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

[2008] EWHC 1662 (Ch)Case No HC08C00498
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2008
Before
MR JUSTICE MORGAN
Between
The Office of Fair TradingClaimantFoxtons LimitedDefendant
Nicholas Green QC and Helen Davies QC (instructed by The Office of Fair Trading) for ClaimantsMichael Kent QC and Andrew Davis (instructed by Mishcon de Reya) for DefendantsHearing Hearing dates: 10 th July 2008
Judgment

Introduction

[1]This judgment concerns Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts (“the Directive”) and the Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”) and, in particular, the role of the Office of Fair Trading and the powers of the court in relation to the Directive and the Regulations.[2]The Office of Fair Trading (“the OFT”) was established as a body corporate by section 1(1) of the Enterprise Act 2002 (“the 2002 Act”). The functions of the OFT are carried out on behalf of the Crown: section 1(2). Section 1(3) gives effect to Schedule 1 to the 2002 Act. By paragraph 13 of Schedule 1, the OFT has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions. By sub-sections (1) and (2) of section 2, the functions of the Director General of Fair Trading are transferred to the OFT and the office of the Director is abolished. By section 2(3), references in earlier enactments to the Director are read as references to the OFT. As will be seen, the Regulations refer to certain functions being performed by the Director General of Fair Trading. By reason of the 2002 Act, those functions are transferred to the OFT.[3]Foxtons Limited (“Foxtons”) is a large and well-known estate and lettings agent. According to a circular letter sent by Foxtons to clients or potential clients, Foxtons have in excess of 90,000 potential residential tenants registered with them and seeking accommodation.

Foxtons’ terms and conditions

[4]Foxtons have a standard form of agreement which records the terms and conditions on which Foxtons will act as agents for a landlord in connection with a letting of that landlord’s property. Those terms and conditions refer to two levels of service: a Lettings Service and a Comprehensive Management Service. It is not necessary for present purposes to describe the detail of those services.[5]Foxtons’ standard terms and conditions may have changed from time to time but the set of terms which is relevant in the present dispute was the set of terms supplied by Foxtons to the OFT in 2007 when the OFT asked Foxtons for their current set of terms.[6]The set of terms referred to above includes the following terms:
“1.0 Introduction of Tenant 1.1 In the event that Foxtons introduces a tenant who enters into an agreement to rent the landlord’s property, commission becomes payable to Foxtons Ltd. (Please see 6.3 regarding outstanding fees.) The commission fee is payable on or before the commencement of the tenancy and upon any extension(s), renewal(s) or hold-over(s) thereof, and for any further periods for which rental income is received (hereafter referred to as renewal commission, see 2.14 below), whether or not negotiated by Foxtons. The scale of commission fees charged is as set out on pages 1 and 2”. 1.2 The commission fee is payable for any tenant introduced to the property by Foxtons, whether or not the tenancy is finalised by Foxtons. The commission fee is charged as a percentage of the total rental value of the agreed term as specified in the tenancy agreement, or where the tenant extends and/or holds over indefinitely, commission will be payable for the same period as the initial agreement subject to clause 1.5 below. …. 1.5 If the landlord or tenant terminates the tenancy agreement prior to the end of the tenancy term, and if in accordance with any break clause contained in the tenancy agreement at the time the agreement was executed. Foxtons will refund the commission for the remaining period of the tenancy. The commission will be refunded within 14 days of the tenant vacating the property. 2.14 Renewals and Extensions 2.14.1 Foxtons will endeavour to contact both landlord and tenant before the end of the tenancy to negotiate an extension of the tenancy, if so required. 2.14.2 We will also draw up the appropriate documents for the renewal of the tenancy for signature by both parties. The charge to the landlord for this is £ 60. 2.14.3 Renewal commission will become due in respect of renewals, extensions and hold-overs or new agreements where the original tenant remains in occupation. It will also become due where the incoming tenant is a person, company or other entity associated or connected with the original tenant, either personally, or by involvement or connection with any company or other entity with whom the original tenant is or was involved or connected. Where there is more than one tenant, renewal commission will be payable in full where any or all of them remain in occupation. Commission is due whether or not the renewal is negotiated by Foxtons. 2.14.4 Renewal commission is charged in advance, either as a percentage of the rental value of the new agreed term or where the tenant extends and/ or holds over indefinitely, commission will be payable for the same period as the initial agreement subject to clause 1.5 above. The scale of commission fees charged is as set out on pages 1 and 2. …. 5.1 Sale of Property to Tenant In the event that the tenant, occupant or licensee of the property enters into an agreement with the owner/ landlord to purchase the property, a commission of 2.5% of the purchase price becomes payable by the owner/ landlord to Foxtons when contracts for the sale of the property are exchanged. Foxtons reserves the right to defer payment of this commission until completion. 5.2 Sale of Property By Landlord Where a property is sold, transferred or otherwise dealt with, with the benefit of a tenancy, Foxtons’ fees remain the responsibility of the original landlord for the duration of the tenancy and for any extensions, renewals or periods of holding-over, irrespective of whether negotiations were carried out by Foxtons. The landlord should instruct his solicitor to assign responsibility for Foxtons’ fees to the purchaser.”
In the event that the tenant, occupant or licensee of the property enters into an agreement with the owner/ landlord to purchase the property, a commission of 2.5% of the purchase price becomes payable by the owner/ landlord to Foxtons when contracts for the sale of the property are exchanged. Foxtons reserves the right to defer payment of this commission until completion. Where a property is sold, transferred or otherwise dealt with, with the benefit of a tenancy, Foxtons’ fees remain the responsibility of the original landlord for the duration of the tenancy and for any extensions, renewals or periods of holding-over, irrespective of whether negotiations were carried out by Foxtons. The landlord should instruct his solicitor to assign responsibility for Foxtons’ fees to the purchaser.”

