Retail Matters – Summer 2019


Duty of care to protect customers? Legal and[...]
Social and commercial context Reports of violence on the high street are on the rise. […]
Social and commercial context
Reports of violence on the high street are on the rise. Unfortunately, even the briefest of internet research reveals a worrying number of incidences of violence in our shops, businesses and streets. Within just the last year alone there have been: a stabbing in Waitrose; a lethal knife attack on Harlesden High Street; separate killings, knife attacks, boiling water and acid attacks on shopping streets in Colchester; violence, gun crime, drugs and prostitution forcing shops and pubs to close in Swansea High Street; and armed robbery and a stabbing with scissors at Co-op stores in Greater Manchester, to mention but a few.
Figures reported by The British Retail Consortium (BRC) show that 115 people are attacked, with many more threatened, across the industry every day. Recent quarterly figures show 2,500 incidents of verbal abuse and anti-social behaviour, and 600 violent incidents, one in four of which involved a knife, gun or another weapon. The BRC has also reported that the financial cost of crime to the industry is a massive £1.9 billion; not to mention the human cost suffered by affected employees and their families, and the detrimental publicity and wider negative impacts such crimes can have on an already beleaguered high street.
A group of major retailers and industry bodies has signed an open letter urging the UK Government to do more to tackle rising levels of violence and abuse towards shop workers. The letter has been signed by the Association of Convenience Stores, the BRC, Asda, Marks & Spencer, John Lewis, WH Smith and Boots. It recommends tougher sentences for attackers, reviewing police responses to incidents and changing the out-of-court, fixed penalty system, which it says is failing. The letter has been published as the Government closes its recent call for evidence into violence and abuse towards shop staff.
The importance of the Cumberland Hotel case
It is clear that vital work is needed to protect retailers’ employees and premises. However, the recent case of Al Najar & Ors v The Cumberland Hotel (London) [1] (the shocking case in which three sisters were brutally attacked at the former Cumberland Hotel) gives rise to additional concerns for retailers, and indeed for any business inviting customers or guests into its premises, because it considers the extent to which such businesses owe a duty of care to protect their customers.
What can retailers do?
As explained in more detail below, the High Court concluded in this case that a business owes a duty to invited guests/customers to take reasonable care to protect against injury caused by the criminal acts of third parties.
The increasing incidences of violence on the high street and the focus of the Government and industry bodies on this disturbing trend, mean that it is likely, were the question to arise in a case in the retail context (as opposed to the hospitality context of the Cumberland Hotel case), a court would find that the risk of violence to staff and/or customers would be reasonably foreseeable.
The key for responsible retailers will therefore be to ensure that they take sufficient steps to safeguard not only their staff, but also their customers. Such measures as are appropriate will differ from retailer to retailer, and potentially even from store to store, but they could (non-exhaustively) include:
- undertaking detailed and regular security/risk assessments
- implementing such, policies/procedures and security measures as are necessary to address any risks identified
- keeping such policies/procedures and measures under review and up-to-date and ensuring that they are followed at all times (perhaps by undertaking random spot-checks)
- ensuring that security staff are properly trained or qualified as appropriate, and that all training and qualifications are kept up-to-date and under review
- ensuring that security equipment is up-to-date and in full working order at all times
- ensuring that all other staff are trained so as to be alive to the risks of violence to staff and customers, and that they are aware of security measures and procedures to be followed in the event of any incident
- implementing, and ensuring that all staff are aware of and use, a reporting system for incidences of violence or related matters.
Cumberland Hotel case: Cause for concern
In this case the attacker accessed the hotel room of three sisters and carried out a theft and violent hammer attack, inflicting critical and permanent injuries on all three sisters. The sisters took legal action alleging that the hotel’s security had been insufficient. The High Court considered whether a business owes a duty to invited guests (or, by analogy, to any customers) to take reasonable care to protect against injury caused by the criminal acts of third parties; and concluded that it did.
The High Court undertook an up-to-date review of the circumstances in which the law of England and Wales may impose liability arising from omissions (such as, here, an omission to take steps to prevent the danger of a theft and violent attack). The court decided that the correct approach was to apply the ‘omissions principle’ identified by the Supreme Court in the 2018 case of Robinson v Chief Constable of West Yorkshire [2], namely: “In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.” It concluded that, by inviting guests to stay, a hotel assumes a responsibility to protect guests from danger as per (i) above.
