Bairstow Eves London Central Ltd v Smith & Anor [2004] EWHC 263 (QB) (20 February 2004)

Bairstow Eves London Central Ltd v Smith & Anor [2004] EWHC 263 (QB) (20 February 2004)

The operative price under the agreement was 1.5% commission, with a default provision escalating to 3% if payment was not made within 10 days. This escalation was not shielded by regulation 6(2) and was subject to fairness assessment under regulation 5(1). The 3% clause was unfair and not binding on the consumer.

Citation
[2004] EWHC 263
Parties
Claimant/appellant: Bairstow Eves London Central Limited; Defendant/part 20 Claimant/respondent: Adrian Smith; Defendant/part 20 Claimant/respondent: Stacy Hill; Part 20 Defendant/respondent: Darlingtons (A Firm)
Jurisdiction
England and Wales
Judgment Date
20 February 2004
Procedural Posture
Appeal / High Court (queen's Bench Division) Appeal From County Court Judgment
Outcome
Appeal dismissed
Legal Topics
Unfair Terms in Consumer Contracts, Interpretation of Contractual Terms, Remedies for Breach of Contract
Contract Law Consumer Protection Unfair Terms in Consumer Contracts Interpretation of Contractual Terms Remedies for Breach of Contract

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Parties

Bairstow Eves London Central Limited

Claimant/appellant

Adrian Smith

Defendant/part 20 Claimant/respondent

Stacy Hill

Defendant/part 20 Claimant/respondent

Darlingtons (A Firm)

Part 20 Defendant/respondent

Procedural Posture

Appeal / High Court (queen's Bench Division) Appeal From County Court Judgment

Legal Issues

  1. 1 Whether the Unfair Terms in Consumer Contracts Regulations 1999 applied to the 3% commission term in the agency agreement
  2. 2 Whether the 3% commission clause was unfair and not binding on the consumer under the Regulations

Ratio Decidendi

The operative price under the agreement was 1.5% commission, with a default provision escalating to 3% if payment was not made within 10 days. This escalation was not shielded by regulation 6(2) and was subject to fairness assessment under regulation 5(1). The 3% clause was unfair and not binding on the consumer.

Court Disposition

Appeal dismissed

Orders

  • Bairstow's appeal dismissed; the 3% commission clause is not binding on the vendors under the Unfair Terms in Consumer Contracts Regulations 1999.