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Currys price promise refusal backed by High Court

Identical kit not identical

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A court case over Currys' terms and conditions has exonerated the retailer over its refusal to honour a price promise. The shop argued that a tumble dryer offered for sale was different to an identical model in another shop which came with a vent kit.

Though the case was lost in the District Court by Currys, a crucial set of questions was referred to the High Court by the trial judge, and the High Court has now backed Currys.

Consumer Angela Addison was shopping for a tumble dryer and came across a Hotpoint TDL 52P, for sale at Currys for £159.99 and at Comet for £119.99.

Noting that Currys also displayed price promise signs saying that they would "not be beaten on price", Addison asked for the price promise to be honoured. That request was refused, at which point Addison informed the shop that she was a Trading Standards enforcement officer for Stockton-on-Tees Borough Council.

She returned two days later with a colleague to check the prices and later purchased the tumble dryer from Currys after the price promise was again refused. Currys' owner, DSG Retail Ltd, was prosecuted by Stockton-on-Tees Borough Council under the Consumer Protection Act of 1987. DSG Retail Ltd was accused of giving misleading price indications.

When the case reached court, Currys argued that the reason the price promise was not honoured was that its machine came with a vent kit, which the Comet machine did not, which meant that the product was not identical and therefore not eligible for the price promise.

Addison said that nobody at the shop made that argument and that the first time she heard that as an explanation, or even noticed mention of a vent kit on her receipt, was during her cross-examination.

One of the High Court judges reviewing the case, Lord Justice Waller, said that he had some "anxieties" about the case, and that "one has a feeling that the prosecution were probably ambushed by what happened in the putting of the case to the prosecution witnesses".

Nonetheless, the High Court has backed Currys in its assertion that the two products were not identical and that Addison was therefore not eligible for a price promise discount.

The District Court judge had asked the High Court to review the case and answer three questions which centred on a request for guidance in whether or not he was right to rule that the two products were essentially the same.

That original trial had heard from the manager of the Comet store that sometimes machines came with a vent kit and sometimes they did not. "In the light of that, I consider that it was not open to the tribunal of fact to come to the conclusion on the basis of the evidence before him that it was established to the criminal standard that the products were identical," said the High Court's Justice Lloyd. "Even taking account of the fact that one must take the prosecution evidence at its highest, I consider that there was insufficient evidence to meet the criminal standard.

"The respondent says that at no point during the two-day trial did the appellant state that the refusal to honour the Price Promise was due to the product not being identical," said Lloyd. "That may well be the case, but to my mind it does not answer the point. This narrow basis of putting the case to be found in the charges turns on a comparison of the two products. If they were not identical, the case would not be made out on this narrow basis, whether or not that was appreciated by the appellant."

The court ruled that the cost of the appeal would be met by the local authority. The authority asked that it not be made to pay costs, but Waller argued that the authority did not have to take the appeal. "The whole problem probably arises (a) out of the nature of the charge, and (b) out of no application for an adjournment once ambushed," he said. "You can already tell from the terms of what I said and I think what my Lord has said that we feel some sympathy for you, but you did not have to fight this appeal."

See: The ruling

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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