PERSISTENT ROGUE TRADERS

 

By Fair Trading Act 1973, s.34(1) the Director General of Fair Trading is is required to obtain an assurance where a person in the course of his business has “persisted in a course of conduct” which is:

(a) detrimental to the interests of consumers in the United Kingdom, whether those interests are economic interests or interests in respect of health, safety or other matters, and

(b) regarded as unfair to consumers.
Conduct is regarded as unfair to consumers if it amounts to:

1. contravention of an enactment imposing duties, prohibitions or restrictions enforceable by criminal proceedings; or

2. breaches of contract or other wrongs enforceable by civil proceedings.

There is no need for the Director General to have prosecutions or findings of civil liability for an assurance to be sought so long as there is sufficient evidence of unfair practices eg., from public complaints. The issue of whether a course of unfair conduct is persistent depends on the number of incidents in relation to the size of the trader.

Where a trader refuses to give an assurance not to carry on unfair practices or fails to abide by an assurance the Director General can undertake court proceedings in the Restrictive Practices Court, or the county court in those instances where the company’s share capital is less than £10,000. Where a trader breaches an order of the court restraining malpractice then this is punishable by contempt. In order to prevent the status of a limited company being used to evade an assurance for example where the directors of X Ltd which has had to give an assurance set up in business as Y Ltd – the Director General has power to seek an assurance, order, or undertaking from an “accessory” who has consented to or connives at the company’s conduct.