As we approach the two-year anniversary of the Consumer Rights Act 2015 (the ‘CRA’) coming into the force in the UK, now is a suitable opportunity to refresh your knowledge and reflect on the CRA’s impact on UK consumer law.
Back in October 2015, the CRA was believed to be one of the most significant overhauls of consumer rights in recent history. It swept up a long list of fragmented statutes (in whole or in part) including the Sale of Goods Act 1979; the Unfair Contract Terms Act 1977; and the Supply of Goods and Services Act 1982, consolidating them into a single piece of legislation.
But in the following 24 months, what impact has the CRA had on businesses dealing with consumers? Has the business-to-consumer relationship fundamentally changed? Has the CRA achieved its aims?
Arguably the impact has not been as earthshaking as expected.
Refresh: what did the CRA set out to achieve?
One of the primary aims of the CRA was to better protect “consumers” (essentially individuals acting as individuals) against unfair contract terms and notices. The Act also intended to update the rights of consumers in the evolving digital world.
The CRA confirmed the standards that businesses should meet when supplying goods, performing services and offering digital content to consumers. It also clearly established the remedies that are available to consumers, should those standards fail to be adhered to.
Moreover, the CRA clarified and consolidated laws on unfair contract terms and consumer notices. If a contract term or consumer notice created a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer, then the term or notice would simply be unenforceable.
Reflect: has the CRA achieved its aims?
Despite the CRA’s intention to consolidate consumer legislation, there are still a number of regulations and pieces of legislation that have to be read in conjunction to achieve a full picture of consumer rights. These include some aspects of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Consumer Protection Act 1987. The new unfair contract terms regime in the CRA also operates in parallel with the Consumer Protection from Unfair Trading Regulations.
While the CRA has certainly consolidated a number of Acts, its failure to create a single piece of legislation can leave consumers slightly in the dark. Furthermore, the CRA is by no means a simple piece of legislation that can be easily navigated by consumers, leaving its full comprehension available only to those with deep knowledge and understanding of its workings.
Reflect: what impact has the CRA had for consumers?
The largest impact of the CRA has been outside the scope of commercial contracts, and in the realm of competition law. The CRA introduced ‘collective actions’ in respect of competition claims for the first time in the UK.
This introduction has led to US-style ‘class action claims’ including a £14 billion action bought on behalf of 46 million consumers levied against MasterCard. The action claimed that MasterCard had infringed EU competition law by imposing significant cross-border charges on retailers over a 16-year period (ending in 2008), the cost of which filtered down to consumers in the form of higher prices for goods and services. In July 2017, the Competition Appeal Tribunal blocked this particular collective action however, on the basis that the assessment of damages for the consumers would have been too imprecise to calculate.
Very little case law, however, exists on firstly, the standards that businesses need to meet with the supply of services, goods and digital content to consumers or secondly, on unfair contract terms and notices, against which we can truly assess the CRA’s impact.
This could suggest that businesses are treating consumers fairly and seeking to minimise the risk of any unwanted claims or adverse publicity. But in reality it is probably that consumers are unlikely to be fully aware of their rights under the CRA or if they are, unwilling to pursue them given the uncertainty of costs and process involved. We expect to see more case law as the CRA becomes increasingly embedded in the business-to-consumer relationship and as consumer awareness and confidence grows.
So it’s not all £14 billion claims just yet?
While the CRA has hit headlines for opening up the avenue for consumers to pursue multi-billion pound claims, its true impact on day-to-day transactions between consumers and businesses is still yet to be revealed. It is likely to slowly be changing the relationship between consumers and businesses, but not in the groundbreaking way many commentators in 2015 thought that it would.
Businesses should not take this to mean that they can ignore the CRA however. The CRA gives consumers considerable rights and remedies against businesses and the cost of getting this wrong can be substantial for businesses, both financially and reputationally.