Consumer Services Remedies
Remedy for failure to supply service
The consumer has the right to terminate a service contract where the trader fails to supply the service and fails to comply with a request to do so within an additional period. The consumer will have the right to terminate the contract immediately if the trader will not supply the service which is essential and had been notified of this by the consumer prior to the conclusion of the contract.
The exercise of the rights of the consumer and the obligations complied by the trader are those set out in the section on remedies.
Right to have a service brought into conformity with service contract
The consumer has a right to have a service brought into conformity with a service contract, but this will not apply where it would be impossible to do so. The trader must ensure the service is brought into conformity within a reasonable time, without significant inconvenience and free of charge to the consumer.
The reasonable time will be the shortest possible time necessary to remedy the lack of conformity and will meet specified criteria. Significant inconvenience will be determined by the nature of the service, its purpose, and other circumstances.
The trader’s obligations include, where such is necessary to bring the service into conformity, the removal of goods and the installation, as applicable, of replacement goods or repaired goods or bearing the costs of that removal and installation.
Right to a proportionate reduction in price or termination of service contract
There are r various situations where the trader cannot or will not bring a service into conformity with a service contract and in such circumstances the consumer will have the right to a proportionate reduction in the price or to terminate the contract. This will be objectively determined and the consumer may be required to accept further attempts by the trader in specific circumstances.
It will be objectively determined whether the lack of conformity is sufficiently serious to justify an immediate proportionate price reduction or termination of the contract having regard to the specific aspects of the nature and severity of the lack of conformity. The right to terminate the contract will not apply where the lack of conformity is minor, and the burden of proof is on the trader in case of dispute.
Price reduction: service contract
Where the consumer has a right to a proportionate price reduction, the right requires the trader to reduce the price required to be paid or for the consumer to receive a reimbursement of the price paid proportionate to the decrease in the value of the service supplied to the consumer if it was in conformity and to the period during which the service was not in conformity with the contract. The trader must reimburse the consumer where the right applies.
Obligations of consumer in event of termination of service contract
A a consumer must terminate the contract by a statement to the trader expressing such a decision. He must make available any goods/materials supplied for collection by the trader, refrain from using or making available to any third person any digital content or digital service supplied under the contract.
The consumer will not be required to return the goods, if it would cause a disproportionate inconvenience to the consumer or damage to his property, unless the consumer and trader agree to it. Where the consumer fails to return goods or materials as required, he will be liable in damages for any loss/damage suffered by the trader as a result of the failure.
Obligations of trader where service contract terminated
The trader must reimburse the consumer for all payments made under the service contract when he terminates it. The reimbursement will be proportionate to the time period the service was in non-conformity with the service contract and the part of the price paid in advance for any period the service contract would have remained if not terminated.
Time limits and means of reimbursement by trader service contract
The trader will make reimbursement that is owed to the consumer no later than 14 days beginning on the date he was informed of the consumer’s right to seek a proportionate price reduction or to terminate the contract; make it by the same means of payment used by the consumer unless agreed otherwise and at no cost to the consumer. Such failure will result in the trader being liable in damages for any loss/damage suffered by the consumer as a result of the failure.
General right to withhold payment: service contract
Where a trader fails to comply with an obligation imposed on him by the service contract provisions , the consumer has the right to withhold any outstanding part of the payment, until the trader fulfils the obligation.
The part of the price withheld will be proportionate to (i) the decrease in value of the service received by the consumer compared with its value if it was in conformity or (ii) the price payable for the period in which the service was not supplied by the trader.
The decision of the consumer will be expressed in a statement to the trader.
Effect of termination of service contract on ancillary contract
Any ancillary contracts are terminated along with the termination of a service contract without any cost to the consumer. The trader will inform any other trader with whom the consumer has an ancillary contract that it is terminated. Obligations apply to both trader and consumer where an ancillary contract is terminated.
Any security provided under a terminated ancillary contract will be treated as having no effect and any property lodged in this regard must be returned immediately by the trader or a person other than the trader. “Ancillary contract” is defined.
Remedies where contract also provides for supply of goods etc.
The consumer will have a right to obtain a proportionate price reduction or to terminate the contract, where the service also includes the supply of goods, digital content or digital service, under these conditions – as if it was a contract for the supply of a service only; the value of the goods, digital content or digital service would be reduced in the absence of the service. This will be objectively determined taking specific circumstances into account.
The consumer’s rights will not apply where a bundle of electronic communications services with/without terminal equipment includes elements of an internet access service or a number- based interpersonal communications service. This section does not apply to a consumer-hire agreement or a hire-purchase agreement.
Exclusion or limitation of liability of trader
A term of a service contract or of any other contract between a trader and a consumer will not exclude or restrict a trader’s liability under various listed provisions. Such a term of a contract will not be binding on the consumer.
Liability will not be excluded or restricted in relation to a right or remedy or enforcement of such a right/remedy, being put at a disadvantage for pursuing such a right/remedy, for rules of evidence or procedure or preventing/limiting an obligation.
An agreement in writing to engage with an alternative dispute resolution procedure does not exclude or restrict liability. A trader who contravenes this provision commits an offence.
Continuing entitlement to pursue other remedies
The remedies in Chapter 3 do not affect the right of a consumer to pursue other remedies where the service is not in conformity with a service contract provided that there is no duplication of claims. The other remedies include claiming damages; relying on failure of the trader to be compliant against a claim by the trader for payment of the price; seeking to recover money paid for a non-compliant service; recovery of costs from the trader for having the non-conforming service remedied elsewhere. An exclusion or limitation of a remedy in this section will be assessed for unfairness under Part 6.