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Fair Trading legislation

Introduction
Sale of Goods Act 1979
Trading Schemes Act 1996
Trade Descriptions Act 1968
Consumer Protection Act 1987 Part III
Price Marking Order 1999
Consumer Credit Act 1974
Consumer Credit (Advertisements) Regulations 1989
Property Misdescriptions Act 1991
Timeshare Act 1992
Trade Marks Act 1994
Copyright Designs and Patents Act 1988

Introduction

Fair Trading legislation, such as the Trade Descriptions Act 1968, Fair Trading Act 1973, Consumer Credit Act 1974, and Consumer Protection Act 1987, has been the major 'growth' area for the trading standards service since the late 1960s, with an enormous added responsibility for ensuring 'truthfulness in trade'
Controlling the framework in which businesses operate has enabled the trading standards service to ensure that both consumers and businesses are protected in an ever faster changing society, where the purchaser is no longer always able to rely on his/her own judgement when buying goods and services.
The most common areas of consumer fraud investigated by Trading Standards Departments are undoubtedly car 'clocking' and counterfeits/trade mark infringements.
A lot of resources are put into catching car clockers and it is estimated that up to 25% of all second hand cars will have been subject to some misdescription at some time in their life, costing the consumer millions of pounds.
Interestingly not only dealers are prosecuted for this offence; private motorists can be liable if they misdescribe their car to a buyer and it is subsequently sold through a dealer.
The counterfeiting problem is an ever increasing one with almost all types of goods liable to forgery, from watches, to audio and video cassettes, to perfumes, food, and even medicines.
Many industries have private companies who look after their interests, for example the Federation against Software Theft, and help trading standards authorities where they can.

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Price Marking Order 1999

You can see the full text of the Order on the HMSO website

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Sale of Goods Act 1979

The Sale and Supply of Goods Act 1994 which made considerable amendment to this legislation can be viewed on the HMSO website.

This Act is one of the most important and oft used pieces of legislation in the consumer protection world, most usually used by consumers wishing to exercise their implied rights after purchasing faulty goods.
The Act has been substantially amended by the Sale and Supply of Goods Act 1994 for contracts made on or after 3 January 1995, perhaps most notably the substitution of satisfactory condition for the previous implied term of merchantability. For the purposes of consumer and trading law the sections in the 1979 Act of most importance in consumer transactions are, ss 11–14, and 34–35 which are outlined below. While this Act is concerned purely with the civil law of consumer and business sale transactions, a consumer may have also been the victim of an offence under the Trade Descriptions Act 1968 where a trader misdescribes the goods sold and criminal action may be taken by local authority Trading Standards Officers.

Section 11 When condition to be treated as warranty

  1. This section does not apply to Scotland.
  2. Where a contract of sale is subject to a condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.
  3. Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract; and a stipulation may be a condition, though called a warranty in the contract.
  4. Subject to section 35A below, where a contract of sale is not severable and the buyer has accepted the goods or part of them, the breach of a condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is an express or implied term of the contract to that effect.
  5. Repealed by the 1994 Act.
  6. Nothing in this section affects a condition or warranty whose fulfilment is excused by law by reason of impossibility or otherwise.
Section 12 Implied terms about title etc
  1. In a contract of sale, other than one to which subsection (3) below applies, there is an implied term on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a right at the time when the property is to pass.
  2. In a contract of sale, other than one to which subsection (3) below applies, there is also an implied term that
    • the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made, and
    • the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known.
  3. This subsection applies to a contract of sale in the case of which there appears from the contract or is to be inferred from its circumstances an intention that the seller should transfer only such title as he or a third person may have.
  4. In a contract to which subsection (3) above applies there is an implied term that all charges or encumbrances known to the seller and not known to the buyer have been disclosed to the buyer before the contract is made.
  5. In a contract to which subsection (3) above applies there is also an implied term that none of the following will disturb the buyer's quiet possession of the goods, namely:
    1. the seller;
    2. in a case where the parties to the contract intend that the seller should transfer only such title as a third person may have, that person;
    3. anyone claiming through or under the seller or that third person otherwise than under a charge or encumbrance disclosed or known to the buyer before the contract is made.
  6. As regards England and Wales and Northern Ireland, the term implied by subsection (1) above is a condition and the terms implied by subsections (2), (4) and (5) above are warranties.
Section 13 Sale by description
  1. Where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with the description.
  2. As regards England and Wales and Northern Ireland, the term implied by subsection (1) above is a condition.
  3. If the sale is by sample as well as by description it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
  4. A sale of goods is not prevented from being a sale by description by reason only that, being exposed for sale or hire, they are selected by the buyer.
  5. Paragraph 4 of Schedule 1 below applies in relation to a contract made before 18 May 1973. (not reproduced here)
Comment
Where the seller sells goods by reference to a description of them, the buyer should have a remedy if the goods fail to comply with the description. It could be argued that the description should be regarded as an express term, but section 13(1) categories it as an implied term.

Goods by description
In the House of Lords decision in Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, [1971] 1 All ER 847, it clear that it is desirable where possible to draw a line between the description of goods and their purpose or quality. In that case a sale took place of 'King Size' mink food by the compounders of the food to the appellant mink farmer. The herring meal from which, in part, the mink food was compounded, contained a preservative which produced dimethylnitrosamine (DMNA), highly toxic to mink and from which a number of the appellant's animals died. The House of Lords held that there had been breaches of the implied conditions of fitness for purpose and merchantable quality, but not of description. As Lord Wilberforce remarked, sellers who told buyers what the compound was could only have said that the relevant ingredient was herring meal and, therefore, that there was no failure to correspond with description. Clearly, however, in other cases there may be a degree of overlap between 'description' covered by s 13 and 'quality and purpose' covered by s 14.

Subsection (2)
Where the sale is by sample and by description this subsection confirms that the goods must still correspond with the description. Conversely where the sale is by sample only the buyer is only entitled to goods of the same description as the sample.