A duty of care can, therefore, arise. Again by analogy, a duty of care could potentially also arise on the part of retailers, banks, bars, restaurants, cinemas, theatres, arenas, local authorities or indeed any business which invites guests or customers into its premises.
In this particular case, however, the hotel escaped liability overall, as the High Court decided that security was taken seriously at the hotel and that the hotel did take reasonable care to protect its guests. The hotel was not, therefore, in breach of its duty.
Next steps
Walker Morris will monitor and report on any key developments arising from the Government’s recent call for evidence, and the industry’s open letter, concerning violence within the industry. In addition if, as they have threatened, the sisters pursue an appeal of this decision against the former Cumberland Hotel, we will also report on the outcome.
In the meantime, however, if you require any further information, or if you would like any assistance and advice which can be tailored to the needs of your business, please do not hesitate to contact Gwendoline Davies or any member of Walker Morris’ specialist Retail Team.
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[1] [2019] EWHC 1593 (QB)
[2] [2018] UKSC 4, see para. 34. See also another recent article, published in the Commercial Litigation Journal, which looks at the Robinson case and the extent to which it challenges received wisdom about the implication of duties of care in tort.

Pooling resources and risk: Key considerations for retail[...]
To survive – even thrive – in uncertain times and in a challenging market, retailers […]
To survive – even thrive – in uncertain times and in a challenging market, retailers need to be open-minded to opportunities for improving efficiency and targeting growth. One option that many high street names are choosing in the current market is the joint venture.
James Crayton and Gwendoline Davies offer a quick checklist of some of the key practical points for any retailer considering pooling resources and risk with a potential partner.
Retail joint ventures – practical considerations
Marks & Spencer with Ocado; Walmart with Eko and MGM; Burberry with Coty; H&M with Jimmy Choo, Versace and others; Debenhams and Li & Fung… they’re all doing it – should you?!
There’s no doubt that there can be significant advantages for retailers who decide to pair up with suitable partners, whether that be in terms of increased buying power improving supply chain efficiency (à la Debenhams and Li & Fung); the pooling of infrastructure and marketplace resources and risk (M&S and Ocado); or the reinvigoration and expansion of a brand (H&M with luxury fashion labels, and multiple retail/celebrity collaborations), to mention just a few.
Joint venture arrangements can, however, also involve real risk. If a joint venture partner doesn’t turn out to be the right ‘fit’, or if financial, strategic and/or operational interests and objectives diverge and differ over time, the consequences to the balance sheet and to the brand can be devastating.
If you are wondering whether a joint venture might be a viable option for your retail business, check out our list of some key points to consider.
Checklist
- First and foremost, the selection of the right joint venture partner is critical. Detailed research and due diligence of all aspects of a potential partner’s business and ethos should be undertaken.
- There is no specific meaning of ‘joint venture’ in English law. The parties therefore need to decide, at the outset, on the form that the venture will take. Will the arrangement take the form of a new legal entity (such as a limited company, a partnership or a limited liability partnership), or will it be a purely contractual arrangement (which might take the form of a co-operation agreement or which might involve licensing or franchising arrangements)? As well as specialist legal advice, advice on the tax implications of the various different possible structures may be needed.
- What assets/resources will each party bringing to the venture and how can they be safeguarded? For example, what existing data and intellectual property rights will be used and are they adequately protected? What warranties and indemnities will be given in relation to assets/resources contributed, and to whom? What will be the impact on the partners’ respective existing businesses of sharing resources such as employees, IT, real estate and contacts? Are any external funding arrangements required?
- What exactly are the returns on their investment that each party expects? For example, how will newly generated IP rights be utilised and protected; and how are any profits to be dealt with – re-invested; shared; in what proportions?
- Are there any wider legal or regulatory issues to consider? For example, is there any risk of the new venture falling foul of UK and/or EU competition/merger control? Is it a cross-border venture and if so have all jurisdictional/international aspects to the deal been properly considered and covered off? Are there any listing rules or industry-specific regulations with which the new venture must comply? Are there any TUPE [1] implications if employees are being transferred to the new venture; and how are any share scheme or pension scheme arrangements to be dealt with?
