Legal perspectives: aggressive commercial practices In this feature l Cps l bringing a claim l redress Just deserts? Damages for aggressive commercial practices could be more generous than you might think, argues William Hibbert A conviction for aggressive commercial practices under the Consumer Protection from Unfair Trading Regulations 2008 arises when there is significant impairment of the average consumers freedom of choice or conduct in relation to a product, through the use of harassment, coercion or undue influence. Obtaining redress In life, one has to put up with a certain amount of annoyance; things have got to be fairly severe before the law civil or criminal will intervene In addition to criminal proceedings, victims now have a right to obtain redress for aggressive commercial practices that lead to a contract or a payment. This includes damages for: Alarm, distress or physical inconvenience or discomfort, which the consumer would not have suffered if the prohibited practice had not taken place. (Regulation 27.) Consumers may well ask what level of damages they might hope to beawarded. Government guidance, Misleading and Aggressive Commercial Practices New private rights for consumers; Guidance on the Consumer Protection (Amendment) Regulations 2014 (BIS August 2014), suggests that damages will not be substantial: The amounts awarded for distress and inconvenience should be restrained and modest, in accordance withthe general law in England, Wales and Scotland. Only in exceptional circumstances would these exceed 1,000 and, inmost cases, a nominal award, or an amount below 1,000, would be appropriate. Given that a claim has to be brought by the consumer separately, in the county court, this suggestion of nominal or, at best, low-level damages may well be off-putting. But is the likely award really as low as the guidance suggests? After all, the conduct has to be pretty bad to amount to harassment, coercion or undue influence in the first place it is a criminal offence. InMajrowski v Guys and Thomas NHS Trust [2006], in relation to a claim under the Protection from Harassment Act 1997 which, like the2008 Regulations, creates both a criminal offence and a civil liability a clerical worker claimed damages for harassment by his departmental manager. In relation to what constitutes harassment, Lord Nicholls in the Supreme Court said: Courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybodys day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct that is unattractive, even unreasonable, and conduct that is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be of an order which would sustain criminal liability. In Ferguson v British Gas Trading Limited [2009], Ferguson was a customer of British Gas, but when she switched to another supplier, thecompany sent her a series of bills that she considered unjustified. She received letters generated by computer threatening to cut off her gas supply, to start legal proceedings against her and to report her to credit-rating agencies. She wrote and telephoned the company several times asking for it to stop, but the bills and threats continued. Ferguson brought a claim for damages for harassment contrary to the Protection from Harassment Act 1997. The Court of Appeal held that the conduct could amount to harassment. As Jacob LJ said: In life, one has to put up with a certain amount of annoyance; things have got to be fairly severe before the law civil or criminal will intervene. Given that things will necessarily be fairly severe as a starting point for the offence to have been committed, the guidance that merely nominal damages will be awarded in most cases appears incorrect. The guidance specifically references the general law in England and Wales, and case law indicates a much more generous approach is likely. The suggestion that, at most, 1,000 may be awarded and then for exceptional circumstances is out of line with what the courts have indicated should be awarded for distress. As the Court of Appeal recognised in the Roberts case (see panel: Agressive debt collection), damages for harassment are assessed in the same way as those awarded for injury to feelings in discrimination cases in the Employment Tribunal (see Martins v Choudhary [2007] EWCA Civ 1379 although in S&D Property Investments v Nisbet [2009] EWHC 1726 (Ch) the Court of Appeal held that it would be incorrect to apply precisely the same awards, since discrimination necessarily involves an award for the humiliation of being treated differently on the grounds of a protected characteristic such as sex or race. It would seem there is real scope for a meaningful award of civil damages for distress under 2008 Regulations Compensation for injury In discrimination cases, three broad bands of compensation for injury to feelings were identified by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. Following an increase in 2009 by the Employment Appeal Tribunal in DaBell v NSPCC UKEAT/0277/09/CEA to allow for inflation, those bands are: l 18,000 to 30,000 