Robertson v Swift

Factual and Procedural Background

The Plaintiff, who operates a removal business, agreed on 28 July 2011 to move the Appellant’s household goods from The City to another location for £5,750 plus insurance and VAT (total £7,595.40). The Appellant signed an acceptance document at his home and paid a £1,000 deposit, with the move scheduled to start on 2 August 2011.

After discovering a substantially cheaper quote, the Appellant telephoned the Plaintiff on 30 July 2011 to cancel and confirmed this by letter dated 1 August 2011. The Plaintiff demanded cancellation charges under clause 7 of his standard terms; the Appellant refused and sought return of his deposit.

The Plaintiff issued small-claims proceedings. A Deputy District Judge dismissed the Appellant’s reliance on The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008 (“the 2008 Regulations”). His Honour Judge [Last Name] upheld that decision. The Court of Appeal allowed the Appellant’s appeal in part: it held that the 2008 Regulations applied and rendered the contract unenforceable, but concluded that the deposit was irrecoverable. The present judgment is the final appellate decision.

Legal Issues Presented

1. Whether the 2008 Regulations apply when a contract is concluded in a consumer’s home after more than one visit.
2. Whether a trader’s failure to give written notice of the right to cancel deprives the consumer of that statutory right.
3. Whether, in such circumstances, the consumer is entitled to recover a deposit already paid.

Arguments of the Parties

Appellant's Arguments

• The contract was concluded in the consumer’s home, bringing it within regulation 5(a) of the 2008 Regulations.
• Because the Plaintiff failed to provide the mandatory written notice of the right to cancel, the contract is unenforceable (regulation 7(6)).
• The absence of notice does not extinguish the statutory right to cancel; therefore the Appellant lawfully cancelled by his letter of 1 August and is entitled to recover the £1,000 deposit.

Plaintiff's Arguments

• The 2008 Regulations should only apply where contract negotiations and conclusion occur during a single visit; applying them here produces an “absurd” result.
• The Appellant invited the visit, and the Plaintiff turned away other work in reliance on the agreement; cancellation at short notice is unfair.
• Even if the contract is unenforceable, the lack of a “cancellation period” prevents recovery of the deposit.

Intervener’s Arguments (Office of Fair Trading)

• Urged a purposive, EU-conforming construction of the Regulations to preserve the consumer’s right to cancel.
• Suggested two interpretative solutions:
  • Read “within” in regulations 7(1) and 8(1) as “at any time prior to the expiration of”.
  • Re-define “cancellation period” in regulation 2(1) to run indefinitely until written notice is in fact given.

Table of Precedents Cited

Court's Reasoning and Analysis

Applying the established duty of EU-conforming interpretation, the court examined the purpose of the underlying Directive: to provide robust consumer protection, particularly the practical ability to withdraw from doorstep contracts. It held that reading the 2008 Regulations literally—so that failure to give written notice both made the contract unenforceable and removed the consumer’s right to cancel—would defeat that purpose.

The court adopted a purposive construction advanced by the Intervener: the word “within” in regulations 7(1) and 8(1) is to be understood as “at any time prior to the expiration of” the cancellation period. Because no cancellation notice had ever been given, the cancellation period never began to run, leaving the Appellant free to cancel at any time. The Appellant’s letter of 1 August therefore validly cancelled the contract. In consequence, regulation 10(1) required repayment of all sums paid by the consumer.

This construction “goes with the grain” of the Regulations, imposes consequences on the trader who failed to supply mandatory information, and aligns domestic law with the Directive and CJEU authority (Heininger and Friz).

Holding and Implications

APPEAL ALLOWED. The Appellant validly cancelled the contract and is entitled to the return of his £1,000 deposit.

Implications: Traders who conclude contracts in a consumer’s home must provide written notice of cancellation rights; failure to do so renders the contract unenforceable and leaves the consumer free to cancel at any time, with an automatic right to recover monies paid. The judgment reinforces a purposive, consumer-protective approach and brings domestic interpretation firmly into line with EU consumer-protection jurisprudence.