The Claim

[7]On 25 February 2008, the OFT brought the present proceedings against Foxtons. The proceedings were brought by a Part 8 Claim Form. The endorsement on the Claim Form is some 8 pages long and runs to some 15 paragraphs.[8]The Claim Form pleads various provisions of the Regulations. It then sets out the terms which are said to be Foxtons’ standard terms, as set out above in this judgment.[9]Paragraph 11 of the endorsement states: “The Claimant has received complaints from consumers concerning Foxton’s (sic) standard residential lettings terms, and takes the view that as, used in contracts concluded with consumers, Foxton’s (sic) standard residential lettings terms are unfair within the meaning of regulation 5 (1) of the [Regulations] because: (a) Clauses 2.14.3 and 2.14.4, together with those parts of clauses 1.1, 1.2 and 1.5 relating to renewal commission (collectively “the renewal commission clause”) of those terms (and their previous equivalents) purport to entitle Foxtons to charge a landlord renewal commission (“the renewal commission”) if a tenant introduced by Foxtons (or an individual or company or other entity introduced by, or otherwise connected, with that tenant either personally, or by involvement or connection with any company or other entity with whom the original tenant is or was involved or connected) renews, extends or otherwise holds over his or her tenancy agreement or signs a new tenancy agreement, including in circumstances where Foxtons does not negotiate the renewal, extension or hold-over or provide any service(s) to the landlord in relation to that renewal, extension or hold-over. Further, the renewal commission is charged in advance, either as a percentage of the rental value of the new agreed term or where the tenant extends and/or holds over indefinitely, for the same period as the initial rental agreement; (b) Clause5.1 of those terms (and its previous equivalents) (“the sales commission clause”) purports to entitle Foxtons to charge a landlord sales commission (“the sale commission”) in the event that he or she sells his/her rental property to the tenant, occupant or licensee of the property, even if Foxtons neither negotiates the sale price nor assists in any way with the sale. Further, such sales commission is payable at the rate of 2.5% of the sale price; (c) Clause5.2 of those terms (and its previous equivalents) (“the third party renewal commission clause”) purports to entitle Foxtons to recover any renewal commission from a landlord under the renewal commission clause, even after the landlord sells his interest in the rental property to another landlord.[10]Paragraph 12 of the endorsement states:
“Further or alternatively, and contrary to the requirements of Regulation 7(1) of the [Regulations]: (a) the renewal commission clause, and in consequence, the third party renewal commission clause, is not expressed in plain or intelligible language. In particular, both clauses purport to extend the class of person or persons whose occupation of the rental property will trigger the obligation to pay a renewal commission to Foxtons beyond the original tenant, but fail plainly or intelligibly to specify the nature of the relationship required between the original tenant and any other person for that obligation to pay renewal commission to arise; and/or (b) the sales commission clause is not expressed in plain or intelligible language, because the clause purports to extend the class of person or persons to whom the sale of the rental property will trigger the obligation to pay a sales commission to Foxtons beyond the original tenant to encompass other occupants or licensees, but fails plainly or intelligibly to specify the nature of the relationship (if any) required between the original tenant and such other occupants or licensees for that obligation to pay sale commission to arise.”
[11]The endorsement then pleads that all of the clauses referred to were not individually negotiated and are unfair in that, contrary to the requirement of good faith, they cause a significant imbalance in the parties’ rights and obligations to the detriment of Foxtons’ consumer landlord customers.[12]Paragraph 15 of the endorsement sets out the relief sought by the OFT and is in these terms:
“In the premises, and in order to prevent harm to the interests of consumers, the Claimant seeks: (a) a declaration that the renewal commission clause, the sales commission clause and/or the third party renewal commission clause of Foxtons standard residential lettings terms, or any similar terms or terms having like effect, are unfair terms in contracts concluded with consumers and, accordingly, that these clauses are contrary to Regulation 5(1) of the [Regulations] and are not binding on consumers pursuant to Regulation 8 (1) of the [Regulations] ; and/or (b) a declaration that contrary to the requirements of Regulation 7(1) of the [Regulations] the renewal commission clause, the sales commission clause and/or the third party renewal commission clause are not expressed in plain or intelligible language; and/or (c) an injunction pursuant to Regulation 12 of the [Regulations], restraining Foxtons (whether by itself, its agents or howsoever) from infringing the [Regulations] in the respects identified in paragraph 10 and/or 14 above or any of them and/or from using, recommending for use, enforcing, attempting to enforce or otherwise relying on any such terms and/or similar terms and/or terms having like effect in contracts concluded with consumers. (d) costs. (e) such further or other relief as the court may direct.”
[13]The Claim Form is supported by a witness statement of a Mr Allen of the OFT. His witness statement runs to some 30 pages and exhibits some 208 pages of documents. It is only necessary for present purposes to refer to a few features of this evidence. First, Mr Allen explains the OFT’s perception that many landlords of residential property will come within the definition of “consumer” in the Regulations. Then in paragraphs 32 to 45, Mr Allen refers to certain complaints that have been made to the OFT, or have otherwise come to the attention of the OFT, as regards Foxtons’ standard terms and conditions and more particularly the renewal commission clause and the sales commission clause. In paragraphs 32 and 33 of his witness statement, Mr Allen states (the emphasis is added by me):
“As I have explained above, the OFT has received a number of complaints from landlords about the detrimental consequences of the use by letting agents of these three types of term. In the case of Foxtons, the complaints received to date have specifically related to the renewal commission clause and the sales commission clause. By way of background to the issues that arise in this action, and in order to illustrate the detriment to the consumer that the OFT considers is being occasioned by the use of these clauses, I summarise the nature of these complaints below. In each case the details I set out below are taken from the information that has been provided to the OFT by the complainant. Although (as I explain further below) in some cases the original information provided has been supplemented by further information sought in connection with these proceedings, as the OFT does not investigate or rule on individual complaints, the OFT has generally not taken steps to verify the accuracy of the statements made to it in this respect, other than considering such documents as have been provided by the complainant as part of their complaint. However, as I refer to these matters as illustrations only and to demonstrate the fact that there have been complaints, I do not believe it is necessary for the Court to consider or determine any specific aspect of any of these complaints that might arise in order to resolve the issues between the OFT and Foxtons in this action. In a number of instances, the individual making the complaint has not given his or her consent to the OFT disclosing his or her identity for the purposes of these proceedings. In these instances, I therefore refer to the complaint by reference to the location of the property concerned. The name of the landlord and exact address has also been redacted from the documents exhibited relating to their complaint.”
[14]In paragraphs 53 to 70 of his witness statement, Mr Allen explains in detail the case which the OFT wishes to put to the court as to the unfairness of the relevant terms in use by Foxtons.

