Unfair Terms in Consumer Contracts: a new ... - Law Commission

3.41 The CPRs are generally enforced by the TSS and the OFT through criminal
sanctions and enforcement orders. 42
3.42 Although courts may award compensation following a criminal conviction, the
CPRs do not permit consumers to bring civil actions on their own behalf.
3.43 In our March 2012 Report, “Consumer Redress for Misleading and Aggressive
Practices”, we made recommendations for a private right of redress in this area. 43
Late information
3.44 The CPRs are particularly useful where information is presented late in the
booking process, such as where a misleading advertisement for a low fare
encourages consumers to spend a long time on a website, before discovering
that the fare is much higher than originally thought. The essential question is
whether the misleading advertisement would encourage “the average consumer
to take a transactional decision he would not have taken otherwise”.
Transactional decisions are not confined to purchases. The concept includes
matters such as the decision to spend 20 minutes on a website trying to book a
flight.
3.45 Furthermore, some of the banned practices are specific examples of the
problems caused by “loss aversion to sunk costs”. For example, Banned Practice
6 covers “bait and switch”, where a trader makes an invitation to purchase an
item which is not for sale with the intention of promoting a different product. 44
Vulnerable consumers
3.46 The CPRs are also intended to protect particularly vulnerable consumers.
Although the general test is based on the average consumer, vulnerable
consumers are protected in two circumstances, where:
(1) the commercial practice was “directed to a particular group” of
consumers; or
(2) a “clearly identifiable group of consumers is particularly vulnerable …
because of their mental or physical infirmity, age or credulity” and a
trader could be reasonably expected to foresee this.
3.47 These provisions aim to prevent traders from exploiting particular vulnerabilities,
such as misleading treatments aimed at those who are seriously ill, 45 or mediums
who exploit the bereaved by pretending to talk to dead loved-ones.
42 In Scotland, all criminal prosecutions are conducted by the Crown Office and the
Procurator Fiscal Service on behalf of the Lord Advocate.
43
Consumer Redress for Misleading and Aggressive Practices (2012) Law Com No 332;
Scot Law Com No 226.
44 SI 2008 No 1277, Sch 1, para 6.
45 Above, Sch 1, para 17 states that “falsely claiming that a product is able to cure illnesses,
dysfunction or malformations” is a banned practice.
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