Specialist solicitor defending businesses accused of trade descriptions and misleading claims and omissions offences
If you or your business are being investigated for unfair trading practices, including an allegation that you have made misleading claims or omissions about your product or service then you should seek the advice of a leading business crime solicitor, like Jim Meyer, who specialises in defending those who are being investigated by a local authority’s Trading Standards Services (“TSS”).
Assembling the right legal team to advise and actively defend you will be one of the most important actions that you take.
Jim Meyer will do all that he can to ensure the best possible outcome.
The Trade Descriptions Act 1968 made it an offence for businesses or salespeople to sell a product or service based on misinformation and whilst it is technically still valid, it has been largely superseded by the Consumer Protection from Unfair Trading Regulations 2008. Both corporate entities and private individuals can be prosecuted; directors, managers, secretaries or officers of companies (or any person purporting to act as such) can also be personally liable if they are found to have caused a company to offend by their “consent or connivance” or “neglect”.
Of course, if a business is convicted it faces the prospect of reputational damage and a potentially ruinous unlimited financial penalty; individuals who are found guilty risk a “directors’ disqualification” but worse than that they can be imprisoned for up to 2 years. You also need to be aware that a local authority TSS can (and does) opt for prosecutions under mainstream criminal legislation, most notably the Fraud Act 2006, and calling upon Jim’s 27 years' of criminal litigation experience can make all the difference to the outcome:
There are statutory defences that can be deployed;
There are time limits that the prosecuting authority needs to observe.
The bottom line is that you need to manage the risk of TSS scrutiny by engaging expert legal advice; even if it is simply to limit the damage of an adverse finding, there are things that can be done.
Contact a specialist defence solicitor as soon as you become aware of a Trading Standards investigation
Trading Standards Services has wide-ranging powers, now consolidated under schedule 5, part 1 of the Consumer Rights Act 2015, which include:
The power to require the production of information;
The power to require the production of documents;
The power to purchase products (“test purchases”);
The power to observe the carrying on a of business;
The power of entry without warrant;
The power of entry with a warrant;
The right to require assistance from persons on premises;
The power to inspect products;
The power to test equipment;
The power to seize and detain goods;
The power to seize documentation required as evidence;
The power to switch off or decommission fixed installations;
The power to break open containers.
If you are on the receiving end of such a power, it is essential you take immediate legal advice. Jim has a detailed knowledge of the procedures TSS is required to follow and if you are facing an enforcement action or prosecution he can provide expert advice at every stage. This includes:
Attending an interview under caution;
Providing written statements;
Representing you at Court;
Protecting the future of your business following an investigation or prosecution by the regulator.
Whilst prosecution is generally reserved for those cases where there has been persistent and serious flouting of the law, this is not always the case. Involving Jim at an early stage will allow him to positively influence what will happen.
Providing support to potential witnesses when they speak to trading standards and in advance of them giving evidence
Because Jim is a defence specialist with over 27 years‘ experience of criminal litigation, he is often asked to advise and provide support to potential witnesses when an investigating authority, such as the TSS, indicates it wishes to speak to them. Jim provides the reassurance that the individual’s rights, including the right not to incriminate oneself, are protected and that the witness provides the best evidence (s)he can; in advance of any meeting Jim will do his best to ensure that the format for the questioning is understood, the topics for discussion are fully appreciated and that the witness is properly prepared for these.
Jim is also able to provide familiarisation training to witnesses who are to be called to give evidence during proceedings; using his 27 years‘ experience as a contentious litigator, Jim will make sure the witness has a complete understanding of the theory, practice and procedure of giving evidence and what is expected of them. This includes orientating the witness with:
The layout of the court room;
The likely sequence of events when the witness will be giving evidence;
The different responsibilities of the various people at the hearing.
Relevant case law in relation to trade description prosecutions
CA (Crim Div) (Lord Thomas LCJ, Spencer J, Simler J)
12 May 2016
A company selling reclining armchairs to vulnerable customers, and its director, had their convictions for engaging in unfair commercial practices upheld. The director had connived in an aggressive commercial practice when he sent a letter to a 75-year-old disabled woman stating that she would only receive a refund if the offer of the refund and the settlement amount remained confidential.
Two warrants issued under the Consumer Protection from Unfair Trading Regulations 2008 reg.21 following an application by a local authority's trading standards department were quashed as the warrants had not complied with reg.22.