Section 14 Implied terms about quality or fitness

  1. Except as provided by this section and section 15 below and subject to any other enactment, there is no implied term about the quality or fitness for any particular purpose of goods supplied under a contract of sale.
  2. Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.
  3. For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
  4. For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods –
    1. fitness for all the purposes for which goods of the kind in question are commonly supplied,
    2. appearance and finish,
    3. freedom from minor defects,
    4. safety, and
    5. durability.
  5. The term implied by subsection (2) above does not extend to any matter making the quality of goods satisfactory –
    1. which is specifically drawn to the buyer's attention before the contract is made,
    2. where the buyer examines the goods before the contract is made, which that examination ought to reveal, or
    3. in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.
  6. Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known –
    1. to the seller, or
    2. where the purchase price or part of it is payable by instalments and the goods were previously sold by a credit-broker to the seller, to that credit-broker, any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgement of the seller or credit-broker.
  7. An implied term about quality or fitness for a particular purpose may be annexed to a contract of sale by usage.
  8. The preceding provisions of this section apply to a sale by a person who in the course of a business is acting as agent for another as they apply to a sale by a principal in the course of a business, except where that other is not selling in the course of a business and either the buyer knows that fact or reasonable steps are taken to bring it to the notice of the buyer before the contract is made.
  9. As regards England and Wales and Northern Ireland, the terms implied by subsections (2) and (3) above are conditions.
  10. Paragraph 5 of Schedule 1 below applies in relation to a contract made on or after 18 May 1973 and before the appointed day, and paragraph 6 in relation to one made before 18 May 1973.
  11. In subsection (7) above and paragraph 5 of Schedule 1 below references to the appointed day are to the day appointed for the purposes of those provisions by an order of the Secretary of State made by statutory instrument.
Definitions A 'seller' is a person who sells or agrees to sell goods, and a 'buyer' means a person who buys or agrees to buy goods
'Business' includes a profession and the activities of any government department (including a Northern Ireland department) or local or public authority.
'Business' is a critical definition for both 14(2) (satisfactory quality) and 14(3) (fitness for purpose). The phrase clearly excludes sales by private persons, being the primary reason for the Business Advertisements (Disclosure) Order 1977, in that a business seller could otherwise masquerade as a private seller thus leading the buyer to believe that s 14 was inapplicable to the transaction.
'consumer contract' has the same meaning as in section 25(1) of the Unfair Contract Terms Act 1977; and for the purposes of this Act the onus of proving that a contract is not to be regarded as a consumer contract shall lie on the seller.
A 'contract of sale' of goods is defined as 'a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price'.
'Goods' are defined as including all personal chattels other than things in action and money, and in Scotland all corporeal moveables except money; and in particular goods include 'emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale
'Warranty' (as regards England, Wales and Northern Ireland) means 'an agreement with reference to goods which are the subject of a contract of sale but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated'
'Satisfactory quality' was introduced into s 14 by the Sale and Supply of Goods Act 1994 and applies to all contracts made on or after 3 January 1995. To determine whether or not goods are of satisfactory quality reference has to be made to sub-ss (2A) and (2B). If the implied term is broken then remedies are available to the purchaser . It is, however, to be remembered that in cases where goods are found to be of satisfactory quality, then there is no breach of an implied term relating to quality and, as according to sub-s (1) there are no other implied terms relating to quality, in the absence of any express term, no remedy is available.
The courts have examined the issue of merchantable quality in relation to new cars. In Bernstein v Pamsons Motors (Golders Green) Ltd [1987] 2 All ER 220, [1987] BTLC 37, QBD, the court indicated that the expectations of the buyer of a new car depended upon a number of factors. These included the 'intractability of a defect which was very difficult to find and rectify', the time any repair took, the risk of knock-on effects and the price of the car. Two factors especially led the judge to decide that a car whose engine seized up after 140 miles was unmerchantable: the potential danger and the risk of knock-on damage.
Second-hand goods involved a great deal more flexibility of treatment, since used goods may be expected to be less efficient or less long lasting than new goods and this is reflected in the price. But the courts applied the condition of merchantability to second-hand goods, where appropriate. Lord Denning suggested that merchantability 'means, that on the sale of a second-hand car, it is merchantable if it is in usable condition, even though not perfect ... A buyer should realise that, when he buys a second-hand car, defects may appear sooner or later; and in the absence of express warranty, he has no redress.'

Subsection (2A)
This provides the core definition of satisfactory quality for the purposes of the implied term under sub-s (2). The references to description, price and other relevant circumstances echo part of the definition of merchantable quality under the former sub-s (6). The test to be applied is an objective one – the standard of the reasonable person. This means that, although the purchaser may not consider that the goods are of satisfactory quality, it is only if a reasonable purchaser would reach the same conclusion that the implied term of satisfactory quality will be breached. Whilst safety was considered part of the requirements of merchantable quality, no specific statutory reference had previously been made to it. Goods should be reasonably safe when being used for their normal purposes.
Where a buyer examines the goods before the contract is made, then the buyer cannot complain about defects which that examination should reveal. If the buyer makes no examination then the implied term of satisfactory quality operates, without qualification.
The goods need only be reasonably fit for the purpose, but the seller is strictly liable if they are not.

Section 34 Buyer's right of examining the goods

  1. [Repealed].
  2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound on request to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract and in the case of a contract for sale by sample, of comparing the bulk with the sample
The concept of 'acceptance' is crucial to the buyer's right to reject for breach of the implied conditions in ss 13–15 discussed above. If the buyer has accepted the goods his remedy is normally limited to a claim for damages.

Secion 35 Acceptance

  1. The buyer is deemed to have accepted the goods [subject to subsection (2) below –
    1. when he intimates to the seller that he has accepted them, or
    2. when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.
  2. Where goods are delivered to the buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose –
    • of ascertaining whether they are in conformity with the contract, and
    • in the case of a contract for sale by sample, of comparing the bulk with the sample.
  3. Where the buyer deals as consumer or (in Scotland) the contract of sale is a consumer contract, the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.
  4. The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them.
  5. The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.
  6. The buyer is not by virtue of this section deemed to have accepted the goods merely because –
    1. he asks for, or agrees to, their repair by or under an arrangement with the seller, or
    2. the goods are delivered to another under a sub-sale or other disposition.
  7. Where the contract is for the sale of goods making one or more commercial units, a buyer accepting any goods included in a unit is deemed to have accepted all the goods making the unit; and in this subsection 'commercial unit' means a unit division of which would materially impair the value of the goods or the character of the unit.
  8. Paragraph 10 of Schedule 1 below applies in relation to a contract made before 22 April 1976 or (in the application of this Act to Northern Ireland) 28 July 1967.
General This section indicates in what circumstances a buyer will be deemed to have 'accepted' the goods which he has purchased, thereby losing any right to reject for breach of a condition under s 11 (4).
There are three main situations in which acceptance takes place:
  1. where acceptance is intimated
  2. where there is an act inconsistent with the seller's ownership
  3. where there has been a lapse of a reasonable time
Subsection (2)
The effect of sub-section (2) is to make it clear that, in cases of delivery of goods to a buyer, where no previous examination has occurred, acceptance by intimation or inconsistent act cannot take place until the buyer has had a reasonable opportunity of examining the goods to check conformity with the contract and conformity with sample.
A particular problem is that of goods bought a considerable period in advance of use, for example advance Christmas presents. It is not clear what effect a delayed inspection would have on the question of acceptance.

It would be possible for a business buyer to contract out of the provisions of sub-s (2), subject to the requirements of the Unfair Contract Terms Act 1977, but in the case of a consumer buyer it is not possible to take away his rights under sub-s (2). Reference is made to 'agreement, waiver or otherwise' and is intended to cover oral and written attempts and to apply to estoppel and personal bar as well as express agreements and waiver. The most problematic example under the previous law was that of acceptance or delivery notes, which could be viewed as intimations of acceptance signed before the buyer had had an opportunity to examine the goods. The net effect of sub-ss (1), (2) and (3) is to prevent a consumer buyer losing his right to reject when goods are delivered, unexamined, even if he signs an acceptance or delivery note.

Section 35A Right of partial rejection

  1. If the buyer –
    • has the right to reject the goods by reason of a breach on the part of the seller that affect some or all of them, but
    • accepts some of the goods, including, where there are any goods unaffected by the breach, all such goods, he does not by accepting them lose his right to reject the rest.
  2. In the case of a buyer having the right to reject an instalment of goods, subsection (1) above applies as if references to the goods were references to the goods comprised in the instalment.
  3. For the purposes of subsection (1) above, goods are affected by a breach if by reason of the breach they are not in conformity with the contract.
  4. This section applies unless a contrary intention appears in, or is to be implied from, the contract.

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Trading Schemes Act 1996

See HMSO for the full text of the statute

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Trade Descriptions Act 1968

The Trade Descriptions Act 1968 was the first modern consumerist legislation and marked a real development in consumer protection law, radically changing the nineteenth century principles of freedom of contract, ie laissez faire and buyer beware, or caveat emptor.
The Molony committee report of 1962 laid the foundations for the Trade Descriptions Act and dispelled criticisms of the previous Merchandising Marks Acts 1887-1953. The Act has stood the test of time very well, and is still one of the major tools of the trading standards service in combating consumer fraud and misdescription.