The application

[15]On 17 March 2008, Foxtons applied to strike out parts of the endorsement on the Claim Form. That application was amended during the hearing of this application. As amended, the application is to strike out paragraphs 15(a), 15(b) and 15(c) (in so far as 15(c) seeks to restrain enforcement of terms in existing contracts) and 15(e) of the endorsement. Further, the application is to strike out the endorsement in so far as the OFT seeks any remedy in respect of previous equivalent terms and/or superseded contractual terms. The application also refers to the need for particulars and for further directions.[16]At the hearing of the application, Mr Kent QC and Mr Davis appeared on behalf of Foxtons and Mr Green QC and Ms Davies QC appeared on behalf of the OFT.

The Directive

[17]It is necessary to refer to a number of the provisions in the Directive. I will first refer to the recitals and then to the executive Articles of the Directive.[18]The Directive contains the following recitals which may be material:
“Whereas it is the responsibility of the Member States to ensure that contracts concluded with consumers do not contain unfair terms; …Whereas, in order to facilitate the establishment of the internal market and to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own, it is essential to remove unfair terms from those contracts; … Whereas Member States must however ensure that unfair terms are not included, particularly because this Directive also applies to trades, business or professions of a public nature; Whereas it is necessary to fix in a general way the criteria for assessing the unfair character of contract terms; Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirement of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account; …Whereas, for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject matter of the contract nor the quality/price ratio of the goods or services supplied; whereas the main subject matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; whereas it follows, inter alia, that in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability shall not be subject to such assessment since these restrictions are taken into account in calculating the premium paid by the consumer; Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail; Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions; … Whereas persons or organizations, if regarded under the law of a Member State as having a legitimate interest in the matter, must have facilities for initiating proceedings concerning terms of contract drawn up for general use in contracts concluded with consumers, and in particular unfair terms, either before a court or before an administrative authority competent to decide upon complaints or to initiate appropriate legal proceedings; whereas this possibility does not, however, entail prior verification of the general conditions obtaining in individual economic sectors; Whereas the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts,”
[19]The Articles of the Directive which may be relevant are:
“Article 3 1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. 2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him. 3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair. Article 4 1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. 2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language. Article 5 In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7 (2). Article 6 1. Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms. 2. Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States. Article 7 1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. 2. The means referred to in paragraph 1 shall include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms. 3. With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.”

The Regulations

[20]The Regulations are expressed in similar language to that used in the Directive. The relevant Regulations are: Unfair Terms 5. -(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair. …Assessment of unfair terms 6. - (1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. (2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate- (a) to the definition of the main subject matter of the contract, or (b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange. Written contracts 7. - (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language. (2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.Effect of unfair term 8. - (1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.… (a). the complaint appears to the Director to be frivolous or vexatious; or (b). a qualifying body has notified the Director that it agrees to consider the complaint. (2). The Director shall give reasons for his decision to apply or not to apply, as the case may be, for an injunction under regulation 12 in relation to any complaint which these Regulations require him to consider. (3) In deciding whether or not to apply for an injunction in respect of a term which the Director considers to be unfair, he may, if he considers it appropriate to do so, have regard to any undertakings given to him by or on behalf of any person as to the continued use of such a term in contracts concluded with consumers.… (a). it has notified the Director of its intention to apply at least fourteen days before the date on which the application is made, beginning with the date on which the notification was given; or (b). the Director consents to the application being made within a shorter period. (3). The court on an application under this regulation may grant an injunction on such terms as it thinks fit. (4) An injunction may relate not only to use of a particular contract term drawn up for general use but to any similar term, or a term having like effect, used or recommended for use by any person. 27. Powers of the Director and qualifying bodies to obtain documents and information 13. - (1) The Director may exercise the power conferred by this regulation for the purpose of- (a). facilitating his consideration of a complaint that a contract term drawn up for general use is unfair; or (b). ascertaining whether a person has complied with an undertaking or court order as to the continued use, or recommendation for use, of a term in contracts concluded with consumers. 30. … 31. Publication, information and advice 15. - (1) The Director shall arrange for the publication in such form and manner as he considers appropriate, of- (a). details of any undertaking or order notified to him under regulation 14; (b). details of any undertaking given to him by or on behalf of any person as to the continued use of a term which the Director considers to be unfair in contracts concluded with consumers; (c). details of any application made by him under regulation 12, and of the terms of any undertaking given to, or order made by, the court; (d). details of any application made by the Director to enforce a previous order of the court. (2). The Director shall inform any person on request whether a particular term to which these Regulations apply has been- (a). the subject of an undertaking given to the Director or notified to him by a qualifying body; or (b). the subject of an order of the court made upon application by him or notified to him by a qualifying body; 39. and shall give that person details of the undertaking or a copy of the order, as the case may be, together with a copy of any amendments which the person giving the undertaking has agreed to make to the term in question. (3) The Director may arrange for the dissemination in such form and manner as he considers appropriate of such information and advice concerning the operation of these Regulations as may appear to him to be expedient to give to the public and to all persons likely to be affected by these Regulations.

