Purely Creative Ltd & Ors v The Office of Fair Trading [2011] EWCA Civ 920 (29 July 2011)

Purely Creative Ltd & Ors v The Office of Fair Trading [2011] EWCA Civ 920 (29 July 2011)

The proper interpretation of paragraph 31 of Annex I to Directive 2005/29/EC is not acte clair; the provision applies to any action in relation to claiming a prize that is subject to the consumer paying money or incurring a cost, regardless of whether the cost is substantial or de minimis, and regardless of whether the method is recommended. The issues require a reference to the Court of Justice of the European Union for authoritative interpretation.

Citation
[2011] EWCA Civ 920
Parties
Appellant / Defendant: Purely Creative Limited; Appellant / Defendant: Strike Lucky Games Limited; Appellant / Defendant: The Winners Club Limited; Appellant / Defendant: McIntyre & Dodd Marketing Limited; Appellant / Defendant: Dodd Marketing Limited; Appellant / Defendant: Adrian Williams; Appellant / Defendant: Wendy Ruck; Appellant / Defendant: Catherine Cummings; Defendant Only: Peter Henry; Respondent / Claimant: The Office of Fair Trading
Jurisdiction
England and Wales
Judgment Date
29 July 2011
Procedural Posture
Civil Appeal / Appeal From Chancery Division to Court of Appeal; Appeal and Cross Appeal Stayed Pending Reference to CJEU
Outcome
Appeal and cross-appeal stayed; reference to the Court of Justice of the European Union ordered.
Legal Topics
Unfair Commercial Practices, Prize Promotions, Interpretation of EU Directives, Consumer Rights, Misleading Advertising
Consumer Protection European Union Law Commercial Law Unfair Commercial Practices Prize Promotions Interpretation of EU Directives Consumer Rights Misleading Advertising

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Parties

Purely Creative Limited

Appellant / Defendant

Strike Lucky Games Limited

Appellant / Defendant

The Winners Club Limited

Appellant / Defendant

McIntyre & Dodd Marketing Limited

Appellant / Defendant

Dodd Marketing Limited

Appellant / Defendant

Adrian Williams

Appellant / Defendant

Wendy Ruck

Appellant / Defendant

Catherine Cummings

Appellant / Defendant

Peter Henry

Defendant Only

The Office of Fair Trading

Respondent / Claimant

Procedural Posture

Civil Appeal / Appeal From Chancery Division to Court of Appeal; Appeal and Cross Appeal Stayed Pending Reference to CJEU

Legal Issues

  1. 1 Proper interpretation of paragraph 31 of Annex I to Directive 2005/29/EC and its implementation in UK law
  2. 2 Whether requiring consumers to incur a cost to claim a prize constitutes a banned unfair commercial practice
  3. 3 Whether the cost must be substantial or de minimis to engage the prohibition

Ratio Decidendi

The proper interpretation of paragraph 31 of Annex I to Directive 2005/29/EC is not acte clair; the provision applies to any action in relation to claiming a prize that is subject to the consumer paying money or incurring a cost, regardless of whether the cost is substantial or de minimis, and regardless of whether the method is recommended. The issues require a reference to the Court of Justice of the European Union for authoritative interpretation.

Court Disposition

Appeal and cross-appeal stayed; reference to the Court of Justice of the European Union ordered.

Orders

  • Stay of appeal and cross-appeal.
  • Reference to the CJEU on interpretation of paragraph 31 of Annex I to Directive 2005/29/EC.