Prohibition of false trade descriptions

Section 1 is perhaps the core section of the Act and prohibits the giving of any false trade description:
Any person who, in the course of a trade or business:
  • applies a false trade description to any goods; or
  • supplies or offers to supply any goods to which a false trade decription is applied
....will be guilty of an offence.
There are five main requirements for the commission of an offence:
  1. there must be a false trade description
  2. it must be applied
  3. the application must be in the course of a trade or business
  4. there must be goods involved
  5. to create an offence under 1(i)(b) there must be an offer or an actual supply of goods
Section 2 defines a trade description for the purposes of the Act, for example:
  • quantity, size or gauge
  • method of manufacture, production, processing, or reconditioning
  • composition
  • fitness for purpose, strength, performance, behaviour or accuracy
  • testing by any person
  • approval by any person
  • place or date of manufacture etc
  • person by whom manufactured etc
  • other history
This list illustrates the breadth of the definition, which has proved very useful over the years, most recently with some farmers being prosecuted for misdescribing their cattle as coming from BSE free herds.
Section 3 is also very important as it defines a false trade description:
  • to be a false trade description, it must be false to a material degree (eg the famous Alistair MacLean case)
  • a misleading description, which is not in itself false, will be false if it is likely to be taken as a materially false description
  • anything not a trade description will be deemed to be one if it is likely to be taken as such
  • a false indication that goods comply with any non existant standard is deemed to be a false trade description
Section 4 describes how a person can apply a trade description to goods:
  • by fixing or annexing it to any goods, or to anything in, on or with which the goods are supplied
  • by placing the goods in, on or with anything the trade description has been affixed or annexed to
  • by using the trade description in any manner likely to be taken as referring to the goods
In addition an oral statement may amount to the use of a trade description.
Section 5 prescribes certain conditions in which an advertisement can apply to goods, for example a description can be applied to goods still to be manufactured.
Section 6 again is important as it clarifies offer to supply for the purposes of the Act:
'A person exposing goods for supply or having goods in his possession for supply shall be deemed to offer to supply them.
This section neatly circumvents the invitation to treat principle, and problems with possession.

Power to define terms and to require display of information

Section 7 gives power to make definition orders; none has yet been made.
Section 8 gives the Board of Trade power to make marking orders to mark goods with specific information, for example the Trade Descriptions (Sealskin Goods)(Information) Order 1980.
Section 9 makes provision for information to be given in advertisements, and section 10 allows for supplementary provisions to sections 8 and 9.

Misstatements other than false trade descriptions

Section 11 dealt with misleading prices and was repealed by the Consumer Protection Act 1987.
Section 12 deals with false representations as to royal approval or award (see also s99 of the Trade Marks Act 1994).
Section 13 concerns false representations that goods or services supplied are of a kind supplied to another person, whether directly or indirectly.
Section 14 is important as it deals with false statements in relation to the supply of services, ie it is an offence to:
  • make a statement which is known to be false; or
  • make a statement recklessly which is false, as to:
    1. the provision of any services, accommodation, or facilities
    2. the nature of any services, accommodation, or facilities provided
    3. the time, manner, or by whom the services, accommodation, or facilities are provided
    4. the examination, evaluation or approval of any person
    5. the location or amenities of any accommodation
Again false must be false to a material degree.
Section 15 gives the power to make orders to define terms for section 14 but no orders have been made.

Prohibition of importation of certain goods

Section 16 prohibits the importation of certain specified goods bearing a false trade description as to their place of origin, for example the Trade Descriptions (Place of Production)(Marking) Order 1988.
Note that this section creates NO offences for enforcement by local weights and measures authorities.
Section 17 similarly restricts the importation of goods bearing infringing trade marks.

Offences

Section 18 stipulates the penalties for offences under the Act:
  • on summary conviction a fine not exceeding 5000ukp
  • on conviction on indictment to a fine and/or imprisonment for up to two years
Section 19 specifies time limits for offences, generally three years from the commission of the offence or one year from its discovery by the prosecutor.
In Scotland oral descriptions have a time limit of six months.
Section 20 deals with offences committed by corporations, allowing proceedings to be taken against officers or the corporation, ie managing director, company secretary etc.
Section 21 penalises anyone in the UK who assists a person outside the UK in applying false trade descriptions as specified.
Section 22 imposes restrictions on the institution of proceedings, and admission of evidence, where there are offences under other Acts, eg Weights and Measures Act
Section 23 is important as it allows for the prosecution of another person, by whose act or default an offence is committed, allowing for the conviction of the person actually responsible.
Note that persons can be prosecuted under this bypass section even if they are NOT in trade or business.

Defences

Section 24 provides a defence of mistake or accident etc., and is unlikely to be available for offences under s14, ie where mens rea is present. It incorporates the due diligence provision, ie that all reasonabble precautions were taken and all due diligence shown.
Section 25 provides a defence for publishers of advertisements, when they innocently handle advertisements containing false trade descriptions.

Enforcement

Section 26 places the duty of enforcement on the local weights and measures authority. This does not mean that it is enforced by the weights and measures department but usually is.
Section 27 gives the local authority the power to make test purchases, an essential feature in obtaining evidence of false trade descriptions.
Section 28 gives authorised officers the power to enter premises and inspect and seize goods and documents. Warrants can also be obtained from sheriffs and JPs for entry to premises.
This section also places a duty on officers not to disclose any information obtained in pursuance of the Act, unless the disclosure is for the purposes of the Act.
This was originally to prevent trade secrets etc falling into the wrong hands, and has been amended by S38 of the Consumer Protection Act 1987 to allow disclosure for the purposes of civil or criminal proceedings.
Section 29 makes it an offence to obstruct any officer acting in pursuance of the Act.
Section 30 requires an officer to give notice of a test or intended prosecution under the Act, where goods have been purchased or seized.
Section 31 makes provision for regulations to specify certificates as acceptable as evidence. No regulations have yet been made.

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Consumer Protection Act 1987

See also the summary provided by HMSO

This is:
An Act to make provision with respect to the liability of persons for damage caused by defective products; to consolidate with amendments the Consumer Safety Act 1978 and the Consumer Safety (Amendment) Act 1986; to make provision with respect to the giving of price indications; to amend Part I of the Health and Safety at Work etc Act 1974 and sections 31 and 80 of the Explosives Act 1875; to repeal the Trade Descriptions Act 1972 and the Fabrics (Misdescription) Act 1913; and for connected purposes. Part III:
Misleading price indications

Section 20:
Offence of giving misleading indication

  1. Subject to the following provisions of this Part, a person shall be guilty of an offence if, in the course of any business of his, he gives (by any means whatever) to any consumers an indication which is misleading as to the price at which any goods, services, accommodation or facilities are available (whether generally or from particular persons).
  2. Subject as aforesaid, a person shall be guilty of an offence if –
    • in the course of any business of his, he has given an indication to any consumers which, after it was given, has become misleading as mentioned in subsection (1) above; and
    • some or all of those consumers might reasonably be expected to rely on the indication at a time after it has become misleading; and
    • he fails to take all such steps as are reasonable to prevent those consumers from relying on the indication.
  • For the purposes of this section it shall be immaterial –
    1. whether the person who gives or gave the indication is or was acting on his own behalf or on behalf of another;
    2. whether or not that person is the person, or included among the persons, from whom the goods, services, accommodation or facilities are available; and
    3. whether the indication is or has become misleading in relation to all the consumers to whom it is or it was given or only in relation to some of them.
  • A person guilty of an offence under subsection (1) or (2) above shall be liable –
    1. on conviction on indictment, to a fine;
    2. on summary conviction, to a fine not exceeding the statutory maximum.
  • No prosecution for an offence under subsection (1) or (2) above shall be brought after whichever is the earlier of the following, that is to say –
    1. the end of the period of three years beginning with the day on which the offence was committed; and
    2. the end of the period of one year beginning with the day on which the person bringing the prosecution discovered that the offence had been committed.
  • In this Part –
    'consumer' –
    1. in relation to any goods, means any person who might wish to be supplied with the goods for his own private use or consumption;
    2. in relation to any services or facilities, means any person who might wish to be provided with the services or facilities otherwise than for the purposes of any business of his; and
    3. in relation to any accommodation, means any person who might wish to occupy the accommodation otherwise than for the purposes of any business of his;
    'price', in relation to any goods, services, accommodation or facilities, means:
    1. the aggregate of the sums required to be paid by a consumer for or otherwise in respect of the supply of the goods or the provision of the services, accommodation or facilities; or
    2. except in section 21 below, any method which will be or has been applied for the purpose of determining that aggregate.
    Interpretation
    In the course of any business of his
    These words have now been interpreted by the House of Lords as meaning 'any business of which the defendant is either the owner or in which he has a controlling interest'. [R v Warwickshire County Council, (1992)]

    Liability for misleading prices given during concession's operations
    [Denard v Burton Retail Ltd (1997)] Where a Burton concession operator gave a misleading price indication, it had clearly been given in the course of Burton's business. Retailers were liable for displaying misleading prices contrary to the Consumer Protection Act 1987, s 20, even when they had not fixed the misleading prices on the price tickets and were not in a position to ensure that the pricing was accurate.