for the most serious cases, for example where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race l 6,000 to 18,000 for serious cases, which do not merit an award inthe highest band l 600 to 6,000 for less serious CAS ES OF HAR AS S MENT OR COERCION cases, such as where an act of discrimination is an isolated or There have been some good examples in the one-off occurrence press this year of what this might involve: In general, awards of less than [600] l The director of Rapide Security was convicted, at Leicester Magistrates Court, of using are to be avoided altogether, as they threatening and harassing tactics to demand riskbeing regarded as so low as not payment for the monitoring of alarm systems to bea proper recognition of injury to installed in his victims properties. His tactics feelings. (Vento) included threats to issue embarrassing Damages awarded documents at their workplace, to inform their neighbours of their debts, and to advertise their The Court of Appeal in Roberts upheld non-payment in the local press anaward of damages of 7,500. Moreover, l Two directors of Summit Roofguard were the Vento levels will be adjusted to jailed at Wolverhampton Crown Court for their take account of inflation since DaBell. companys persistent pressure-sales technique. InAA Solicitors Limited v Majid [2016] Their sales sessions, which could last up to six UKEAT/0217/15, the Court commented hours, targeted elderly and vulnerable potential customers including those with dementia and that the middle Vento band is now in cancer and the recently widowed to get them the range of 6,600 at the lower end and to agree to roofing work 19,800 at the top end. Another area in which generous compensation has been awarded for harassment is under the unfair relationships provisions of the Consumer Credit Act 1974, by which the court can make an order with the effect of compensating a borrower for conduct by the lender which has caused its relationship with the borrower to be unfair. In Harrison v Link Financial Ltd, a decision of the High Courts Mercantile Court reported at [2011] E.C.C. 26, the judge wrote off a credit card debt, worth more than 20,000, largely because of the manner in which Harrison was hounded by telephone calls seeking payment of what was said to be due. The calls were a form of torture, oppressively frequent in amount and often without attribution to an identifiable number, the sole purpose of which the judge found must have been to make Mr Harrisons life so difficult that he would come toheel. It would seem, therefore, that there is real scope for a meaningful award of civil damages for distress under 2008 Regulations. Further, the small-claims track jurisdiction of the County Court of 10,000 makes bringing a claim attractive to consumers, as the track is designed to be quick and relatively uncomplicated, with costs awards limited in scope and amount. The consumer will have to give evidence of the distress he or she has suffered but, if trading standards has obtained a conviction thus proving the facts of the offence and overcoming any due-diligence defence obtaining an award providing real redress should be reasonably straightforward. AggRES S IvE DEBT COLLECTION As will be clear by the reference above bank made a large number of phone 10 to 10 at night. to Ferguson v British Gas Trading plc, calls, and the content was particularly Caller: You will do. damages for distress from aggressive unpleasant and intimidatory: R: I will do? Over and over again? commercial practices can be awarded in l In one call, when Roberts made it clear Caller: Yes, do you want me to stop the other contexts. Aggressive debt collection that she wished not to be telephoned calls coming out to you? has particularly been the subject of again, the caller refused to comply with harassment claims under the Protection this request and replied: Well until you from Harassment Act 1997. In Roberts v speak to us and cooperate with us we Bank of Scotland PLC [2013] EWCA Civ are going to continue to call you with 882, the bank, according to its own log, regards to this matter made 547 telephone calls or attempted calls to Roberts between December 2007 l Another exchange with a caller from the bank went as follows: R: Over and over again I keep asking you the beginning of 2008, Robertson was at and you keep ringing me; Im getting most 89 over her credit card limit, yet the calls at 10 past eight in the morning and Credits William Hibbert is a barrister at Henderson Chambers. Images: Zsuzsa Goodyer / CPL I asked? Caller: Right, so we need to have a quick chat then, OK? I just need. R: No, I dont think so! Stop ringing me! Caller: OK, well give you a ring later. R: No, you wont! Caller: Yes we will! and January 2009. It used an automated dialling system. During one month at R: Excuse me! How many times have To share this page, in the toolbar click on R: Oh, and youre just going to keep doing it over and over again? Caller: Yes, until you talk to us, OK? You might also like A lot to learn October 2016