The First National Bank decision

[21]This case concerned the regulations made in 1994 to give effect to the Directive. The 1994 regulations have been replaced by the Regulations. For present purposes the 1994 and 1999 regulations are in much the same terms, although they are not identical. This was the first case in which the Director General of Fair Trading sought an injunction under what is now Regulation 12 of the Regulations. So far as the reports of the case are concerned, the Director’s claim was for an injunction and there was no supporting or additional claim to declaratory relief.[22]At first instance ([2000] 1 WLR 98) the claim failed and no injunction was granted. In the Court of Appeal ([2000] QB 672) the claim succeeded in part. The Court of Appeal commented in its judgment on submissions it had heard as to the form of any injunction or an undertaking in place of an injunction. It left the parties to consider the terms of an appropriate undertaking. The parties then agreed on an undertaking in place of an injunction. The undertaking as agreed between the parties is referred to at the end of the report of the Court of Appeal’s judgment. The Bank’s appeal to the House of Lords was allowed ([2002] 1 AC 481).[23]In that case, Lord Steyn explained that the 1994 regulations (like the Regulations) provided for two systems of challenge to a term. He said at [33]:
“The Directive made provision for a dual system of ex casu challenges and pre-emptive or collective challenges by appropriate bodies: see article 7. This system was domestically enacted in the 1994 Regulations, with the Director General of Fair Trading as the administering official to investigate and take action on complaints: see regulation 8. The 1999 Regulations extended the system of enforcement by including other bodies as qualified to undertake pre-emptive challenges. The system of pre-emptive challenges is a more effective way of preventing the continuing use of unfair terms and changing contracting practice than ex casu actions: see Susan Bright, "Winning the battle against unfair contract terms" (2000) 20 LS 331, 333-338. It is, however, to be noted that in a pre-emptive challenge there is not a direct lis between the consumer and the other contracting party. The Directive and the Regulations do not always distinguish between the two situations. This point is illustrated by the emphasis in article 4.1 of the Directive and regulation 4(2) on the relevance of particular circumstances affecting a contractual relationship. The Directive and the Regulations must be made to work sensibly and effectively and this can only be done by taking into account the effects of contemplated or typical relationships between the contracting parties. Inevitably, the primary focus of such a pre-emptive challenge is on issues of substantive unfairness.”
[24]This distinction between a collective or pre-emptive challenge to a term (where the OFT seek an injunction under Regulation 12) and an individual challenge to a term (where the proceedings involve the consumer and the other contracting party) is of great importance in the present case, as I will explain below.[25]Lord Bingham explained what was involved in the assessment of unfairness. He said at [17]:
“A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith. The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties' rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty. The illustrative terms set out in Schedule 3 to the Regulations provide very good examples of terms which may be regarded as unfair; whether a given term is or is not to be so regarded depends on whether it causes a significant imbalance in the parties' rights and obligations under the contract. This involves looking at the contract as a whole. But the imbalance must be to the detriment of the consumer; a significant imbalance to the detriment of the supplier, assumed to be the stronger party, is not a mischief which the Regulations seek to address. The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4(1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.”

