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THE TRADE DESCRIPTIONS ACT, 1968: HOLIDAY LAWS.

INTRODUCTION:


There are a few statutory provisions that impose a duty upon the tour operators to make their advertisements honest, truthful and accurate.


These three statutes are, the TRADE DESCRIPTIONS ACT 1968, the CONSUMER PROTECTION ACT 1987 and the PACKAGE TRAVEL REGULATIONS 1992.


The travel industry, often do not realize that the blunders they commit mistakenly are capable of labelling them as criminals. The mistakes committed by the tour industry may seem very common to them but that might not be always the case with the customers. The ambiguity created by the tour operators in the advertisements may mislead the customers but they do not realize that this can be taken to such grave point so as to label them as criminals. On this very point, covering this issue in a very landmark judgement of Wings v. Ellis [1984] 3 All E.R. 577, Lord Scarman said about the Trade Descriptions Act 1968 that it is not a truly criminal statute. Its purpose is not the enforcement of criminal law but the maintenance of trading standards. Trading standards, not criminal behavior, are its concern.

THE TRADE DESCRIPTIONS ACT 1968:


THE MOLONY COMMITTEE REPORT-


A committee appointed to consider measures “desirable for the further protection of the consuming public” is likely to be greatly influenced by its economic and political outlook whether it favors laissez faire (or as it is known in this context, caveat emptor and freedom of contract) or not. Although the Molony Committee recognizes that, as the consumer is in the weaker position than those with whom he deals, special measures be taken to protect him, it is not convinced that such measures ought to interfere radically with the basic structure of the law. Its approach to new legislation is rather like the lawyer’s approach to precedents: if something has already been done, it can be extended and improved, but the fact that it has not been done before is the most cogent argument for not doing it now.


The committee has been very, very careful to see that it cannot be criticized for going too far. Its assessment of its own approach is perhaps to be found in its paternal advice to the new Consumer Council: its conclusions “reflects a balanced judgement on the problem taking fully into account the production, commercial and practical difficulties.” One can feel confident that no difficulties have been lost sight of, though one cannot be so sure about advantages. The Committee has, indeed, been so intent on appearing reasonable and objective that it has not heeded the moral of The Bear who let it alone: “You might as well fall flat on your face as lean over too far backward.”


Lawyers like all other consumers (one who purchases (or hire-purchases) goods for private use or consumption”) will find much to interest them in all parts of the Report. But legal attention will naturally center on the proposals of reforming the law of sale of goods and hire-purchase. These include prohibition on some exclusion clauses in the sales of goods, a detailed review of implied conditions, and the extension of Hire-Purchase Acts by abolishing the money limits.


The Molony Committee Report on Consumer Protection 1962, identified that consumers needed to be protected against misdescription of goods and services. So, basically the Trade Descriptions Act was an attempt to implement the recommendations of the report relating to the misdescriptions.


There were three types of misdescriptions regulated by the Act of 1968, namely:

I. False trade descriptions of goods,

II. Misleading prices and

III. False trade descriptions relating to services.

THE RELEVANT PROVISIONS:


The sections of the Trade Description Act 1968 which relate to services and are therefore relevant to tour operators are set out below.


“14(1) It shall be an offence for any person in the course of any trade or business-


(a) to make a statement which he knows to be false; or

(b) recklessly to make a statement which is false; as to any of the following matters, that is to say-

(i) the provision in the course of any trade or business of any trade or business of any services, accommodation or facilities;

(ii) the nature of any services, accommodation or facilities provided in the course of any trade or business;

(iii) the time at which, manner in which or persons by whom any services, accommodation or facilities are so provided;

(iv) the examination, approval or evaluation by any person of any services, accommodation or facilities so provided; or

(v) the location or amenities of any accommodation so provided.

(2) For the purposes of this section-

(a) anything (whether or not a statement as to any of the matters specified in the preceding subsection) likely to be taken for such a statement as to any of those matters as would be false shall be deemed to be a false statement as to that matter; and

(b) a statement made regardless of whether it is true or false shall be deemed to be made recklessly, whether or not the person making it had reasons for believing that it might be false.

(3) In relation to any services consisting of or including the application of any treatment or process or the carrying out of any repair, the matters specified in subsection (1) of this section shall be taken to include the effect of the treatment, process or repair.


(4) In this section " false " means false to a material degree and " services " does not include anything done under a contract of service.


23 Where the commission by any person of an offence under this Act is due to the act or default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first mentioned person.