    No actual consumer need be misled
    In many instances involving price problems the investigating officer may detect offences by test purchasing or by price monitoring; an actual consumer who has been misled is often not involved. The offence under s 20 requires a misleading indication of price to be given to 'any consumers'.
    Also it would not be an offence for a wholesaler to give a misleading indication to a retailer buying for retail resale [Toys 'R' Us v Gloucestershire County Council (1994)]

    'Consumer'
    Both of the offences, s 20(1) and (2), demand that the price indication must be given to 'any consumers'. If the indication does not comply with this pre-requisite a conviction cannot be sustained. Consumer is defined in relation to any goods as 'any person who might wish to be supplied with the goods for his own private use or consumption' however there are some interesting situations which need clarification:

    • Trade-only warehouses
      In this situation only trade customers are given access to the premises. To obtain access to the warehouse the following features are usually present –
      • customers are bona fide traders having first to provide evidence of their business
      • proof of current registration for VAT purposes
      • bulk purchases have to be made
      • traders make a formal application in which a declaration is made agreeing that they are buying for resale
      • an identification pass is required for entry
      It therefore appears quite clear that a purchaser in such circumstances is not purchasing 'for his own private use or consumption' but for resale. As such, an offence does not appear to be committed should a misleading price indication be given to all or any of the goods in question.
    • Trade and Public Outlets
      Some businesses encourage both trade and retail customers. They may employ distinctive 'trade' and 'retail' counters such as those common to builders merchants or electrical factors. In these cases it will be a question of fact as to whether the customer falls within the definition of 'consumer'.
    • Pseudo Trade Outlets There are outlets that give the appearance of being trade only establishments that allow the general public 'special' access. In reality, they are selling almost exclusively to the general public, for example The Tile Warehouse
    Section 21
    Meaning of 'misleading'
    1. For the purposes of s 20 above an indication given to any consumers is misleading as to a price if what is conveyed by the indication, or what those consumers might reasonably be expected to infer from the indication or any omission from it, includes any of the following, that is to say –
      1. that the price is less than in fact it is;
      2. that the applicability of the price does not depend on facts or circumstances on which its applicability does in fact depend;
      3. that the price covers matters in respect of which an additional charge is in fact made;
      4. that a person who in fact has no such expectation –
        1. expects the price to be increased or reduced (whether or not at a particular time or by a particular amount); or
        2. expects the price, or the price as increased or reduced, to be maintained (whether or not for a particular period); or
      5. that the facts or circumstances by reference to which the consumers might reasonably be expected to judge the validity of any relevant comparison made or implied by the indication are not what in fact they are.
    2. For the purposes of s 20 above, an indication given to any consumers is misleading as to a method of determining a price if what is conveyed by the indication, or what those consumers might reasonably be expected to infer from the indication or any omission from it, includes any of the following, that is to say –
      1. that the method is not what in fact it is;
      2. that the applicability of the method does not depend on facts or circumstances on which its applicability does in fact depend;
      3. that the method takes into account matters in respect of which an additional charge will in fact be made;
      4. that a person who in fact has no such expectation –
        1. expects the method to be altered (whether or not at a particular time or in a particular respect); or
        2. expects the method, or that method as altered, to remain unaltered (whether or not for a particular period); or
      5. that the facts or circumstances by reference to which the consumers might reasonably be expected to judge the validity of any relevant comparison made or implied by the indication are not what in fact they are.
    3. For the purposes of subsections (1) (e) and (2) (e) above a comparison is a relevant comparison in relation to a price or method of determining a price if it is made between that price or that method, or any price which has been or may be determined by that method, and –
      1. any price or value which is stated or implied to be, to have been or to be likely to be attributed or attributable to the goods, services, accommodation or facilities in question or to any other goods, services, accommodation or facilities; or
      2. any method, or other method, which is stated or implied to be, to have been or to be likely to be applied or applicable for the determination of the price or value of the goods, services, accommodation or facilities in question or of the price or value of any other goods, services, accommodation or facilities.
    The following is guidance issued by LACORS

    LACOTS Circular CO 1395 3

    1.1 SUMMARY
    1.1 This circular offers advice on price indications and comparisons used in factory outlet centres.
    1.2 Guidance is given in relation to both the Consumer Protection Act 1987 and the DTI-produced Code of Practice for Traders on Price Indications. Factory outlet operators believe that there is some difficulty in applying the Code, not least because the Code (being seven years old) does not specifically refer to indications in outlet centres.
    1.3 LACOTS takes the view that operators should give priority to ensuring there is no breach of the Act. The purpose of the Code is simply to facilitate compliance by recommending good practice the underlying principle of which, to quote from the introduction to the Code, is 'if you want to make price comparisons you should do so only if you can show that they are accurate and valid'. Clearly, the Code was not designed with factory outlets in mind. Whilst it remains a source of good practice guidance some of its specific advice is inevitably difficult to apply in the circumstances.

    2 BACKGROUND
    2.1 Factory outlet centres or villages are relatively new in the UK. Typically, they comprise a number of outlets offering discounted prices on items ranging from designer clothes and footwear, to home furnishings and sporting goods. Some items may be seconds or samples, but many will be overstocks of otherwise perfect items. Further variety is provided by goods sourced directly from manufacturers and they may also be items which have only previously been sold overseas.
    2.2 Promotions for factory outlets centres can take one of two forms, either being specific to each outlet or generic covering the entire centre. Many different claims are involved in such promotions but the key issues upon which LACOTS guidance has been sought are as follows:
    (a) can outlet centres make use of broad claims such as 'Save 30% or more' without indicating the source of the comparison price?
    (b) does generic advertising (eg 'Save up to 30%') for an outlet village, require all stores to have 10% by quantity of the range of products on offer at the quoted saving?
    (c) can factory outlets advertise reductions against RRPs or MRPs?
    (d) is it possible to use 'special purchase' indications when the goods have not been bought in especially for a sale?
    (e) what method should be employed when making comparisons with prices previously charged abroad?; and
    (f) is it necessary to display the time and place of previous selling prices in all comparisons?

