The Construction Industry Council responds to the BIS Committee’s pre-legislative scrutiny of the draft Consumer Rights Bill.
CIC has made a submission to the BIS Committee’s pre-legislative scrutiny of the draft Consumer Rights Bill. In general the CIC welcomes this initiative to clarify and consolidate existing legislation, and at the same time strengthen consumer rights.
The draft bill covers the supply of goods and services to consumers in a wide variety of circumstances ranging from changing a washer to designing a substantial refurbishment to a mansion house. The CIC supports the government’s intention to provide one consolidated piece of legislation to cover this wide range of services, but does have some reservations about the way the draft bill would work for architects and other designers working for consumers.
In particular, there is a provision that a contract will include anything spoken to the consumer by the ‘trader’ about the service. The CIC considers that this could give rise to lengthy disputes about what was said, and that it would be clearer for both parties if the consumer could rely on written statements only, made prior to entering into the contract.
In addition, the CIC recommends that the written statements should be “reasonably” taken into account by the consumer. This would recognise the iterative nature of the design and the costings for a project, which often develop over a period of time.
The proposal in the draft bill is that these written (and possibly spoken) statements should be treated as part of the contract if the consumer makes any decision about the service after entering into the contract on the basis of those statements. This creates uncertainty about the contract terms, if they are in part dependent on whether the consumer has taken them into account. This provision could also work against the consumer if the statements made restricted their rights under the original contract.
The draft bill also proposes that consumers should have a right to require repeat performance of a service which has been performed inadequately, unless it is impossible to do so. The CIC recommends that this should be restricted to circumstances where a repeat of the performance is feasible as well as being possible. There are many circumstances where it is not appropriate for a service to be repeated, and it is not practicable to give consumers this right when the courts cannot realistically enforce it. The courts do not have the resources to check whether the performance of a service has been repeated adequately, and in most circumstances usually awards damages as the remedy for inadequate performance.