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Litigation and the consumer interest; the class action and beyond

Published online by Cambridge University Press:  02 January 2018

Richard H. S. Tur
Richard H. S. Tur*
Affiliation:
Oriel College, Oxford
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Extract

The enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system.

[M. Cappelletti]

Acts and regulations are of little value unless they are observed. A major cause of consumer weakness in the past has lain in the inadequate enforcement of the many laws in his favour.

[Molony Report, 1962, para. 869]

The statute book bears eloquent testimony that the law has been regarded as an appropriate vehicle for protecting the consuming public. The Molony Report, 1962, has borne much legislative fruit and, 20 years later, enthusiasm for legislation in the consumer interest does not appear to be waning.

Type
Research Article
Information
Legal Studies , Volume 2 , Issue 2 , July 1982 , pp. 135 - 171
Copyright
Copyright © Society of Legal Scholars 1982

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References

1. Jeremy Phillips Contracts for the provision of consumer services: A case for reform?’ (1981) 131 NLJ 916.

2. Lawson, R. G. ‘Advertising Controls in the EEC’ (1977) 127 NLJ 563 Google Scholar. Although the EEC issued a draft Directive on misleading and unfair advertising (March 1976) a report of the Director General of Fair Trading in 1978 concluded that the sweeping legal controls there advocated were unnecessary and this view has been subsequently endorsed by a Government Working Party in 1980.

3. Joel v Law Union and Crown Insurance Co [1908] 2 KB 868 at 885 per Lord Moulton, ‘… few of those who insure have any idea of how completely they leave themselves in the hands of the insurers should the latter wish to dispute the policy when it falls in’. The Law Commission (No. 104) 1980, 10.5; ‘The present law as to non-disclosure is defective. The mischiefs of the present law cannot be cured by voluntary measures of self-regulation…’

4. (1981) Times, 5 November, p. 13 (editorial).

5. Gordon Bonie and Aubrey L. Diamond The Consumer Society and the Law (4th edn, 1981) p. 337

6. Borne and Diamond op. cit. p. 336.

7. Kropotkin ‘Law and Authority’ in The Essential Kropotkin (Capouya and Tompkins, eds) p. 27.

8. Renner The Institutions of Private Law p. 259.

9. Allott The Limits of Law (1980) Ch. 6B, especially pp. 174–5.

10. Borrie and Diamond op. cit. p. 12.

11. Layton and Holmes ‘Consumerism -A passing malaise or a continuing expression of social concern’ 46 Aust Quarterly 6 at 23.

12. Ibid.

13. Ex p Island Records Ltd [1978] 1 Ch 122 at 141.

14. Jaffe, Louis L. English and American Judges as Lawmakers (1969) p. 13 Google Scholar; though the bulk o: the work is devoted to demonstrating the limits of the orthodox view.

15. See the like sentiments regarding freedom of contract per Sir George Jessel MR jr Printing and Numerical Registering Co Ltd v Sampson (1875) LR Ex 462 at 465.

16. Jones r National Coal Board [1957] 2 QB 55 at 63.

17. [1977] 2 WLR 201 at 219.

18. [1977] 3 All ER 452.

19. Dutton v Bognor Regis UDC [1972] 2 WLR 299 at 313.

20. [1966] 3 All ER 77.

21. [1976] AC 443.

22. At 469.

23. Ibid.

24. At 490–91.

25. Regents of the University of California v Bakke (1978) 438 US 265.

26. [1977] AC 239.

27. [1977] 3 All ER 70.

28. [1973] 1 All ER 689.

29. (1979) SLT 279.

30. (1980) SLT (Notes) 83.

31. Pure Theory of Law p. 32.

32. Rudolph von Ihering Der Kampf ums Recht (1872); tr. Philip Ashworth The Battle for Right (1883).

33. Op. cit p. 41.

34. E.g. Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, a House of Lords decision overtaken by a ‘gentleman's agreement’ among members of the British Insurance Association.

35. D. 1.3.32.1.

36. Cf. McKendrick v Sinclair (1972) SLT (HL) 110 at 116–117, per Lord Simon ‘a rule of English common law, once clearly established, does not become extinct merely by disuse’. It may ‘go into a cataleptic trance’ but it can be revived ‘in propitious circumstances’ unless it is ‘grossly anomalous and anachronistic’. Statute Law (Repeals) Acts rehearse in their preambles that they repeal acts which ‘are no longer of practical utility’.

37. Op. cit. p. 42.

38. See R. H. S. Tur ‘Varieties of Overruling and Judicial Law-Making; Prospective Overruling in a Comparative Perspective’ (1978) JR 33.

39. (1964) AC 465.

40. [1980] 1 All ER 571.

41. Op. cit. pp. 44–45.

42. op. cit. p. 46.