- Are the parties entirely clear, and in agreement, about how key decisions relevant to the joint venture and all aspects of its business are to be made and by whom? Clear governance/deadlock provisions will be needed and can minimise the potential for dispute.
- In case disagreements do occur, dispute resolution provisions should govern the resolution of any issues that arise both during the life of the joint venture and potentially for a specified time thereafter.
- The soon-to-conclude Ocado/Waitrose partnership is unusual in that it has continued successfully for nearly 20 years. Joint ventures are most often successful when they are relatively short-term, as short-term arrangements can have immediate impact and remain relevant in a fast-moving market, plus the risk of diverging interests giving rise to commercial or operational disputes is minimised. The parties should, ideally, agree at the commencement of any joint venture its duration; and should, at the very least, include suitable arrangements for termination at the instigation of either party.
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[1] Transfer of Undertakings (Protection of Employment) Regulations 2006

FCA to proceed with proposals to remedy perceived[...]
New rules in force from 12 September and 12 November 2019 BNPL proposals In December […]
New rules in force from 12 September and 12 November 2019
BNPL proposals
In December 2018, the FCA consulted on a package of remedies relating to Buy Now Pay Later (BNPL) products with an aim to encourage more customers to repay, in full and in part, during the BNPL offer period. The remedies that the FCA proposed can be split into two categories:
- remedies designed to improve the information disclosed to consumers relating to BNPL products; and
- remedies relating to the structure of BNPL products and the charging of interest.
Following feedback from consumer groups and industry respondents, the FCA are proceeding with its proposed rules, with some tweaks as a result of the responses received. Under the new rules, firms will be required to provide additional information in the adequate explanation of BNPL products, provide prompts to consumers regarding the BNPL offer period and cease the practice of ‘backdating’ interest on amounts that the customer has repaid during the BNPL offer period.
The new rules
The new rules introduce some additional definitions to the FCA Handbook Glossary including BNPL agreement, BNPL credit and BNPL payment condition. These definitions have been modified slightly following feedback to ensure that they do not capture all forms of promotional interest-free or low interest periods, such as those which are common on catalogue or store card purchases.
The FCA received positive feedback on the proposed rules relating to disclosure and communication of information relating to BNPL products. 12 out of 13 respondents agreed with the proposals in this area (with the other respondent not expressing a view). As a result of this, amendments will be made to the relevant sections of the FCA Handbook Consumer Credit Sourcebook (CONC) to implement the following:
- CONC 3.3.11A G will be added which provides guidance to BNPL firms when issuing communications or financial promotions regarding BNPL products. The new guidance requires firms to present offers in a clear and balanced way, highlighting relevant risks in a prominent manner;
- CONC 4.2.15R (8) will be extended to cover BNPL products, obligating firms to provide customers with information regarding the limitations that apply to any zero percentage, low interest, introductory or other offer, including how interest will be charged if they fail to repay; and
- CONC 6.7.16A R will be extended to cover BNPL products, requiring firms to provide notice to customers of any action that needs to be taken to benefit from any zero-percentage or low interest, introductory or promotional offer in a clear and timely manner.
- Due to the positive feedback received, the FCA is maintaining its proposed implementation date of 12 September 2019 for the additional disclosure BNPL rules.
The feedback in relation to the ‘deferred’ or ‘backdated’ interest was more varied. The FCA did not accept the consumer groups’ view that firms should be banned from charging backdated interest on all amounts, including those not repaid by the end of the offer period, but they also did not accept firms’ feedback that the proposed remedy was disproportionate.
The FCA acknowledged that BNPL works for many consumers who find it a useful way of deferring payment and managing their budgets. The FCA also acknowledged that incurring interest is not inherently harmful, but continued to hold concerns relating to the complexity of BNPL products and the differential treatments of partial and full repayments.
The FCA recognised that the absence of daily interest being charged during the offer period will remove the financial incentive for customers to pay earlier during the offer period, but noted that the arguments put forward by the industry respondents were premised on customers having a fundamental understanding of the operation of daily interest accrual. Despite the move toward the provision of additional information, the FCA made it clear that they expect only small shifts in consumer behaviour as a result of this, and predict that the primary driver of benefits will be in structural changes to BNPL products.