The difference between an individual challenge and a collective challenge

[26]When the court is concerned with an individual challenge, it will be able to apply the requirements of the Regulations as to the assessment of fairness, as expounded by Lord Bingham, to the specific facts of the case. With an individual challenge, there will be facts which show the court “all the circumstances attending the conclusion of the contract”. There will be “all the other terms of the contract”. There will be facts which will enable the court to assess whether there was fair dealing. In accordance with the guidance given by Lord Bingham, the court will be able to consider the individual facts as to “the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, [or] weak bargaining position”. These are matters which the court must take into account in the case of an individual challenge. If the court were to leave such matters out of account in the case of an individual challenge, then the court would be failing to comply with the requirements of the Regulations.[27]With a collective or pre-emptive challenge, the court is not looking at the facts of an individual case. In that way, there will not be specific facts before the court which enable the court to consider “all the circumstances attending the conclusion of the contract” nor “all the other terms of the contract”. There will not be specific facts which will enable the court to assess whether there was in fact fair dealing. The court will not be able to consider the individual facts as to “the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, [or] weak bargaining position”. As Lord Steyn explained, it is nonetheless necessary to make the Regulations work sensibly and effectively in the case of a collective or pre-emptive challenge. This is achieved by taking the case of typical parties. Lord Bingham also referred to the position of “typical parties”: see at [20]. The court takes the case of typical parties because it has to do so to make the Regulations work in the case of a collective or pre-emptive challenge. In my judgment, it is clear that the references to typical parties in the First National Bank case are for the purpose of a collective or pre-emptive challenge only. In the case of an individual challenge the language of the Directive and of the Regulations and of Lord Bingham’s speech make it clear that one has regard to the actual circumstances and the actual parties.[28]Mr Green submitted that the above reasoning was wrong. He submitted that the court takes the case of a typical consumer whether one is dealing with a collective challenge or an individual challenge. His reason for making that submission seemed to me to be because he wanted to sustain the OFT’s claim to an injunction and declaratory relief which proceeded on the basis that if the OFT succeeded with its collective challenge, it necessarily followed that the same result would be arrived at in every case of every contract, regardless of the particular circumstances which attended the conclusion of the individual contract and regardless of the circumstances of the individual consumer.[29]I can see no basis for Mr Green’s submission in this respect. It is contrary to the language of the Directive, the Regulations and the speech of Lord Bingham. To accept that submission would also do a disservice to some consumers. For example, in the case of an actual consumer who was more vulnerable than a more robust typical consumer, on Mr Green’s approach, the court would disregard the actual circumstances of the actual consumer and impute to him or her the greater robustness of a typical consumer.[30]In my judgment, it is entirely possible that a term would not be regarded as unfair when considered as part of a collective challenge but could be regarded as unfair on an individual challenge.[31]Further, the possible dichotomy in result between the two types of challenge could work the other way. It could be that a term which was considered to be unfair as part of a collective challenge could be considered fair on an individual challenge. Take the renewal commission term in this case. Let it be assumed that that term will be held to be unfair on a collective challenge. There could nonetheless be an actual case in the past where the term had been used and where the circumstances were such that Foxtons and a fairly shrewd and sophisticated landlord (albeit still a consumer) discussed the term in detail and, as a result of the landlord’s concerns over the term, the rate of commission on the initial letting and on any renewal was reduced from, say, 11% to, say, 6%. I would not rule out the possibility that in such a case a term which had been regarded as unfair in the case of a typical consumer might be regarded as fair in the case of an actual consumer.[32]Further, the possibility that the individual circumstances might mean that the term was not regarded as unfair in an individual case is illustrated by the decision of the Court of Appeal in Bryen & Langley Ltd v Boston [2005] EWCA Civ 973. In that case the special facts surrounding the agreement of the standard term were such that the court held that it could not possibly say that there had been a breach of the principle of fair dealing and that rendered it unnecessary for the court to consider whether on an objective assessment, the term caused a significant imbalance between the parties to the detriment of the consumer: see at [44] – [46] per Rimer J (as he then was).[33]The examples given in paragraphs 31 and 32 above are not intended to be exhaustive as to the possibilities of a different result being arrived at in an individual case as compared with a finding by the court on a collective challenge that the term in question is unfair.