    3 LEGAL CONTROLS
    3.1 The primary control on price comparisons can be found in section 20 of the Consumer Protection Act 1987. This states as follows:
    'a person shall be guilty of an offence if, in the course of any business of his, he gives (by any means whatever) to any consumers an indication which is misleading as to the price at which any goods, services, accommodation or facilities are available (whether generally or from particular persons)'.
    Section 32 of the Act contains the following non-exhaustive list of indications which might directly, by inference or by omission mislead:
    '(a) that the price is less than in fact it is;
    (b) that the applicability of the price does not depend on facts or circumstances on which its applicability does in fact depend;
    (c) that the price covers matters in respect of which an additional charge is in fact made;
    (d) that a person who in fact has no such expectation –
    (i) expects the price to be increased or reduced (whether or not at a particular time or by a particular amount); or
    (ii) expect the price, or the price as increased or reduced, to be maintained (whether or not for a particular period); or
    (e) that the facts or circumstances by reference to which the consumers might reasonably be expected to judge the validity of any relevant comparison made or implied by the indication are not what in fact they are'.
     3.2 Further guidance also exists in the form of a DTI Code of Practice for Traders on Price Indications. This code, which is made under powers contained in section 25 of the 1987 Act, seeks to identify good practice in the giving of price indications. Whilst adherence to the advice of the code does not offer an absolute defence, DTI say that 'it will tend to show that you have not committed an offence'. It should be added that it is not an offence to disregard the advice in the code.

    4 LACOTS ADVICE
    4.1 In offering advice, LACOTS wishes clearly to separate opinion on the application of the legislation from comment on the relevance of the code. Whilst the latter will be of interest to those wishing to adopt good practice, it is the former which will determine whether or not an indication is misleading.
    4.2 'Save 30% or More'
    4.2.1 LACOTS considers that the use of 'save' in an unqualified context, whether by an individual outlet or an entire outlet centre, must simply mean that the actual goods are at least 30% cheaper than they were before the sale or promotion began. Furthermore, because no location is specified where the higher price was charged it is reasonable for the consumer to infer that the saving is in relation to the price previously charged at the outlet or outlet centre in question. If this is not the case the indication may well be misleading. If the comparison is actually with prices charged elsewhere, the fact should be clearly brought to the attention of the consumers.
    4.2.2 In order to comply with the DTI good practice guidance, it will be necessary for traders to have regard to paragraphs 1.2 or 1.5 of the Code.
    4.3 Do all outlets need to have at least 10% of the stock on sale at the quoted savings in sales advertised by outlet centres?
    4.3.1 Generic advertising of savings by outlet centres has the potential, at least, of being read by consumers as identifying discounts available at particular outlets. Whether or not an offence is committed will inevitably depend upon the individual circumstances. However LACOTS considers that an offence is unlikely if only a small minority of outlets are not participating in the sale. The '10% of stock' criterion is a creation of the DTI Code (see paragraph 4.3.2 below), what will be important in terms of the criminal law will be avoiding generic advertising which may mislead as to the extent of, or outlet participation in, any promotion.
    4.3.2 The guidance on good practice (paragraph 1.9.3 of the DTI Code) is as follows:
    'Do not use general notices saying eg 'up to 50% off' unless the maximum reduction quoted applies to at least 10% (by quantity) of the range of products on offer'.
    4.4 Use of MRPs & RRPs by Outlets
    4.4.1 The public perception of an RRP or an MRP is a price recommended by a person other than the seller of the goods. Whilst appropriate to many high street operations, this working definition falls down when the comparison is used by a factory outlet. That being said, the purpose of the legislation is simply to control misleading price indications. It therefore follows that factory outlets should be able to make comparisons with MRPs or RRPs provided that the MRP or RRP is genuine and forms part of the normal commercial terms between the manufacturer and other independent retail outlets.
    4.4.2 Quite simply, if an MRP or RRP is genuine, fair and meaningful then it is unlikely to give rise to a false comparison and therefore a misleading price indication. If, on the other hand, it is shown to be nothing more than an artificial device which enables bogus savings or bargains to be advertised then clearly it will lead to a misleading price indication.
    4.4.3 In terms of good practice, paragraph 1.6.3 of the DTI Code states as follows:
    'Do not use a recommended price in a comparison unless:
    (a) it has been recommended to you by the manufacturer or supplier as a price at which the product might be sold to consumers;
    (b) you deal with that manufacturer or supplier on normal commercial terms. (This will generally be the case for members of co-operative or voluntary group organisations in relation to their wholesalers or headquarters organisations); and
    (c) the price is not significantly higher than prices at which the product is generally sold at the time you first make the comparison'.
     4.4.4 For factory outlets or manufacturers' own stores it is paragraph 1.6.3 (b) which prevents full adherence to the good practice advice. An amendment to the DTI Code to recognise the special circumstances of such operations appears desirable, but LACOTS does not consider that the current wording prevents the use of genuine MRP's or RRP's by factory outlets.

    4.5 'Special Purchase' Claims
    4.5.1 'Special Purchase' is a term given particular meaning by the DTI Code (see paragraph 4.5.2 below). With regard to the offence in the legislation itself, it will again turn on the individual circumstances. LACOTS considers that 'special' does not imply that the price is lower than 'normal'. If the goods in question really are available for a price significantly cheaper than that charged elsewhere, the use of the term 'special purchase' appears unobjectionable as a term of comparison if the circumstances relating to the higher price are explained. In such circumstances Part 1 of the DTI Code offers good practice guidance on such comparisons. On the other hand, if it can be shown that there is nothing 'special' about the price, any indication runs the risk of misleading.
    4.5.2 The good practice guidance on 'special purchases' given at paragraph 1.9.1 of the DTI Code states as follows:
    'If you have bought the items specially for a sale, and you make this clear, you should not quote a higher price when indicating that they are special purchases'.
     For the reasoning advanced in the preceding paragraph LACOTS believes that this guidance is flawed as it assumed that no comparison is being made and also can be read as restricting the use of the term 'special purchase' to goods bought in specifically for a sale or promotion. It is not certain that consumers will attach the same meaning as the Code to 'special purchase'. The onus remains with the business to ensure that any indication is not misleading and it should be remembered that no offence is committed simply because an indication is not in the form laid down by the Code.

    4.6 Comparisons With Prices Charged Abroad
    4.6.1 Where savings are to be shown on items only previously sold abroad, it is important that any comparison is both meaningful and not misleading. No merit can be seen in indications such as 'was $27 now £10', because these are likely to be meaningless, although probably not misleading. To make a meaningful comparison it appears essential that both the previous and current selling price are given together in UK currency together with an indication as to the circumstances (location etc) of the previous price. To avoid misleading, the comparison should be calculated on the basis of the prevailing exchange rate at the time the previous price was charged. If the comparison is with a price currently being charged abroad, then the current rate should be used. To accommodate fluctuations in this rate, businesses will need to have in place systems to ensure that indications do not become misleading.
    4.6.2 This is not an area addressed by the DTI Code

    4.7 Time and Place of Previous Selling Prices
    4.7.1 The need to give information as to the location and time of previous selling prices will, again, depend upon the individual circumstances. As stated in paragraph 4.2.1, above if the previous price was not charged in the outlet in which the indication is given then an unqualified higher price may well lead to a misleading price indication. Time and place are also factors which, in themselves, could lead to a price indication being misleading. If the higher price prevailed several years ago when the particular goods were much higher in price (as in the case of pocket calculators etc.), or was charged only in a city or country where everything was notoriously expensive, then unqualified comparisons would be likely to mislead.
    4.7.2 Paragraphs 1.2–1.5 of the DTI Code give detailed advice on the need to make the meaning of any indication clear. On the basis of guidance given in paragraphs 1.2.2, 1.2.3, 1.3.2, 1.3.3 and 1.5.1, it will be seen to be good practice for factory outlets, and outlet centres, to give appropriate information as to the place where the higher price was charged and the time/period when this occurred.

    NB In offering this advice LACOTS wishes to make it clear that:
    (i) only the courts can interpret statutory legislation with any authority; and
    (ii) the advice given is the best available based on evidence to hand at the time and is subject to 12 October 1995 revision or amendment in the light of further evidence.

