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Meaning of ‘Commercial Practice’ under CPUT

R v Christopher Steele [2012] C.T.L.C. 109

On 17th April 2012 Mr Recorder Lowe QC sitting in the Snaresbrook Crown Court accepted defence submissions by Claire Andrews that misrepresentations to one consumer in the context of one building contract could not be unfair commercial practices within the meaning of the Regulations.

The practices alleged by the prosecution were that in relation to some premises in London where building work was carried out by the Defendant, misleading representations were made and that paragraph 4 of the ‘Black List’ in Schedule 1 of the Regulations had been infringed. There was no evidence of the Defendant’s commercial activities outside the services provided in this case.

The Recorder acknowledged Claire’s argument that CPUT concerns different concepts from the Trade Descriptions Act 1968 and that “commercial practice” as defined in regulation 2 specifies that the activity must be addressed to consumers in the plural. Claire argued that the Interpretation Act 1978 should not be used to infer that the plural includes the singular, because this is European legislation to which the purposive interpretive approach as described by Etherton J in OFT v. Purely Creative, paragraph 40 applies. That is, interpretation involves looking at its purpose by reference to European legislation and decisions, not national laws. This consumer legislation has as its main purpose the development of the internal market. The notion of affording a high level of protection to consumers must be seen in that light. The words “average consumer” are words of proportionality and limitation as is the description of “commercial practice”.

Claire submitted that viewed in this way, a commercial practice is an outwardly facing commercial strategy of the organisation as envisaged in Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH [2010] ECR I-00217, paras 36 and 37. A difference is to be found between an activity of this sort which affects one consumer, where the Regulations would apply, and a non-intentional activity which is directed at only one consumer, where they would not.

The Recorder found that the case was bound to fail on the evidence that the prosecution wished to put forward and made a Defendant’s costs order.