The claim to an injunction

[34]The injunction claimed by the OFT is set out in paragraph 15(c) of the endorsement on the Claim Form: see paragraph 12 above.[35]The only parties to this claim are the OFT and Foxtons. The OFT has not joined any individual customer of Foxtons who may have previously entered into a contract with Foxtons, on terms which included the terms which are now challenged by the OFT. The OFT has not attempted to join such a customer and to obtain an order under CPR r.19.6 to the effect that such a customer should be a representative of other customers who have “the same interest” in the subject matter of the claim. A representation order is unlikely to be appropriate where the assessment of unfairness in individual cases, as described above, will or may turn on the specific facts of those individual cases.[36]The witness statement of Mr Allen, on behalf of the OFT, part of which I have quoted at paragraph 13 above, says in terms that the OFT is not asking the court to rule on the facts of individual cases.[37]The above considerations point strongly to this claim by the OFT being a collective challenge to some of Foxtons’ standard terms.[38]There is no doubt that the OFT has locus standi to bring a collective challenge pursuant to Regulation 12 of the Regulations. Under Regulation 12(1), the OFT can seek an injunction against Foxtons in so far as Foxtons is using or recommending use of an unfair term drawn up for general use in contracts concluded with consumers. Under Regulation 12(4), such an injunction may relate not only to a particular term but also to any similar term, or a term having like effect. Under Regulation 12(3), the court may grant an injunction under Regulation 12 on such terms as it thinks fit.[39]Accordingly, the OFT is clearly entitled to plead a claim to relief which follows the wording of Regulation 12(1) and 12(4). The issue is whether the OFT is entitled in a collective challenge under Regulation 12 to claim an injunction against Foxtons: “ … enforcing, attempting to enforce or otherwise relying on any such terms and/or similar terms and/or terms having like effect in contracts concluded with consumers”.[40]If an injunction is granted against Foxtons using the relevant terms after the date of the injunction, then there ought not to be further contracts concluded with consumers which contain the prohibited terms. If Foxtons failed to comply with the injunction, then Foxtons would prima facie commit a contempt of court. It would seem to be unnecessary to have an injunction to restrain Foxtons from relying upon a prohibited term which they included in a contract after the date of the injunction and which was in breach of that injunction. In any event, the injunction claimed by the OFT is not confined to contracts made after the date of the injunction; it extends to all contracts concluded with consumers at any time.[41]If the OFT brings a successful collective challenge to some or all of the Foxtons’s terms and if the OFT obtains an injunction as to the use of those terms by Foxtons in future contracts, that is very likely to have a real impact, in practice, on Foxton’s ability to rely successfully on such terms in relation to previous contracts which contain those terms. The OFT will be likely to give publicity to its successful collective challenge. If Foxtons seek to rely upon one of the challenged terms in an earlier contract, they will have to realise that the court which deals with any disputed claim will have the precedent of the decision of the High Court in these present proceedings. The ratio of the decision of the High Court in these present proceedings, dealing with the case of a typical consumer, will be binding on a county court in relation to a claim in that court. The decision of the High Court will be of persuasive authority as regards future claims in the High Court. If Foxtons were to sue a consumer landlord for sums said to be due under the term which has been successfully challenged in these proceedings, Foxtons would have to show that the position of the consumer in such a case was sufficiently different from the position of the typical consumer considered by the court on what has been, on the relevant hypothesis, a successful challenge by the OFT to the relevant term.[42]If an injunction were granted in accordance with paragraph 15(c) of the endorsement, then Foxtons would be in breach of such an injunction by writing to a customer under a contract concluded in the past and asking that customer to pay in accordance with the terms which the OFT has successfully challenged. Foxtons would also be in breach of such an injunction in bringing proceedings against such a customer in circumstances where Foxtons intended to submit to the court in those proceedings that the consumer in that case was to be distinguished from the position of the typical consumer in the case of the successful challenge by the OFT.