    NB 4.4.3 of the above advice is obviously altered in light of the regulations governing the use of RRPs for certain electrical goods

    Section 22
    Application to provision of services and facilities

    1. Subject to the following provisions of this section, references in this Part to services or facilities are references to any services or facilities whatever including, in particular:
      1. the provision of credit or of banking or insurance services and the provision of facilities incidental to the provision of such services;
      2. the purchase or sale of foreign currency;
      3. the supply of electricity;
      4. the provision of a place, other than on a highway, for the parking of a motor vehicle;
      5. the making of arrangements for a person to put or keep a caravan on any land other than arrangements by virtue of which that person may occupy the caravan as his only or main residence.
    2. References in this Part to services shall not include references to services provided to an employer under a contract of employment.
    3. References in this Part to services or facilities shall not include references to services or facilities which are provided by an authorised person or appointed representative in the course of the carrying on of an investment business.
    4. In relation to a service consisting in the purchase or sale of foreign currency, references in this Part to the method by which the price of the service is determined shall include references to the rate of exchange.
    5. In this section:
      'appointed representative', 'authorised person' and 'investment business' have the same meanings as in the Financial Services Act 1986;
      'caravan' has the same meaning as in the Caravan Sites and Control of Development Act 1960;
      'contract of employment' and 'employer' have the same meanings as in the [Employment Rights Act 1996]; 'credit' has the same meaning as in the Consumer Credit Act 1974.

    Amendments

    This section is amended as follows:
    1 Regulation 57 of and Sch 10, para 12 of the Investment Services Regulations 1995 (SI 1995/3275) (see 4 [1820] states (as of 1.1.96) that:
    'Section 22 of the Consumer Protection Act 1987 (application to provision of services and facilities) shall have effect as if it included a provision that references in Part III of that Act to services or facilities shall not include references to services or facilities which are provided by a European investment firm in the course of carrying on home-regulated investment business in the United Kingdom.'
    2 Regulation 82(1) and Sch 10 para 27 of the Banking Coordination (Second Council Directive) Regulations 1992 (SI 1992/3218) provides:
    'Section 22 of the CPA 1987 (application to provision of services and facilities) shall have effect as it included a provision that references in Part III of that Act to services or facilities shall not include references to services or facilities which are provided by a European institution in the course of carrying on home-regulated investment business in the United Kingdom.'
     3 The reference to the Employment Protection (Consolidation) Act 1978 in s 22(5) was replaced by 'Employment Rights Act 1996' by virtue of s 240 and Sch 1, para 34 of that Act.

    Section 23
    Application to provision of accommodation etc

    1. Subject to subsection (2) below, references in this Part to accommodation or facilities being available shall not include references to accommodation or facilities being available to be provided by means of the creation or disposal of an interest in land except where:
      1. the person who is to create or dispose of the interest will do so in the course of any business of his; and
      2. the interest to be created or disposed of is a relevant interest in a new dwelling and is to be created or disposed of for the purpose of enabling that dwelling to be occupied as a residence, or one of the residences, of the person acquiring the interest.
    2. Subsection (1) above shall not prevent the application of any provision of this Part in relation to:
      1. the supply of any goods as part of the same transaction as any creation or disposal of an interest in land; or
      2. the provision of any services or facilities for the purposes of, or in connection with, any transaction for the creation or disposal of such an interest.
    In this section –
    'new dwelling' means any building or part of a building in Great Britain which:

    (a) has been constructed or adapted to be occupied as a residence; and
    (b) has not previously been so occupied or has been so occupied only with other premises or as more than one residence, and includes any yard, garden, out–houses or appurtenances which belong to that building or part or are to be enjoyed with it;

    'relevant interest':
    (a) in relation to a new dwelling in England and Wales, means the freehold estate in the dwelling or a leasehold interest in the dwelling for a term of years absolute of more than twenty-one years, not being a term of which twenty-one years or less remains unexpired;
    (b) in relation to a new dwelling in Scotland, means the dominium utile of the land comprising the dwelling, or a leasehold interest in the dwelling where twenty-one years or more remains unexpired.

    Price of property

    Section 23 relates to the price of new dwellings only. As respects the price or previous price of second-hand dwellings or new and second-hand commercial property, see the Property Misdescriptions (Act) 1991

    Section 24
    Defences

    1. In any proceedings against a person for an offence under subsection (1) or (2) of section 20 above in respect of any indication it shall be a defence for that person to show that his acts or omissions were authorised for the purposes of this subsection by regulations made under section 26 below.
    2. In proceedings against a person for an offence under subsection (1) or (2) of section 20 above in respect of an indication published in a book, newspaper, magazine, [or film or in a programme included in a programme service (within the meaning of the Broadcasting Act 1990)], it shall be a defence for that person to show that the indication was not contained in an advertisement.
    3. In proceedings against a person for an offence under subsection (1) or (2) of section 20 above in respect of an indication published in an advertisement it shall be a defence for that person to show that:
      1. he is a person who carries on a business of publishing or arranging for the publication of advertisements;
      2. he received the advertisement for publication in the ordinary course of that business; and
      3. at the time of publication he did not know and had no grounds for suspecting that the publication would involve the commission of the offence.
    4. In any proceedings against a person for an offence under subsection (1) of section 20 above in respect of any indication, it shall be a defence for that person to show that:
      1. the indication did not relate to the availability from him of any goods, services, accommodation or facilities;
      2. a price had been recommended to every person from whom the goods, services, accommodation or facilities were indicated as being available;
      3. the indication related to that price and was misleading as to that price only by reason of a failure by any person to follow the recommendation; and
      4. it was reasonable for the person who gave the indication to assume that the recommendation was for the most part being followed.
    5. The provisions of this section are without prejudice to the provisions of section 39 below.
    6. In this section –
      'advertisement' includes a catalogue, a circular and a price list;
    Section 25
    Code of Practice
    1. The Secretary of State may, after consulting the Director General of Fair Trading and such other persons as the Secretary of State considers it appropriate to consult, by order approve any code of practice issued (whether by the Secretary of State or another person) for the purpose of –
      1. giving practical guidance with respect to any of the requirements of section 20 above; and
      2. promoting what appear to the Secretary of State to be desirable practices as to the circumstances and manner in which any person gives an indication as to the price at which any goods, services, accommodation or facilities are available or indicates any other matter in respect of which any such indication may be misleading.
    2. A contravention of a code of practice approved under this section shall not of itself give rise to any criminal or civil liability, but in any proceedings against any person for an offence under section 20 (1) or (2) above –
      1. any contravention by that person of such a code may be relied on in relation to any matter for the purpose of establishing that that person committed the offence or of negativing amy defence; and
      2. compliance by that person with such a code may be relied on in relation to any matter for the purpose of showing that the commission of the offence by that person has not been established or that that person has a defence.
    3. Where the Secretary of State approves a code of practice under this section he may, after such consultation as is mentioned in subsection (1) above, at any time by order –
      1. approve any modification of the code; or
      2. withdraw his approval;
        and references in subsection (2) above to a code of practice approved under this section shall be construed accordingly.
    4. The power to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
    Orders under this section
    The Consumer Protection (Code of Practice for Traders on Price Indications) Approval Order 1988 (SI 1988/2078) has been made under this section.

