Through the Earl of Lytton, the CIC’s liability panel proposed amendments when the Bill reached the House of Lords on 22nd October.
The Consumer Rights Bill is intended to ‘clarify and enhance’ consumer rights. It will apply to all contracts that involve a consumer, including the appointment of consultants. The Construction Industry Council is concerned that the legislation is framed in the kind of terms appropriate to buying a television set but not to the more complex transaction of commissioning builders or construction consultants.
Clause 50 of the Bill states that anything ‘said or written’ to the consumer (e.g. during the briefing process) will become a binding term of the contract, if the consumer chooses to rely on it. CIC is concerned that the ‘spoken’ element of this provision has potential to create significant problems and sought some inclusion of an element of ‘reasonableness’ (ie that the customer’s reliance should be reasonable) to give some protection to a builder or construction consultant. CIC also wanted to add an amendment to cover the situation in which it would be unreasonable for a customer to be able to hold a consultant to the original statement if the consultant set out to clarify that within a short period thereafter.
In the end both amendments were rejected. The CIC said that although its amendments were not successful, it considered it to have been useful to introduce them as it allowed a debate on the applicability of the provisions of the Bill to the construction industry.
Baroness Neville-Rolfe, speaking for the government, said that she felt that the Clause as currently drafted placed the burden of proof on the consumer to show that he or she must have relied on the information provided. In her view she felt that this was sufficient to protect traders from unreasonable claims. Lord Lytton withdrew the amendment, but remarked that he intends to return to some of the points raised at a later stage.
The CIC said that it should be noted that the Courts, when interpreting legislation, can use debates in Hansard to determine the rationale behind a particular clause in legislation. Professor Sarah Lupton, chairman of the CIC liability panel, commented: “The debate in the House of Lords may therefore prove useful to a consultant or contactor who is prosecuted under the new Act.”