Robertson 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 the defendant’s premises. The Court of Appeal had found the contractor unable to recover the cancellation fee, but also that the consumer appellant was unable to recover the deposit he had paid.
Held: The appeal succeeded. A failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations.
A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. The requirement to give notice of the right to cancel is not a technical prerequisite to the arousal of the right but a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. Any implementation of this requirement must reflect its purpose. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences.
‘ it is clear from the decisions . . that the objective of the Directive where a contract is cancelled is that the consumer should not suffer adverse consequences; that, in effect, he should be placed in the position that he would have been in if he had not entered the agreement in the first place. That the achievement of this objective should be dependent on whether the trader has given written notice to the consumer of his right to cancel would be incongruous’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKSC 50, [2014] WLR(D) 396, [2014] ECC 32, [2015] 1 CMLR 15, [2014] 1 WLR 3438, [2014] BUS LR 1029, [2014] 4 All ER 869, [2014] 2 All ER (Comm) 1083, UKSC 2013/0033
Bailii Summary, Bailii, WLRD, SC, Sc Summary
The Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc Regulations 2008, Council Directive (85/577/EEC)
England and Wales
Appeal fromRobertson 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 . .
CitedEva Martin Martin v EDP Editores, SL ECJ 17-Dec-2009
ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – . .
CitedSchulte v Deutsche Bausparkasse Badenia AG ECJ 25-Oct-2005
ECJ Environment and Consumers – Consumer protection – Doorstep selling – Purchase of immovable property – Investment financed by a secured loan – Right of cancellation – Effects of cancellation.
‘when . .
CitedEva Martin Martin v EDP Editores, SL ECJ 7-May-2009
ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of . .
CitedVodafone 2 v HM Revenue and Customs CA 22-May-2009
To avoid a restriction unlawful under European law of a company’s freedom of establishment in the context of the profits of a foreign controlled company and that company’s right of freedom of establishment, the court could properly read into the . .
CitedHeininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
CitedE. Friz GmbH v Carsten von der Heyden (Environment And Consumers) ECJ 15-Apr-2010
ECJ Consumer protection – Contracts negotiated away from business premises Scope of Directive 85/577/EEC – Entry into a closed-end real property fund established in the form of a partnership – Cancellation.
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Contract, Consumer, European

Leading Case

Updated: 11 November 2021; Ref: scu.536472