As a result of this, the FCA was not swayed by firms’ feedback and is introducing the proposed new rules in CONC 6.7.16B which prevent firms from charging backdated interest on partial repayments made by consumers during the BNPL offer period. As a result, firms will be unable to charge any interest for amounts repaid within the BNPL offer period, irrespective of the point at which such sums are repaid during the period.
The FCA have accepted that the changes to the interest charging structure of BNPL products will necessitate substantial changes to core IT systems which will need to be planned, developed and tested. As a result, the partial repayment rules have been delayed and will come into force on 12 November 2019. The extension is designed to give the industry more time to implement the changes whilst benefitting customers shopping before Christmas.
Further considerations
The FCA considered feedback regarding the impact on the BNPL sector and wider economy, but did not consider these to be significant. The FCA had not seen strong evidence to support assertions that firms may withdraw from the BNPL market, and expected that market forces would lessen any significant price increases. Consumer access to credit was considered unlikely to be affected in any event as alternative forms would be available
Any impact on the wider economy was not considered to be a significant risk, as the underlying products concerned would still likely be purchased albeit potentially through alternative means if availability of BNPL products were to be limited as a result of the new rules.
The FCA will continue to monitor the market for any significant detrimental changes, and intervene where it considers appropriate.
If you require any further information on changes you will need to make to your BNPL products to comply with the new rules, please contact Jeanette Burgess.

Fracking, protestors and injunctions against ‘persons unknown’: Court[...]
In the recent case of Boyd v Ineos Upstream [1], a hotly anticipated appeal involving […]
In the recent case of Boyd v Ineos Upstream [1], a hotly anticipated appeal involving fracking protestors, the Court of Appeal has provided guidance on the highly topical subject of bringing injunctions against ‘persons unknown’. Walker Morris’ specialist Real Estate Litigator David Manda explains and offers some practical advice.
Why is this case important?
Granting injunctions against unidentified persons – even when it is not in the context of environmental or other protests – is controversial. That is because an injunction is a remedy which has serious ‘teeth’. An injunction is an order, issued by the court, for persons to do or not to do something. It contains a penal notice, which means that if an affected person breaches the injunction, he or she is in contempt of court and can be imprisoned. The severity of the potential consequences of an injunction means that it is vitally important that the order should only capture those persons/potential defendants and those particular circumstances that it absolutely needs to. Otherwise, there is a risk that innocent people could get caught in the cross fire.
However, there are myriad scenarios in which businesses, landowners or claimants generally may urgently need to prevent, and/or to protect themselves from, loss or damage which may be (or may have been) inflicted by wrongdoers who are, as yet at least, unidentified. One such scenario is (as here) where a landowner fears that protestors may cause damage or disruption to persons or property and wishes to pre-emptively take action to prevent that. Another is where a person has been a victim of, say, cybercrime/hacking and wishes to restrain the dissipation of stolen funds [2]. To enable those claimants to take the action they need to, the courts of England and Wales have acknowledged the possibility of bringing court proceedings for immediate injunctions against ‘persons unknown’.
Boyd v Ineos Upstream provides crucial guidance from the Court of Appeal as to how such proceedings should be framed.
What happened in Boyd v Ineos Upstream?
Fracking operators (Ineos) wished to commence fracking exploration on their sites. Significant protests had previously occurred against other fracking operators, and so Ineos, along with the freehold owners of their sites, successfully applied to the High Court, in 2017 [3], for various quia timet [4] injunctions to prevent unlawful acts (including trespass, public nuisance, harassment and conspiracy to injure by unlawful means) by as yet unidentified protestors.
Evidence submitted by Ineos to the High Court largely related to protests involving serious instances of trespass, including protestors locking themselves to structures, setting up of protest camps and blockading or obstructing access to fracking sites, resulting in court proceedings for possession and injunctive relief. Ineos also relied on the facts that acts of trespass by protestors requires protracted and expensive clear-up operations and have the potential to pose a serious risk of harm to protestors and others.