    Copies of this Code of Practice can be obtained from your local Trading Standards Department

    Section 26
    Power to make regulations

    1. The Secretary of State may, after consulting the Director General of Fair Trading and such other persons as the Secretary of State considers it appropriate to consult, by regulations make provision –
      1. for the purpose of regulating the circumstances and manner in which any person –
        • gives any indication as to the price at which any goods, services, accommodation or facilities will be or are available or have been supplied or provided; or
        • indicates any other matter in respect of which any such indication may be misleading;
      2. for the purpose of facilitating the enforcement of the provisions of section 20 above or of any regulations made under this section.
    2. The Secretary of State shall not make regulations by virtue of subsection (1) (a) above except in relation to –
      1. indications given by persons in the course of business; and
      2. such indications given otherwise than in the course of business as –
        • are given by or on behalf of persons by whom accommodation is provided to others by means of leases or licences; and
        • relate to goods, services or facilities supplied or provided to those others in connection with the provision of the accommodation.
    3. Without prejudice to the generality of subsection (1) above, regulations under this section may –
      1. prohibit an indication as to a price from referring to such matters as may be prescribed by the regulations;
      2. require an indication as to a price or other matter to be accompanied or supplemented by such explanation or such additional information as may be prescribed by the regulations;
      3. require information or explanations with respect to a price or other matter to be given to an officer of an enforcement authority and to authorise such an officer to require such information or explanations to be given;
      4. require any information or explanation provided for the purposes of any regulations made by virtue of paragraph (b) or (c) above to be accurate;
      5. prohibit the inclusion in indications as to a price or other matter of statements that the indications are not to be relied upon;
      6. provide that expressions used in any indication as to a price or other matter shall be construed in a particular way for the purposes of this Part;
      7. provide that a contravention of any provision of the regulations shall constitute a criminal offence punishable–
        • on conviction on indictment, by a fine;
        • on summary conviction, by a fine not exceeding the statutory maximum;
      8. apply any provision of this Act which relates to a criminal offence to an offence created by virtue of paragraph (g) above.
    4. The power to make regulations under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power –
      1. to make different provision for different cases; and
      2. to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.
    5. In this section 'lease' includes a sub-lease and an agreement for a lease and a statutory tenancy (within the meaning of the Landlord and Tenant Act 1985 or the Rent (Scotland) Act 1984).
    Regulations under this section
    Three Orders have been made under this section:
    the Price Indications (Methods of Payment) Regulations 1991 (SI 1991/199),
    the Price Indications (Bureau de Change) (No 2) Regulations 1992 (SI 1992/737),
    the Price Indications (Resale of Tickets) Regulations 1994 (SI 1994/3248)

    Part IV
    Enforcement of Parts II and III of the Consumer Protection Act 1987 (see also Safety legislation)

    Section 27
    Enforcement

    1. Subject to the following provisions of this section –
      • it shall be the duty of every weights and measures authority in Great Britain to enforce within their area the safety provisions and the provisions made by or under Part III of this Act; and
      • it shall be the duty of every district council in Northern Ireland to enforce within their area the safety provisions.
    2. The Secretary of State may by regulations –
      • wholly or partly transfer any duty imposed by subsection (1) above on a weights and measures authority or a district council in Northern Ireland to such other person who has agreed to the transfer as is specified in the regulations;
      • relieve such an authority or council of any such duty so far as it is exercisable in relation to such goods as may be described in the regulations.
    3. The power to make regulations under subsection (2) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power –
      • to make different provision for different cases; and
      • to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.
    4. Nothing in this section shall authorise any weights and measures authority, or any person on whom functions are conferred by regulations under subsection (2) above, to bring proceedings in Scotland for an offence.
    Section 28
    Test purchases
    1. An enforcement authority shall have power, for the purpose of ascertaining whether any safety provision or any provision made by or under Part III of this Act has been contravened in relation to any goods, services, accommodation or facilities –
      • to make, or to authorise an officer of the authority to make, any purchase of any goods; or
      • to secure, or to authorise an officer of the authority to secure, the provision of any services, accommodation or facilities.
    2. Where –
      • any goods purchased under this section by or on behalf of an enforcement authority are submitted to a test; and
      • the test leads to –
        • the bringing of proceedings for an offence in respect of a contravention in relation to the goods of any safety provision or of any provision made by or under Part III of this Act or for the forfeiture of the goods under section 16 or 17 above; or
        • the serving of a suspension notice in respect of any goods; and
      • the authority is requested to do so and it is practicable for the authority to comply with the request,
        the authority shall allow the person from whom the goods were purchased or any person who is a party to the proceedings or has an interest in any goods to which the notice relates to have the goods tested.
    3. The Secretary of State may by regulations provide that any test of goods purchased under this section by or on behalf of an enforcement authority shall –
      • be carried out at the expense of the authority in a manner and by a person prescribed by or determined under the regulations; or
      • be carried out either as mentioned in paragraph (a) above or by the authority in a manner prescribed by the regulations.
    4. The power to make regulations under subsection (3) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power –
      • to make different provision for different cases; and
      • to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.
    5. Nothing in this section shall authorise the acquisition by or on behalf of an enforcement authority of any interest in land.
    Section 29
    Powers of search etc
    1. Subject to the following provisions of this Part, a duly authorised officer of an enforcement authority may at any reasonable hour and on production, if required, of his credentials exercise any of the powers conferred by the following provisions of this section.
    2. The officer may, for the purpose of ascertaining whether there has been any contravention of any safety provision or of any provision made by or under Part III of this Act, inspect any goods and enter any premises other than premises occupied only as a person's residence.
    3. The officer may, for the purpose of ascertaining whether there has been any contravention of any safety provision, examine any procedure (including any arrangements for carrying out a test) connected with the production of any goods.
    4. If the officer has reasonable grounds for suspecting that any goods are manufactured or imported goods which have not been supplied in the United Kingdom since they were manufactured or imported he may –
      • for the purpose of ascertaining whether there has been any contravention of any safety provision in relation to the goods, require any person carrying on a business, or employed in connection with a business, to produce any records relating to the business;
      • for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain the goods;
      • take copies of, or of any entry in, any records produced by virtue of paragraph (a) above.
    5. If the officer has reasonable grounds for suspecting that there has been a contravention in relation to any goods of any safety provision or of any provision made by or under Part III of this Act, he may –
      • for the purpose of ascertaining whether there has been any such contravention, require any person carrying on a business, or employed in connection with a business, to produce any records relating to the business;
      • for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain the goods;
      • take copies of, or of any entry in, any records produced by virtue of paragraph (a) above.
    6. The officer may seize and detain –
      • any goods or records which he has reasonable grounds for believing may be required as evidence in proceedings for an offence in respect of a contravention of any safety provision or of any provision made by or under Part III of this Act;
      • any goods which he has reasonable grounds for suspecting may be liable to be forfeited under section 16 or 17 above.
    7. If and to the extent that it is reasonably necessary to do so to prevent a contravention of any safety provision or of any provision made by or under Part III of this Act, the officer may, for the purpose of exercising his power under subsection (4), (5) or (6) above to seize any goods or records –
      • require any person having authority to do so to open any container or to open any vending machine; and
      • himself open or break open any such container or machine where a requirement made under paragraph (a) above in relation to the container or machine has not been complied with.
    Section 30
    Provisions supplemental to s 29
    1. An officer seizing any goods or records under section 29 above shall inform the following persons that the goods or records have been so seized, that is to say –
      • the person from whom they are seized; and
      • in the case of imported goods seized on any premises under the control of the Commissioners of Customs and Excise, the importer of those goods (within the meaning of the Customs and Excise Management Act 1979).
    2. If a justice of the peace –
      • is satisfied by any written information on oath that there are reasonable grounds for believing either –
        • that any goods or records which any officer has power to inspect under section 29 above are on any premises and that their inspection is likely to disclose evidence that there has been a contravention of any safety provision or of any provision made by or under Part III of this Act; or
        • that such a contravention has taken place, is taking place or is about to take place on any premises; and
      • is also satisfied by any such information either –
        • that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this subsection has been given to the occupier; or
    3. An officer entering any premises by virtue of section 29 above or a warrant under subsection (2) above may take with him such other persons and such equipment as may appear to him necessary.
    4. On leaving any premises which a person is authorised to enter by a warrant under subsection (2) above, that person shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.
    5. If any person who is not an officer of an enforcement authority purports to act as such under section 29 above or this section he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
    6. Where any goods seized by an officer under section 29 above are submitted to a test, the officer shall inform the persons mentioned in subsection (1) above of the result of the test and, if–
      • proceedings are brought for an offence in respect of a contravention in relation to the goods of any safety provision or of any provision made by or under Part III of this Act or for the forfeiture of the goods under section 16 or 17 above, or a suspension notice is served in respect of any goods; and
      • the officer is requested to do so and it is practicable to comply with the request, the officer shall allow any person who is a party to the proceedings or, as the case may be, has an interest in the goods to which the notice relates to have the goods tested.
    7. The Secretary of State may by regulations provide that any test of goods seized under section 29 above by an officer of an enforcement authority shall –
      • be carried out at the expense of the authority in a manner and by a person prescribed by or determined under the regulations; or
      • be carried out either as mentioned in paragraph (a) above or by the authority in a manner prescribed by the regulations.
      • The power to make regulations under subsection (7) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament and shall include power:
        • to make different provision for different cases; and
        • to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.
      • In the application of this section to Scotland, the reference in subsection (2) above to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.
      • In the application of this section to Northern Ireland, the references in subsection (2) above to any information on oath shall be construed as references to any complaint on oath.
    Section 32
    Obstruction of authorised officer
    1. Any person who:
      • intentionally obstructs any officer of an enforcement authority who is acting in pursuance of any provision of this Part or any customs officer who is so acting; or
      • intentionally fails to comply with any requirement made of him by any officer of an enforcement authority under any provision of this Part; or
      • without reasonable cause fails to give any officer of an enforcement authority who is so acting any other assistance or information which the officer may reasonably require of him for the purposes of the exercise of the officer's functions under any provision of this Part. shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
    2. A person shall be guilty of an offence if, in giving any information which is required of him by virtue of subsection (1)(c) above:
      • he makes any statement which he knows is false in a material particular; or
      • he recklessly makes a statement which is false in a material particular.
    3. A person guilty of an offence under subsection (2) above shall be liable:
      • on conviction on indictment, to a fine;
      • on summary conviction, to a fine not exceeding the statutory maximum.
    Section 33
    Appeals against detention of goods
    1. Any person having an interest in any goods which for the time being detained under any provision of this Part by an Enforcement authority or by an officer to such an authority may apply for an order requiring the goods to be released to him or to another person.
    2. An application under this section may be made:
      • to any magistrates' court in which proceedings have been brought in England and Wales or Northern Ireland:
        • for an offence in respect of a contravention in relation to the goods of any safety provision or of any provision made by or under Part III of this Act; or
        • for the forfeiture of the goods under section 16 above;
      • where no such proceedings have been so brought, by way of complaint to a magistrates' court; or
      • in Scotland, by summary application to the sheriff.
    3. On an application under this section to a magistrates' court or to the sheriff, an order requiring goods to be released shall be made only if the court or sheriff is satisfied:
      • that proceedings:
        • for an offence in respect of a contravention in relation to the goods of any safety provision or of any provision made by or under Part III of this Act; or
        • for the forfeiture of the goods under section 16 or 17 above, have not been brought or, having been brought, have been concluded without the goods being forfeited; and
      • where no such proceedings have been brought, that more than six months have elapsed since the goods were seized.
    4. Any person aggrieved by an order made under this section by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision –
      • in England and Wales, to the Crown Court;
      • in Northern Ireland, to the county court;
        and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).
    Section 34
    Compensation for seizure and detention
    1. Where an officer of an enforcement authority exercises any power under section 29 above to seize and detain goods, the enforcement authority shall be liable to pay compensation to any person having an interest in the goods in respect of any loss or damage caused by reason of the exercise of the power if–
      • There has been no contravention in relation to the goods of any safety provision or of any provision made by or under Part III of this Act; and
      • the exercise of the power is not attributable to any neglect or default by that person.
    2. Any disputed question as to the right to or the amount of any compensation payable under this section shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.
    Section 35
    Recovery of expenses of enforcement
    1. This section shall apply where a court –
      • convicts a person of an offence in respect of a contravention in relation to any goods of any safety provision or of any provision made by or under Part III of this Act; or
      • makes an order under section 16 or 17 above for the forfeiture of any goods.
    2. The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the goods to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority –
      • in connection with any seizure or detention of the goods by or on behalf of the authority; or
      • in connection with any compliance by the authority with directions given by the court for the purposes of any order for the forfeiture of the goods.

