Some Illustrative Cases
So far, the evidence suggests that judges have taken a relatively protective approach to interpretation of the UCPD concepts. For example, from a consumer protection perspective, one perennial risk with concepts of 'fairness' or 'good faith' is that they will be understood to require subjective dishonesty by the trader. Now we have noted above that, in the case of the 'professional diligence' concept, there is only criminal liability under the UK regime where there is indeed mens rea in the form of intention or recklessness by the trader. There is no mention of trader intention or recklessness where preventive control measures (enforcement orders) are concerned. At the same time, professional diligence is defined for all purposes, by reference, inter alia, to 'honest market practice'. Nevertheless, the High Court has resisted any temptation to read this in a non-protective way. It was made clear in Tiscali UK Ltd v. British Telecommunications Plc that there was an 'objective' test of dishonesty, in that it was not necessary to demonstrate that at the time of the offending statement, its maker knew it to be false or had no honest belief in its truth.
Another encouraging decision from a consumer protection perspective is OFT v Purely Creative. This case dealt with whether various 'scratch card' promotions violated the general clauses on misleading actions and omissions. On the facts, it was held that some did and some did not. However, the key point for our purposes is that the High Court understood the 'average consumer' concept by reference to a relatively protective ethic, recognizing that such a consumer will not necessarily read all information provided.
Communications Law 115-117. The case also involved analysis of the proper interpretation of Paragraph 31 of Annex 1 to the Directive (i.e., the list of practices that are always to be considered unfair, without the need to apply one of the general test of unfairness). This is because there was also a question as to whether the promotions in question were in breach of paragraph 31. This issue was appealed to the Court of Appeal, whose decision was stayed pending a reference to the ECJ to determine the scope of Paragraph 31 (  EWCA Civ 920). On the ECJ decision see below notes 97-98 and related text.
This case is obviously significant in the context of the misleading action and omission concepts. It suggests that courts should focus on the main information provided (or not provided, where omissions are concerned) in deciding whether the average consumer is likely to be misled and caused to take a transactional decision that would not otherwise be taken. This core information (or lack of it) is what should determine whether there has been a misleading action or omission, rather than information provided in supplementary form, small print etc.
The most recent case was Ashbourne Management Services Limited. The plaintiff in this case was the Office of Fair Trading, while the defendant was a company which specialized in recruiting gym members for fitness clubs across the country. The case concerned, inter alia, threats to report consumers to credit reference agencies for non-payment of sums allegedly due under the agreements with the gyms. For our purposes the important point is that the High Court decided that such threats amounted to aggressive practices where the sums in question were legitimately in dispute and where the sums were no more than claims for unliquidated damages. This seems to approach the aggressive practices concept in a relatively protective manner. It takes account of the very significant detrimental impact on consumers of being reported to a credit reference agency and therefore having a poor credit record that will affect future attempts to borrow money. Importantly, also, it seems to recognize that traders should not simply be viewed as having a legitimate interest in taking any otherwise legal action to protect their interests. They should be expected to take seriously any genuine dispute as to the validity of their claim.
In summary, UK judges have been relatively sensitive to consumer protection needs in the way in which they have interpreted these UCPD concepts. On the trader side, subjective dishonesty is not required. So, the fairness of practices is to be judged objectively - a practice deemed unfair by these criteria does not become acceptable based on a 'pure heart and empty head' defence. On the consumer side of the equation, there is recognition of the information-processing limits of consumers. There also appears to be recognition that the fairness of practices (at least under the aggressive practices concept) should be understood by reference to the detrimental substantive impact of the practice on the consumer consumers (UCPD, arts 5 [b] and 5/CPUTR, regs 2 and 2). There is no space here to discuss these alternative benchmarks. However, see discussion in C Willett, 'Unfairness under the Consumer Protection from Unfair Trading Regulations', above, n 7; and see, for example, the OFT work on mental capacity: OFT, Mental Capacity consultation (OFT 1293con), available at oft.gov.uk/news-and-updates/press/2010/127-10.
-  89 Aside from the cases discussed here, for examples of cases decided under the CPUTR, see also McGuffick v Royal Bank of Scotland Plc  EWHC 2386; Kingspan Group Plc v Rockwool Ltd  EWHC 250(Ch); and OFT v Peter Hall, available at oft.gov.uk/news-and-updates/press/2010/38-10.
-  See n 33 and related text.
-  Art 2(h)/CPUTR, reg 2(1).
-   EWHC 3129(QB).
-   EWHC 106(Ch). For a discussion see M Morgan-Taylor, 'Preventing Distribution of Promotions to Consumers Involving Unfair Practices - OFT Application for Order Under Enterprise Act 2002: OFT v Purely Creative Ltd et al' (2011) 16(3)
-  This 'average consumer' concept (who is deemed to be 'reasonably well informed and reasonably circumspect' is, of course the core benchmark for assessing practices under the regime (UCPD, arts 5-9, Preamble, recital 18/CPUTR, reg. 2 ). Of course, this standard can be varied to the average member of targeted or vulnerable groups of
-  Office of Fair Trading v Ashbourne Management Services Limited, John Clayton-Wright and Dawne Clayton-Wright  EWHC 1237(Ch).