Office of Fair Trading v Foxtons Ltd [2008] EWHC 1662 (Ch) (17 July 2008)

Office of Fair Trading v Foxtons Ltd [2008] EWHC 1662 (Ch) (17 July 2008)

In a collective challenge under the Unfair Terms in Consumer Contracts Regulations 1999, the court assesses the fairness of a term by reference to a typical consumer and typical circumstances. The OFT cannot obtain an injunction restraining Foxtons from enforcing or relying on the challenged terms in all existing contracts, as this would preclude consideration of individual circumstances in future litigation. The claim for such a wide injunction is struck out. However, the OFT may seek declarations and injunctions relating to the use of the terms in future contracts.

Citation
[2008] EWHC 1662 (Ch)
Parties
Claimant: The Office of Fair Trading; Defendant: Foxtons Limited
Jurisdiction
England and Wales
Judgment Date
17 July 2008
Procedural Posture
Civil (part 8 Claim) / Interlocutory Application to Strike Out Parts of Claim
Outcome
Application granted in part; words 'enforcing, attempting to enforce or otherwise relying on' struck out from the claim for injunctive relief; remainder of claim proceeds.
Legal Topics
Unfair Terms in Consumer Contracts, Collective Vs Individual Challenge, Declaratory Relief, Injunctions, Interpretation of EU Directives
Consumer Law Contract Law Civil Procedure Unfair Terms in Consumer Contracts Collective Vs Individual Challenge Declaratory Relief Injunctions Interpretation of EU Directives

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Parties

The Office of Fair Trading

Claimant

Foxtons Limited

Defendant

Procedural Posture

Civil (part 8 Claim) / Interlocutory Application to Strike Out Parts of Claim

Legal Issues

  1. 1 Whether the OFT can obtain an injunction restraining Foxtons from enforcing or relying on allegedly unfair terms in existing contracts with consumers
  2. 2 Whether the OFT can obtain declarations that certain terms are unfair and not binding on consumers in all contracts
  3. 3 Distinction between collective (pre-emptive) and individual challenges under the Unfair Terms in Consumer Contracts Regulations 1999

Ratio Decidendi

In a collective challenge under the Unfair Terms in Consumer Contracts Regulations 1999, the court assesses the fairness of a term by reference to a typical consumer and typical circumstances. The OFT cannot obtain an injunction restraining Foxtons from enforcing or relying on the challenged terms in all existing contracts, as this would preclude consideration of individual circumstances in future litigation. The claim for such a wide injunction is struck out. However, the OFT may seek declarations and injunctions relating to the use of the terms in future contracts.

Court Disposition

Application granted in part; words 'enforcing, attempting to enforce or otherwise relying on' struck out from the claim for injunctive relief; remainder of claim proceeds.

Orders

  • Strike out of words 'enforcing, attempting to enforce or otherwise relying on' in paragraph 15(c) of the endorsement on the Claim Form.
  • Claim for declarations and other relief may proceed.