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Maurice Holmes acts in defence of subrogated claim challenging the enforceability of trade association’s standard terms and conditions

(1) David Chambers; (2) Diana Chambers v Britannia Lanes of Cornwall Ltd

Liability insurers in the removals industry will welcome the dismissal of a consumer claim seeking to challenge the fairness and enforceability of the British Association of Removers’ Model Terms and Conditions (“the BAR Model Terms”).

Maurice Holmes instructed by Jane Martineau of Roose and Partners acted for the successful defendant, Britannia Lanes of Cornwall Ltd (“Britannia Lanes”).

Background

The claim – a subrogated action pursued by the Claimants’ home insurer, Liverpool Victoria (“LV”) – arose after damage was allegedly sustained to the Claimants’ possessions during a removal.

Britannia Lanes, described by the judge as “a long-established and reputable firm of removers” denied that the damage had occurred during the removal, but in any event relied on two clauses in the BAR Model Terms: a notification clause and a limited liability clause. The former required the Claimants to notify any loss or damage in writing within seven days of the removal. The latter limited the removers’ liability to a maximum of £40 per item in respect of any loss or damage caused by negligence or breach of contract.

Submissions

The Claimants contended that upon their request one of the Defendant’s employees had taken photographs of the damage on the day of the removal, and that this fulfilled the requirements of the notification clause. Further or alternatively the Claimants argued that both the notification clause and the limited liability clause were unfair and unenforceable pursuant to s.57 and/or s.62 of the Consumer Rights Act 2015 (“the 2015 Act”).

The Defendant submitted that the photographs, even if they had been taken, did not suffice for the purposes of the notification clause since axiomatically they were not in writing nor did they contain any writing. As to the fairness of the clauses, various contentions were made, including that:

  • The notification clause contained a proviso allowing for the seven-day period to be extended (a request which the Claimants had failed to make)
  • Absent prompt notification, it would be increasingly difficult for the Defendant to investigate the circumstances of any loss or damage
  • The limited liability clause provided that the Defendant would assume a greater liability upon payment of a fee by the Claimants (an option which they declined to exercise)
  • The agreement operated expressly on the basis that the Claimants had arranged their own insurance cover such that they would not be exposed in the event of loss or damage
  • The Defendant’s capacity to offer its services at competitive rates depended on its liability being both calculable and viable (not least for the purposes of its own insurance)
  • It had been open for the Claimants to seek the same services on alternative terms elsewhere
  • The BAR Model Terms have previously been considered by the OFT, and were drafted in collaboration with Hertfordshire Trading Standards under the Primary Authority Scheme

Amongst other authorities, the Defendant referred by analogy to Overseas Medical Supplies Ltd v Orient Transport Services Ltd [1999] 2 Lloyd’s Rep 273 (CA) at [10].

Decision

Dismissing the claim, the judge (Deputy District Judge Harrison, sitting in the County Court at Bury St Edmunds) held that on a true construction of the notification clause, it had not been complied with by the Claimants, with the effect that their claim could not succeed.

Addressing the fairness of the clauses in question, the judge held that they were “perfectly reasonable and enforceable“.

Comment

Although this decision is not binding, it is informative as to the courts’ approach in determining the enforceability of anti-consumer terms under the 2015 Act. The BAR Model Terms have been adopted and are in use by a large number of businesses. Moreover, the clauses in question (or, certainly, conceptually similar versions of them) are relatively commonplace across a wide range of consumer markets. A decision undermining their enforceability could have had significant ramifications.

Counsel were thanked for the “very thorough and very helpful way they have presented their respective cases“.



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