Robertson v Swift: CA 15 Jan 2013

The claimant removal company sought payment of its fees after the defendant purported to cancel the arrangement for moving his goods. The defendant now appealed against rejection of his claim that the the contract was cancellable within the 2008 Regulations. The district judge said that the Regulations applied to a contract made only on one visit to the defendant’s home. On this occasion two visits had been involved. The Regulations applied to a contract made ‘(a) during a visit by the trader to the consumer’s home or place of work, or to the home of another individual’
Held: The appeal succeeded. The Regulations applied to a contract made at the consumer home irrespective of whether there had been earlier negotiations. The use of the indefinite article did not limit the contractual process to a single visit. Since the claimant had not given notice of the cancellation right, and the agreement unenforceable. However that also meant that the deposit was not repayable. This was so even though the claimant had visited only at the request of the defendant.
The 2008 Regulations went beyond the requirements of the Directive. Were they ultra vires? Before they had been brought in a clear policy decision was made to extend the protection, and the Regulations were enacted under the 2007 Act and were not dependent upon the terms of the Directive.
The fact that there had been earlier negotiations elsewhere did not work to disapply the 2008 Regulations where in fact the contract was concluded the consumer’s home. The remover was not able to recover the cancellation fee. However neither was the appellant able to recover the initial 1,000 pound deposit he had paid: ‘Since the claimant did not serve any written notice under paragraph 7 (2) of the 2008 Regulations, there was no cancellation period as defined in paragraph 2 (1) of the Regulations. It follows that the defendant was not entitled to cancel the contract under paragraph 7 (1). The effect of the 2008 Regulations is that the contract remained alive, but it was unenforceable as against the defendant.
It follows from this analysis that paragraph 10 (1) of the 2008 Regulations does not apply. Therefore the defendant has no right under the Regulations to recover the andpound;1,000 deposit which he paid.’
Jackson LJ adumbrated two possible interpretations of regulation 5(a). The first was that the regulation only applied where the contract was negotiated and concluded during a single visit to the consumer’s home. The second was that it applied if the consumer’s home was where the contract was concluded, whether or not earlier negotiations had taken place there. He concluded that the second of these was to be preferred.
Mummery, Jackson, Lewison LJJ
[2012] EWCA Civ 1794, [2013] WLR(D) 11, [2013] Bus LR 479
Bailii, WLRD
Council Directive 85/577/EEC, Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987, European Communities Act 1972, Consumers, Estate Agents and Redress Act 2007, Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008
England and Wales
Cited by:
Appeal fromRobertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .

These lists may be incomplete.
Updated: 16 February 2021; Ref: scu.469777