowing the trader to continue damaging consumers. Even when convicted many of these offences are often punished by what can appear to be inexplicably low fines. The Enforcement Order does not of course punish but is to prevent repetition of past or current breaches. In the case of what are known as Community Infringements future breach can be prevented even where there have been no past instances of infringement. Breach of a Court Order may well attract imprisonment for contempt and, unlike the criminal process, a repeat breach rarely is addressed with another fine.

As with all injunctive relief there are available Interim Orders and so where serious trading malpractice arises it can often be stopped within a matter of days. Local authorities should have confidence in this process as the procedures are not radically different to the seeking of any other form of Injunction. The value lies not only in providing quick remedies but it also allows the opportunity for local government to show its ability to protect the vulnerable in a very visible and cost effective way. Many of the consumers targeted by the worst traders are often vulnerable and anyone at all can potentially be a victim.

Many local authorities do use the EA2002 and with great success. Unfortunately there has grown up myth and misunderstanding around it and it is all too often seen as expensive and time consuming. It need be neither of those things if handled correctly but its success depends heavily on there being close understanding between the TSDs and the local authority lawyers. While there is still talk of allowing appropriately qualified and experienced TSOs rights of audience in the civil courts it has not happened yet and does not appear imminent. Even if such rights are introduced it will not provide a definitive solution because the issues that surround civil litigation go far beyond who actually conducts it in Court.

All public bodies will have an eye to ensuring that resources are appropriately targeted to begin with and then that only such resources as are necessary continue to be used. One way in which the EA2008 can assist in this regard is through greater use of the information gathering powers contained within s225. Notices can be used, against any person, to obtain information that may help an Enforcer to “… exercise or to consider whether to exercise any function it has under this Part “(Part 8 EA2002).

This means that where concerns arise about trading behaviour, relevant information can be obtained before any signifcant commitment of investigation resources. This means that objective decisions can be made very early about the need for investigation at all or if there is a need the likely scale of it. Where information is refused then that of itself can often be the trigger for further investigation but based on something solid rather than a hunch. There are even more powerful information gathering provisions where Community Infringements are concerned and these too can help avoid wasted time, and money of course, in wondering whether a proper case exists.

There is also great flexibility in the way in which the civil provisions of the EA2002 can be used alongside the criminal process. Almost all of the things that are done in a criminal investigation can be used to support a civil action if needed which means that there is no need (in the majority of cases) to start again where a decision is taken to say seek an urgent Enforcement Order.

Given the strain on budgets and the very real concerns not only about the use of scarce resources but also how their use is viewed by tax payers this may be a law whose time has come. There is a great deal of help available in this area for the Trading Standards Service and their in-council legal advisers. A dedicated LinkedIn Group is available for technical discussions and there is much in the way of free training material including precedents. Anyone interested is invited to contact me at This email address is being protected from spambots. You need JavaScript enabled to view it. or via Linked In.

Alan Conroy spent some 20 years at the OFT before leaving in March 2010 to go into private practice at 7 Bell Yard Chambers. For the last nine of those years he had the principal responsibility for assisting the Trading Standards Service with use of the EA2002, the CPUTRs and certain other legislation. He is a Member of the TSI and has contributed to publications including the latest version of Trading Standards Law & Practice.