A key matter to be considered by the court, however, was the granting of interim injunctions against unidentified persons. Ineos argued that issuing court proceedings against ‘persons unknown’ was an established and permissible way to proceed; and further contended that they did not need to show that it was impossible for them to ascertain the names of the protestors who may be involved in the conduct subject to the injunctions. The High Court agreed and granted injunctions against four out of five of the defendants referred to as groups of ‘persons unknown’, so to restrain potentially unlawful acts of protest against fracking activity.
What did the Court of Appeal decide?
The case was appealed on the basis that the injunctions were too broad in scope; improperly brought against persons unknown; and unlawfully interfered with the protestors’ rights to freedom of expression and assembly under the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights.
After considering prior relevant case law [5], the Court of Appeal stated that it was “too absolutist” to say that a claimant can never sue persons unknown unless they were identifiable when the claim form was issued; and that there was no conceptual or legal prohibition against obtaining an injunction against persons unknown who were not currently in existence but may come into existence when the prohibited tort was committed. The Court of Appeal did warn, however, that the courts should be cautious about granting injunctions against unknown persons, as it is difficult to assess the reach of such an injunction in advance.
The Court of Appeal therefore “tentatively” offered the following principles pursuant to which an injunction against unknown persons could properly be granted:
- there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief
- it is impossible to name the person[s] likely to commit the tort unless restrained
- it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order
- the terms of the injunction must correspond to the threatened tort and are not so wide that they prohibit lawful conduct
- the terms must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do
- the injunction should have clear geographical and temporal limits.
Applying the principles, and allowing the appeal in part, the Court of Appeal discharged those injunctions that purported to prevent unknown people from taking part in protests which may affect Ineos’ suppliers, because they were too wide and uncertain, but upheld injunctions relating to trespass at a few sites. The latter were also remitted for the High Court judge to reconsider the temporal limit and Human Rights aspects.
What are the practical implications?
The Ineos case is an encouraging example of the courts adopting a common-sense and flexible approach. It emphasises the importance of, and seeks to address, the balance between providing a workable remedy for victims or potential victims of wrongdoing committed by or likely to be committed by as-yet unidentified persons on the one hand; and, on the other, precluding the granting of orders which are too wide, too uncertain and which may therefore have unintended and undesirable consequences.
As well as bearing in mind the Ineos principles for framing applications against persons unknown, potential injunction applicants/claimants should consider the following legal and practical points.
- An injunction is an equitable remedy. That means it is underpinned by fundamental fairness and awarded by the court at its discretion, as opposed to a legal remedy that is available as of right to a successful claimant. When exercising its discretion, the court will apply certain key principles of equity, including:
- the equitable maxim of clean hands. That is, anyone looking to equity for a remedy must be free of wrong doing him/herself
- the doctrine of ‘laches’ (delay). Delay can cause unfairness in itself and so an equitable claim may be barred if it is not brought within a timely manner.
- The American Cyanamid [6] guidelines are also used by the courts when deciding whether to grant an injunction. The guidelines consider:
- whether there is a serious, arguable case to be tried
- whether damages would be adequate as a remedy
- the ‘balance of convenience’ (i.e. which party would suffer the greatest prejudice were an injunction to be granted or not to be granted)
- whether the status quo should be maintained.
- In relation to quia timet relief and/or any injunction against ‘persons unknown’, applicants/claimants should focus on the specific actions or risks against which they are trying to guard, and should not try to obtain any wider injunction than is strictly necessary. Applications and notices should use clear, plain English wording and, where possible, should not include legal jargon or terminology.
- Ineos confirms that it is possible to obtain quia timet injunctions in respect of multiple sites and that evidence pertaining to different sites, even sites not owned by the applicant, can be relied upon.
- Applications for injunctions usually arise in pressured situations and there is often real urgency. Remaining calm throughout the process can help to keep stress levels, and mistakes, to a minimum; as can ensuring that you have an expert team around you.
For further advice, please do not hesitate to contact David Manda or any member of Walker Morris’ Litigation & Dispute Resolution department.
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[1] [2019] EWCA Civ 151
[2] See our briefing on a recent push payment fraud and freezing injunction case for further information and advice.