24 (1) In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defense for the person charged to prove-


(a) That the commission of the offence was due to a mistake or to reliance on information supplied to him or to act or default of another person, an accident or some other cause beyond his control; and

(b) That he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control.


(2) If in any case the defence provided by the last foregoing subsection involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence, unless within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.”


THE REQUIREMENT OF THE OFFENCE:


If a prosecution is to succeed then it has to be established that:


(a) A statement has been made;

(b) The statement must have been made in the course of trade or business;

(c) The statement relates to one of the categories specified in Section 14;

(d) The statement is false;

(e) The false statement was made knowingly or recklessly.

MAKING A STATEMENT-


Making a false statement does not only mean making a statement orally or in writing. False statements also include incomplete or false photographs published by the tour operators. In the case of Herron v. Lunn Poly (Scotland) Ltd [1972] S.L.T.2, an oral statement was made over the phone to the effect that a hotel was complete when it was not.

IN THE COURSE OF A TRADE OR A BUSINESS-


The main objective of the Trade Descriptions Act 1968 is to catch dishonest businesses, and not private individuals. In the case of London Borough of Havering v. Stevenson [1970] 3 All E.R. 609 a car hire firm sold a car with a false mileage. Although the firm was not a car dealer it nevertheless sold off its cars on a regular basis after they had been used for about two years. It was held that the sale was an integral part of the business. The car was not sold for the purposes of trade or business or even by way of trade or business but nevertheless it was in the course of trade or business.

THE STATEMENT MUST FALL WITHIN THE CATEGORIES LISTED IN SECTION 14-


Section 14(1) lists the categories of description which fall within the ambit of the Act. If a false description is published but it does not fall within the ambit of Section 14(1), then it will not constitute an offence. In the case of British Airways Board v. Taylor [1976] 1 All E.R. 65, which concerned a passenger who was “bumped” from a scheduled flight after he had been given a confirmed booking, was a prosecution under subsection 14(1)(b)(iii) for a false statement as to the time at which any services are provided.


THE STATEMENT IS FLASE-


The statement can prima facie be a false one, it can be a continuing false statement or it can be a false statement of fact or a fact intention of future intention. All these statements come under the ambit of falsity. The Trade Descriptions Act 1968 is directed at statements which are false. Therefore, any statement which is neither true nor false is not covered by this Act. In the case of Beckett v. Cohen [1973] 1 All E.R. 120, it was said:

“if…the person who provides the service makes a promise as to what he will do, and that promise does not relate to an existing fact, nobody can say at the date when that statement is made that it is either true or false. In my judgement Parliament never intended or contemplated for a moment that the Act should be used in this way, to make a criminal offence out of what is really a breach of warranty.”


THE STATEMENT MUST BE MADE KNOWINGLY OR RECKLESSLY-


For establishing the liability, it must be proved that the statement made by the person is false and he made such statement knowingly and dishonestly. Establishment of dishonest intention is imperative for the prosecution. In other words, the person making the false statement must have the requisite mens rea. In the case of Tesco Supermarkets Ltd. V. Nattarass [1972] A.C. 153, Lord Reid said that a company would only be criminally liable for the acts of:


“…the board of directors, the managing director and perhaps other supervisor officers of [the] company [who] carry out the functions of management and speak and act as the company.”

In R v. Thomson Holidays Ltd [1974] 1 Q.B. 592 Thomson had published a brochure with false statements in it. They were convicted in July 1972 of offences under Section 14(1)(b) of the Trade Descriptions Act 1968 by Stockport magistrates. In March 1973 a further prosecution was brought before Manchester Crown Court concerning the same false statements, although on this occasion the prosecution stemmed from different complainants. Thomsons pleaded “autrefois convict”, meaning that they had already been tried and found guilty of the offence. This defence depended on whether the statement is made only once or more than once. But it was found that such false statement was made on repetition. Thus an offence is committed every time someone new reads it. The Court of Appeal held therefore that Thomsons could be convicted again in Manchester on exactly the same grounds as in Stockport.


CONCLUSION:


The main objective of the Trade Descriptions Act 1968 is to save the consumers/customers/travelers from the false descriptions of the travel industry, which they use to lure the customers into entering into a contract with them. The Molony Committee Report was also about the weaker condition of the customers in respect of the people they deal with. They need to be protected from the false description and misrepresentations made by the travel agencies and tour operators. Apart from the Trade Descriptions Act 1968, there are other statutes for the protection of the consumers as well. They are the Consumer Protection Act 1987 and The Package Travel Regulations 1992.

Author: Navin Kumar Jaggi

Co-Author: Harshraj Shakdupia

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