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More mileage in disclaimers
Published online by Cambridge University Press: 02 January 2018
Extract
It is thirteen years since the passing of the Trade Descriptions Act 1968 and case law has now largely determined the effect of the major provisions of the Act. There is little doubt statistically that the Act has had its primary impact upon the motor trade, and that the most prosecuted offence is that of the ‘clocked’ car. There is a lot of additional money to be made if a car is sold with a low mileage rather than with a high one. A high proportion of new cars are supplied to companies who keep these fleet vehicles for about two years and then sell them, often through the large motor auctions, whereby they come into the hands of the motor trade. These fleet cars will invariably have travelled in excess of sixty thousand miles. Too many of these cars are handled by several dealers and then are displayed for sale to the public with a mileage shown in the region of twenty to thirty thousand. All that can be said in such a case is that someone, somewhere along the chain of distributors, has fraudulently turned back the vehicle odometer but it is usually very difficult to prove who did it.
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References
1. Except perhaps with s.11, where the indifferent drafting has left general confusion and an unwillingness to prosecute except in the clearest cases.
2. Samuels ‘“Clocking” Mileometer or Odometer - False Trade Description’ (1979) 143 JP 533 comments. ‘The best solutions would be the compulsory fitting of the new tamperproof odometer, a sort of black box, like the tachometer, which would cost little, if anything, more and could ultimately resolve the problem (see Sunday Telegraph, 15 July 1979).
3. [1973] 1 WLR 1261.
4. [1971] SLT 121.
5. Although this article, and all the decisions, concern odometers, there are many other fields where a description cannot be removed without making the goods unsaleable e.g. an etching, or a hallmark.
6. See the further problem posed by Dorset County Council v Datsun (Bournemouth) Ltd (1981) 89 MR 16 where it was held that an offence is committed where an unaltered odometer of five digits reads sixteen thousand, when the vehicle has ‘been round the clock’ and the correct mileage is one hundred and sixteen thousand.
7. Stoody v Thomas and Sons (1945) KB 413; Wickens Motors (Gloucester) v Hall (1972) 13 All ER 759.
8. Section 18, Rulel, Sale of Goods Act 1979. The offence under s. 1(l)(b) is probably committed on delivery where the prosecution relies on an actual supply: Rees v Mundny [1974] 1 WLR 1284.
9. At least this is the approach of Lord Denning MR and has a high degree of judicial acceptance. See in particular Karsales (Harrow) v Wallis [1956] 1 WLR 936; Levison v Patent Steam Carpet Cleaning Co. Ltd [1977] 3 WLR 90.
10. The relevant part of s.24 reads:
(1) In an proceedings for an offence under this Act it shall …be a defence 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 the act or default of another person, an accident or some other cause beyind 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 person under his control.
(3) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trading description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods.
11. [1974] 1 WLR 1229.
12. Ibid. at 1233.
13. Ibid. at 1233.
14. He cannot do so because s.1(1)(b) as defined by s.6 covers ‘offers to supply’ see Harringay LBC v Piro Shoes Ltd [1976] Crim 1.R 462 and Stainthorpe v Bailey [1980]) RTR 7.
15. [1976] 1 WLR 1243 at 1248.
16. [1974] RTR 415; See similar comments in Taylor v Smith [1974] RTR 190.
17. [1974] RTR 415 at 421.
18. Ibid. at 421. It is quite clear that penalties are smaller where disclaimers however unsuccessful have been used.
19. See e.g. Kat v Diment [1951] 1 KB 34; Concentrated Foods v Chump [1944] KB 342; R v Ford Motor Co [1974] 3 All ER 489 Donnelly v Rowlands [1971] 1 All ER 9; Harrison v Freezemaster (1972) 80 MR 75; Kensington Borough Council v Riley [1972] RTR 122.
20. Norman v Bennett [1974] 1 WLR 1229 at 1232, per Lord Widgery CJ.
41. Waltham Forest LBC v TG Wheatley (Central Garuge) Ltd [1977] Grim LR 761; lbid. (No. 2) [1978] RTR 333; Zuwadski v Sleigh [1975] RTR 113.
22. Per Lawton J in R v Hammerton's Cars [1976] 1 WLR 1243; White v Collier (unreported); Lewis v Maloney (1978) 86 MR 123. It is submitted that the statement by Lord Widgery CJ in Norman v Bennett [1974] 1 WLR 1229 at 1233 that as between car dealers, it can be presumed as an implied undertaking that mileages cannot be guaranteed is, with respect, bad law.
23. [1976] 1 WLR 1243.
24. [1981] Crim LR 785.
25. [1981] RTR 380.
26. R v Hammerton's Cars [1976] 1 WLR 1243.
27. Implicit from Norman v Bennet., but cf. Holloway v Cross [1981] RTR 146, where a trader, having made a disclaimer in this form, then ‘estimated’ inaccurately the true mileage and was successfully prosecuted by the use of s.3(3).
28. This is backed by a requirement that traders take reasonable steps to verify the mileage, if possible with a signed statement from the previous owner (but cf. Naish v Gore [1971] 3 All ER 737), and in the absence of verification must positively report to the customer that the mileage cannot be verified as correct. This may in practice become more important if the courts follow the line recently taken by magistrates at the Wrekin who found VG Vehicles (Telford) guilty of an offence under s.14 of the Act where they displayed the standard notice that they were members of the MAA and subscribed to its Code of Practice, but had in fact not complied with four clauses of the code (see (1981) 89 MR91). It is understood that the advice as to disclaimers has now been omitted from the latest edition of the Code of Practice.
29. [1975] RTR 347, and see similar comments in Waltham Forest LBC v TG Wheatley (Central Garage) Ltd [1977] Crim LR 761 and Crook v Howells Garages (Newport) Ltd [1980] RTR 434.
30. See e.g. Barker v Hargreaves [1981] RTR 197; and Wandsworth LBC v Bentley 9 [1980] RTR 429.
31. [1981] RTR 380 at 384.
32. [1979] Crim LR 122.
33. [1981] Crim LR 502.
34. R v King [1979] Crim LR 122 included an undefended charge on the same facts under s.15, Theft Act 1968 of obtaining property (i.e. money) by deception. Where the sale is completed, this is an obvious alternative charge and, it is submitted, a charge of theft under s.1 Theft Act 1968 is not out of the question if R v Gilks [1972] 3 All ER 280 is correct. Since this article was written the Divisional Court has decided that disclaimers have no application to a charge under S.1(l)(a).
35. [1979] RTR 120.
36. Ibid. at 123. The remark is purely obiter
37. It is understood that the same point has arisen in a licensing appeal under the Consumer Credit Act 1974, where the practice was not considered favourably.
38. This appears to be the ratio of K Lill Holdings v White.
39. ‘Its main purpose is to protect consumers, the buyers of goods and services, from swindles, unfair practices, misdescriptions and false claims …’ G. Darling, House of Commons, Second Reading.
40. [1981] RTR 380 at 384.