[3] Ineos Upstream Ltd v Persons Unknown [2017] EWHC 2945 (Ch)
[4] that is, anticipatory/pre-emptive injunctive relief
[5] in particular, Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch) and Hampshire Waste Services Ltd v Intended Trespassers [2003] EWHC 1738 (Ch)
[6] [1975] UKHL 1

Court takes practical approach in ‘contracting-out’ case
Commercial real estate litigation expert Martin McKeague, who specialises in advising retail landlords and tenants […]
Commercial real estate litigation expert Martin McKeague, who specialises in advising retail landlords and tenants on all aspects of portfolio management, explains a recent High Court case which highlights a number of practical considerations arising from the security of tenure ‘contracting out’ process.
Security of tenure and ‘contracting out’
The Landlord and Tenant Act 1954 (LTA 1954) affords to tenants who occupy premises for business purposes the right to remain in the premises after the expiry of the contractual lease term; and the right to seek a renewal lease. Since June 2004 landlords and tenants have been able to ‘contract out’ of these provisions, such that security of tenure doesn’t apply, and the tenant’s right to occupy therefore simply comes to an end at the end of the lease term.
Contracting out is achieved by the landlord’s service of a warning notice, followed by the tenant’s making of a statutory declaration acknowledging receipt of the notice and agreeing to give up its rights.
TFS Stores v BMG: Why is this case of interest?
In the recent TFS Stores v BMG [1] case, however, the tenant sought to renege on its contracting out. In a practical High Court decision that will be a relief to landlords, the tenant was given short shrift.
As is explained below, the case demonstrates the importance of ensuring that the correct procedures are followed to ensure that any contracting out is valid and effective.
The decision also highlights that it will be prudent, in many cases, for landlords to serve warning notices on the registered offices of their tenants, as well as on the tenants’ solicitors [2].
As a final legal and practical point, the case also clarifies that it is not necessary to specify a fixed calendar date, so long as the proposed tenancy can be identified.
What were the arguments in the TFS Stores case?
The Fragrance Shop (TFS), a large retail operator with over 200 stores nationwide, argued that six of its leases at a number of McArthur Glen outlet centres were protected by the LTA 1954, despite warning notices having been served, and statutory declarations having been executed, before it entered into the relevant agreements for lease or leases.
TFS’ main arguments were:
- Its solicitors did not have authority to accept service of the warning notices on its behalf. TFS’s solicitor had confirmed by email to the landlord’s solicitor that she could accept service of the warning notice on behalf of her client. TFS argued, however, that it had not authorised its solicitor to accept service and therefore that the warning notice had not been correctly served;
- The individuals who made the declarations on its behalf did not have authority to do so. The employee who made the declarations on TFS’s behalf was the retail director (not a statutory director); and
- The statutory declarations did not identify the commencement date of the contractual term. In two leases, the statutory declarations referred to the term commencing on the “Access Date”; and in the other leases the relevant wording was “for a term commencing on a date to be agreed between the parties” or “for a term commencing on the date on which the tenancy is granted”. TFS argued that no fixed calendar date was given and that this was ambiguous and therefore invalid.
As in interesting aside, the Landlord made a counterclaim against TFS pursuant to a provision which dates back to the eighteenth century, but which is still in effect today and can be an effective tactical tool for landlords. Section 1 of the Landlord and Tenant Act 1730 allows a landlord who has formally demanded possession to claim double the yearly value of the premises from a tenant that “wilfully” remains in occupation following expiry of its lease. The landlord therefore counterclaimed for twice the current rental value for TFS’ ‘holding over’ period.
What did the High Court decide?
His Honour Judge Davis-White QC dismissed TFS’ claim, concluding that the leases had been validly contracted out. The High Court held that:
- TFS’ solicitors did have authority to accept service of the warning notices as a result of their instructions to bring to completion the transaction reflecting the heads of terms, which referred to the leases being contracted out
- The retail director had responsibility for the negotiation of the leases and therefore had authority to make the statutory declarations on TFS’ behalf
- A fixed calendar date does not have to be given. The purpose of the requirements of section 38A and Schedules 1 and 2 of the LTA 1954 is simply to identify the tenancy in question and confirm the declarant’s understanding that the tenancy will be excluded from security of tenure protection otherwise afforded.
The landlord’s counterclaim was also dismissed. The High Court decided [3] that to be wilful in this context meant being more than merely deliberate – that is, the tenant had to have an intention to stay on in the premises knowing that it had no right to do so. That was not proven on the evidence in this case.