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    Consumer Credit Act 1974

    The Consumer Credit Act is an extremely complex and lengthy document and cannot be reproduced on this site, however here is a general summary, some pertinent areas of interest, and the Consumer Credit (Advertisements) Regulations.

    The Act is in twelve parts:

    • Part I (ss 1 to 7) deals with the duties and functions of the Director General of Fair Trading.
    • Part II (ss 8 to 20) defines the agreements to which the Act applies and the various categories of those agreements, establishing the basic conceptual terminology.
    • Part III (ss 21 to 42) covers the licensing of credit and hire businesses, the licensing principles, the issue, renewal, variation and suspension of licences and miscellaneous matters including appeals.
    • Part IV (ss 43 to 54) is concerned with advertising, canvassing and other matters relating to seeking business.
    • Part V (ss 55 to 75) deals with matters preliminary to the making of agreements, their form and content, and withdrawal from and cancellation of agreements.
    • Part VI (ss 75 to 86) covers matters arising during the currency of agreements, including the liability of the creditor for breaches by the supplier, notices, the duty of the creditor or owner to supply information, variation of agreements, the misuse of credit facilities and credit-tokens, and provisions relating to the death of the debtor or hirer.
    • Part VII (ss 87 to 104) deals with default notices, restrictions on remedies for default, early settlement and termination.
    • Part VIII (ss 105 to 126) concerns security, the form and content of security instruments, the duties of the creditor or owner towards the surety, pledges and pawnbroking, restrictions on the use of negotiable instruments and the enforcement of land mortgages.
    • Part IX (ss 127 to 144) deals with judicial control over the enforcement of regulated agreements and securities, time orders and other orders that may be made by the court, the reopening of credit agreements on the ground that the credit bargain is extortionate, and jurisdiction.
    • Part X (ss 145 to 160) covers ancillary credit businesses, brokerage, debt-adjusting, debt-counselling, debt-collecting and credit reference agencies, making provision for the licensing thereof, advertising and canvassing, entry into agreements, and the duties of credit reference agencies to disclose and correct information.
    • Part XI (ss 161 to 173) deals with enforcement, enforcement authorities and their powers, criminal penalties and defences, the onus of proof, statements binding on the creditor or owner and the prohibition of contracting out.
    • Part XII (ss 174 to 193) covers a number of miscellaneous matters relating to restrictions on the disclosure of information, duties of agents, service of documents, savings for registered charges etc, also deals with regulations and orders, interpretation, and commencement and transitional provisions.

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    The Consumer Credit (Advertisements) Regulations 1989

    These Regulations may be viewed in full on the HMSO site.

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    Property Misdescription Act 1991

    This act can be viewed in full on the HMSO site.

    The aspects of property in respect of which misdescription is an offence are listed in the Property Misdescriptions (Specified Matters) Order 1992. There are some 33 items and the wide coverage of the list reflects the fact that it is not a list of matters about which information must be given but stipulates matters about which information must not be misleading. For example

    • Location or address
    • Aspect, view, outlook or environment
    • Proximity to any services, places, facilities or amenities
    • Survey, inspection, investigation, valuation or appraisal by any person or the results thereof
    • Fixtures and fittings
    • Availability and nature of services, facilities or amenities
    • The length of time during which land has been available for sale either generally or by or through a particular person

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    Timeshare Act 1992

    This act can be viewed in full on the HMSO site and there is also much information on the Timeshare Consumers Association website.

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    Trade Marks Act 1994

    This act can be viewed in full on the HMSO website.

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    Copyright Designs and Patents Act 1988

    This act can be viewed in full on the HMSO website.

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