43. General Theory of Law and State p. 84.

44. Ibid.

45. Ibid.

46. The Royal Commission on Criminal Procedure (1981) Cmnd. 8092; 7.47. The argument based on the premise is, however, fundamentally misconceived. It is not how often the power is used but that it may be used which provides the safeguard against official inaction or incompetence. Recent events in Scotland (January 1982) concerning a failure to prosecute for rape, a consequential resignation of a Solicitor-General for Scotland and subsequent private action by way of Criminal Letters illustrates the point clearly enough.

47. See Appendix F to Research Study No. 10 presented by the Royal Commission on Criminal Procedure which lists over 100 such statutes.

48. Turner v DPP (1978) 68 CA Rep 70.

49. [1923] 2 KB 832.

50. At 841.

51. At 842.

52. [1976] 1 All ER 727.

53. [1978] Ch 122.

54. At 134–135.

55. (1974) 59 Cr App Rep 303.

56. [1976] 1 All ER 727.

57. FTC v Kelsner (1929) 280 US 19at 28, per Mr Justice Brandeis, ‘Although the aggregate of the loss entailed may be so serious and widespread as to make the matter one of public consequence, no private suit would be brought to stop the unfair conduct, since the loss to each of the individuals is too small to warrant it’.

58. (1974) SLT (Sh Ct) 34 (mass accident).

59. [1976] 1 All ER 697.

60. [1976] 2 All ER 686.

61. Section 14(1).

62. 1974-75 Taxation 403.

63. R. G. Lawson ‘The Fair Trading Act, 1973; A Review’ (1981) 131 NLJ 1178, offers an assessment which is no basis for complacency.

64. The Great Crash p. 171.

65. Royal Commission on Criminal Procedure; Research Study No. 10, ‘Prosecutions by Private Individuals and Non-Public Agencies’ (1980) pp. 126–8.

66. R v Commissioner for Police for the Metropolis ex p Blackburn [1968] 2 QB 118.

67. Royal Commission on Criminal Procedure; Research Study No. 10, pp. 126–8.

68. M. Cappelletti Access to Justice Vol. 111, p. 519.

69. Homburger, (1971) 71 Columbia L Rev 609 at 641.

70. See the quite excellent Australian Law Reform Commission Discussion Paper No. 11, ‘Access to the Courts - II Class Actions’ (1979).

71. Naken v General Motors of Canada (1979) 21 Ontario Reports 780.

72. Rule 12(1).

73. Duke of Bedford v Ellis [1901] AC 1 at 9, per Lord MacNaughten.

74. [1910] 2 KB 1021.

75. [1979] 3 All ER 507.

76. [1981] 2 All ER 838.

77. [1980] 1 All ER 571 at 576.

78. [1975] 3 All ER 92.

79. (1979) 442 US 330.

80. Eisen v Carlisle and Jacquelin (1974) 417 US 156.

81. (1979) 21 Ontario Reports 780.

82. Gabel v Hughes Air Corpn. (1972) 350 F Supp 624; Dougan v Glasgow Rangers FC (1974) SLT (Sh Ct) 34.

83. Prudential Assurance [1979] 3 All ER 507 at 521.

84. (1967) 63 CA R 724.

85. Some assistance may be derived from the report of a working party on ‘group actions’ sponsored by the Scottish Consumer Council and expected to be published in 1982.

86. Seidman, (1970) 5 Law and Society Rev 161 at 200–201.

87. Fisch, (1979) 27 American Journal of Comparative Law 51 at 58.

88. Cranston Consumers and the Law p. 98.

89. Fisch loc. cit. p. 79.

90. Cmnd. 1781, para. 403 (1962).

91. Cranston op. cit. p. 100.

92. Law No. 73–1193 (December 1973).

93. Langbein Comparative Criminal Procedure: Germany (1977) p. 114.

94. S.I. 1976 No. 1813; S.I. 1978 No. 127.

95. Hadmor Productions Ltd v Hamilton [1981] 2 All ER 724; cf. [1982] 2 WLR 322.

96. Local Government (Scotland) Act 1973, s. 189.

97. Public Health (Scotland) Act 1897, s. 146.

98. Schwartz and Wade Legal Control of Government (1972) p. 291.

99. See Watt v Kesteven CC [1955] 1 QB 408.

100. IRC v Federation of Self-Employed [1981] 1 All ER 93 at 107.

101. Scott (1973) 86 Harvard L Rev 645 at 6731.

102. [1981] 1 All ER 93 at 107.

* The author expresses his thanks to Richard Thomas of the National Consumer Council for comments on an earlier draft of this paper and the Council itself for permitting substantial use of a research paper which the author prepared. He expresses his appreciation to fellow members of the Scottish Consumer Council Working Party on Group Actions for comments on points of argument and detail over many meetings. He benefited from comments from members of the SPTL Consumer Law Group to whom a version of this paper was presented at their annual conference in September 1981; and he thanks Allison Coleman, Aberystwyth, for many helpful comments in the preparation of this version of the paper for publication.