Supreme Court upholds consumer’s right to cancel contract

10/09/14

On 9 September 2014 the Supreme Court (Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath and Lord Hodge) handed down judgment in Robertson v Swift [2014] EWCA Civ 1794 which concerned a consumer’s right to cancel a contract pursuant to the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008/1816. The Office of Fair Trading intervened in the appeal in order to make submissions in the interests of consumers.

The Supreme Court overturned the judgment of the Court of Appeal which had effect to deprive a consumer of the right to cancel a contract in circumstances in which a trader wrongfully failed to give the consumer notice of their cancellation rights. Applying the principle that the national court must interpret domestic legislation, as far as possible, in the light of the wording and purpose of the Directive it seeks to implement, the Supreme Court concluded that to hold that the consumer did not have a right to cancel because the trader had not served written notice of that right would be inconsistent with the overall objective of Council Directive 85/557/EEC.

The Supreme Court endorsed and applied the conforming interpretation of the regulations advanced on behalf of the OFT. This has the effect that a consumer would have the right to cancel a contract at any time prior to the end of the cancellation period, which would either expire 7 days after the consumer received notice of the right to cancel or, in the event that no such notice was served, would not expire at all so that the consumer could cancel at any time.

The judgment is here.