The Supreme Court’s decision in Robertson v Swift

The Supreme Court’s decision in Robertson v Swift

I am interested to know commercial lawyers' reactions to the Supreme Court's decision in Robertson v Swift [2014] UKSC 50. It centred on the Cancellation of Contracts made in a Consumer's Home, or Place of Work etc Regulations 2008 (the 2008 regulations), which in turn implemented Council Directive (85/577/EEC). It may have wider implications than its mundane facts would tend to suggest.

I question whether this was a case deserving of the Supreme Court’s time and whether the court’s reasoning stacks up.

By the time the decision was handed down, the  2008 regulations had been replaced with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the 2013 regulations).

The decision is unlikely to radically change consumers' rights in practice. There should be little work for the 2008 regulations to do now that the 2013 regulations are in force. The Supreme Court may have decided a moot point. This may explain why the court was satisfied with two 'feasible' interpretations and preferred one over the other without stopping to decide on the right one.

On the other hand, the judgment may be an important addition for understanding and evaluating how courts approach statutory interpretation, particularly domestic laws which implement European directives. There is also the interplay between decisions of the Supreme Court and decisions of the Court of Justice of the European Union to be considered.

As a hypothetical exercise, if we were to markup paragraphs 7 and 8 of the 2008 regulations as they were interpreted by the Supreme Court, they would look like this:

‘7.           Right to cancel a contract to which these Regulations apply

(1) A consumer has the right to cancel a contract to which these Regulations apply within at any time prior to the expiration of the cancellation period...

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