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[1] TFS Stores Limited v BMG (Ashford) Limited et al [2019] EWHC 1363 (Ch)
[2] See our earlier Walker Morris briefing for traps and tips when it comes to serving legal notices more generally
[3] in accordance with French v Elliott [1960] 1 WLR 40

Another retailer fined under consumer protection legislation
A Walker Morris’ Commercial Dispute Resolution and Retail specialist reports on the latest case in […]
A Walker Morris’ Commercial Dispute Resolution and Retail specialist reports on the latest case in which a retailer has been fined for misleading sales practices.
What do retailers need to know?
Earlier this year Walker Morris reported on the H Samuel case, in which the high street jeweller was fined for providing misleading pricing online. We anticipated that a new focus on compliance with consumer protection laws would result in increased scrutiny of retailers’ sales and marketing practices; we summarised some of the key aspects of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) of which retailers should be aware; and we offered some practical advice.
Just a few weeks later, and the Yorkshire Post has reported that Trading Standards have hauled another retailer before the courts – this time, The Energy Saving Centre Limited (t/a EnergiGlass), a company which sells and fits replacement windows.
As well as highlighting some key legal and practical points for retailers to note, this case is further evidence of a nationwide drive to investigate and ensure retailers’ compliance with consumer protection laws.
What happened in this case?
In the EnergiGlass case, the company was found guilty of using misleading sales practices – notably because it falsely claimed that customers would be entitled to receive government grants, subsidies and reimbursements if they replaced their windows.
The case highlights a number of key points:-
- Definition of ‘consumer’
- Under the CPRs, consumers are any individuals acting outside their trade, craft or profession.
- Where a commercial practice is aimed at a target market, the definition of consumer will refer to a member of that particular market.
- Where a group of consumers may be vulnerable in some way, for example first-time buyers or the elderly or infirm, the standards required of the business will be higher. That was particularly relevant in this case, where a number of EnergiGlass’ affected customers were elderly and included a Multiple Sclerosis sufferer and a blind woman.
- Crucially, consumers are not only those people who actually buy from or pay a business – they also include anyone who is a prospective customer. That means that offences can be committed even where no sale is actually concluded.
- Enforcement
- EnergiGlass was fined £48,000
- EnergiGlass was ordered to pay victim compensation of £17,400
- EnergiGlass was ordered to pay prosecution costs of £57,402.08
- The sole director was personally sentenced to a 16 week suspended prison sentence and disqualified from acting as a director for 4
- EnergiGlass and its director pleaded guilty – the fine, orders and sentence could all have been higher had they pursued an unmeritorious defence.
- Breach of the CPRs can attract both civil and criminal liability and it can attract liability both for the company and for individual directors personally. In this case:
- Trading Standards Officers (TSOs) have a right of entry to businesses, along with powers of inspection, seizure, detention of goods and documents (including computer records). TSOs can also require employees to attend interviews under caution. Disruption to the running of a business under investigation can therefore be significant.
- Obstructing a TSO or making false or reckless statements can incur penalties in the £000s and conviction for breach of the CPRs can result in unlimited fines and/or up to 2 years’ imprisonment.
- Additional consequences can (non-exhaustively) include: orders banning from undertaking certain work; orders revoking/varying/suspending credit licences; orders cancelling or varying permission to broker mortgages; and consumer redress schemes can require apologies, the payment of compensation of up to £25,000 and/or dismissal from the scheme – to mention but a few.
- Reputational consequences can potentially also, of course, be devastating.
Further advice
There are a number of practical steps that retailers can take – both to prevent breaches of consumer protection legislation and to mitigate any disruption or harm caused if and when any complaint or investigation is instigated. Such action can include ensuring that staff at all levels are properly trained; ensuring that proper policies and procedures are in place to govern sales practices and complaints protocols; ensuring that marketing materials are accurately drafted and maintained; and keeping a comprehensive audit trail that could demonstrate that all reasonable precautions were undertaken to try to avoid commission of the offence in the first place (so as to assist with any ‘due diligence’ defence that may be required).
Walker Morris’ Litigation & Dispute Resolution and Retail specialists are able to deliver expert, tailored advice and training to businesses concerned to ensure their compliance with consumer protection legislation. For further information or assistance, please do not hesitate to get in touch.