CA (Crim Div) (Fulford LJ, Holroyde J, Judge Lakin)
3 April 2014
In the case of a car trader guilty of falsely claiming or creating the impression that he was not acting for purposes relating to his trade, contrary to the Consumer Protection from Unfair Trading Regulations 2008, it was proportionate to base a confiscation order on the turnover, rather than merely the profit, on the sale of 58 cars he sold as a private seller. His entire enterprise was characterised by his deliberate misrepresentations intended to meet his objective of avoiding having to provide a warranty.
CA (Crim Div) (Leveson LJ, Foskett J, Sir Geoffrey Grigson)
23 May 2013
The phrase "commercial practice" as used in the Consumer Protection from Unfair Trading Regulations 2008 could, depending on the circumstances, cover either a single incident or a pattern of repeated behaviour.
The court allowed property seized under search and seizure warrants subsequently quashed on grounds of material non-disclosure to be retained to facilitate a private prosecution by the party responsible for the non-disclosure where it was in the public interest to allow the prosecution to proceed.
A magistrates' court had been wrong, when determining an offender's mode of trial for offences contrary to the Consumer Protection from Unfair Trading Regulations 2008 reg.9 and reg.11, in applying fraud sentencing guidelines. Those offences were not based on dishonesty and had no sentencing guidelines.
The conviction of a company which provided parking-management facilities for engaging in a commercial practice which was misleading was quashed where there was an inconsistency between the jury's verdict and its decision to acquit the company on similar charges.
CA (Crim Div) (Moore-Bick LJ, Butterfield J, Irwin J)
10 November 2011
A judge should have discharged the jury where a fair-minded, independent and informed observer, knowing that jurors had to be, and be seen to be, unbiased, would have concluded that there was a real risk that during the course of the trial the jury had received information and views from an extraneous source that it could not put out of its mind.
The investigation of a complaint of police ill treatment by the same police force complained of did not breach the European Convention on Human Rights 1950 art.3, as the availability of an appeal of the investigation to the Independent Police Complaints Commission and the possibility of criminal proceedings against the relevant officers ensured that such an investigation was sufficiently independent.
There was no abuse of process warranting a halting of a prosecution for selling an item to which a false trade description had been applied where the goods had been destroyed in the process of being tested, preventing the party from whom the goods had been purchased from conducting their own tests.
Before criminal proceedings were instituted by a local authority, acting in relation to strict liability offences under the Trade Descriptions Act 1968 , consideration had to be given to the terms of the authority's own policy guidelines on the prosecution of offences.
In the absence of duplicity, abuse or impropriety a magistrates court was not entitled in the purported exercise of its discretion, to refuse to issue summonses in the form suggested by a prosecuting authority.
Where a motor trader knew or had reasonable grounds for believing that the mileage travelled by a vehicle substantially exceeded that shown on the odometer he could not effectively disclaim the odometer reading merely by stating that it was incorrect if he did not go on to reveal the truth as he knew it.
On the facts of this case the respondent, who had sold a magazine with a CD Rom without a classification certificate, was not obliged to carry out independent checks on publications received from a particular supplier and magistrates had been fully justified in concluding that the respondent had established a defence of due diligence under s.14A Video Recordings Act 1984.
CA (Crim Div) (Lord Woolf of Barnes LCJ, Rougier J, Bell J)
4 July 2000
A total fine of #22,500 for three offences of giving false information that services had been supplied pursuant to s.13 Trade Descriptions Act 1968 was wholly inappropriate having regard to the company's financial status and previous authorities and, accordingly, was reduced to #6,000.
DC (Schiemann LJ, Douglas Brown J)
9 March 2000
The magistrates had been entitled to find that an information had not been laid out of time even though the original complaint had occurred more than one year before the information was laid.
QBD (Newman J)
15 December 1999
Forfeiture proceedings and an appeal to the Crown Court in respect of a forfeiture order under s.97 Trade Marks Act 1994 were civil proceedings and therefore the Brussels Convention applied.
QBD (Simon Brown LJ, Turner J)
23 November 1999
Guidance as to appeals against Crown Court refusals, in whole or part, to state a case for appeal.
QBD (Henry LJ, Ebsworth J)
24 May 1996
An acquittal founded upon expert evidence was not perverse.