[43]In my judgment, an injunction which restrained Foxtons from relying upon the relevant term in a previously concluded contract in a case where Foxtons intended to argue that the circumstances of the individual case were materially different from the circumstances of the typical consumer in the collective challenge goes beyond what is permitted by Regulation 12. Such an injunction would deprive Foxtons of their right to litigate and to have the determination of the court in a case of an individual challenge to the relevant term. If the injunction were granted as asked, then the court would be ruling on Foxtons’ rights in an individual case, in fact in every individual case, without complying with the requirements of the Directive and of the Regulations, as expounded by the speech of Lord Bingham in the First National Bank case, in that the court would be failing to have regard to the specific circumstances of the individual case.[44]Mr Green on behalf of the OFT contended otherwise. He submitted that even in an individual case, one considered a typical consumer and not the actual consumer. He said that one considered typical circumstances and not the actual circumstances. I have already rejected that submission.[45]Mr Green also submitted that there are some terms which are so irredeemably unfair that there is simply no prospect of any individual case ever arising in which the court would be persuaded to hold that the relevant term was not unfair in that individual case. He referred me to the decision of the ECJ in Oceano Grupo Editorial SA v Quintero [2000] ECR I – 4941. The issue in that case was whether, in a case brought against an individual consumer, the court could investigate the unfairness of the relevant term of its own motion. It was held that in such a case the court could act of its own motion; see also Claro v Centro Movil Milenium SL [2006] ECR I-10421. In Oceano , the Court thought that the relevant term was unfair. However, in Freiburger v Hofstetter [2004] ECR I-3403, the Court considered the role of the ECJ and of the national court in relation to the determination as to whether a particular term was unfair. It stated that the issue of unfairness turned on all the facts and was for the national court; see also Claro v Centro Movil Milenium SL.[46]In my judgment, what the court should do in the case of a collective challenge is to assess the fairness of the term having regard to a typical consumer and typical circumstances. The court cannot be expected to assess whether, on the facts of cases not disclosed to the court, there is or is not a possibility that there might be a case where the term would not be considered to be unfair. The court may well feel that an exceptional case was unlikely but the court would be reluctant in the extreme to say that such a case could never arise. Even if there were a remote possibility of one such exceptional case, that would disentitle the OFT from the injunction it seeks, which makes no exceptions.[47]Mr Green then submitted that if the court were able to conclude that Foxtons would fail in the vast majority of cases where, in the past, they had used the relevant term, then that would justify the grant of the injunction sought. I disagree. In those circumstances, the injunction would unjustifiably override Foxtons’ rights in the minority of individual cases which were different from the vast majority.[48]Mr Green then submitted that the injunction sought was justified by the word “use” in Regulation 12. He submitted that Foxtons were “using” the relevant term if they sought to rely upon it in relation to a contract previously entered into. He submitted that “use” was not confined to putting forward the term in a draft contract in the future. It does not seem to me to be necessary to consider what precisely is involved in the word “use” in this context. Even if Mr Green were right, he still cannot overcome the difficulty that the exercise which will be conducted by the court in these proceedings will involve assessing the fairness of the relevant term on the basis of a typical consumer in typical circumstances, whereas the injunction sought purports to cover all individual contracts entered into in the past, where the characteristics of the consumers and the circumstances, in one or more cases, might have been different.[49]I now turn to consider what the court should do at this early stage in these proceedings in relation to the claim to an injunction. At one time, I could see the force of a submission that I should do nothing. The court could allow the claim to go forward and be determined. The court would have to decide on the basis of a collective challenge whether the relevant terms were unfair. At that stage the court could decide what relief to grant. If the OFT succeeded in its collective challenge and persisted in seeking the injunction as claimed, and if the trial judge took the same view as I take of the scope of Regulation 12, then the trial judge could refuse to grant the full width of the injunction claimed. I have however decided not to take the approach of doing nothing, for two reasons.[50]The first reason is that I have heard the OFT’s submissions as to the basis of their claim to the wider injunction and I am able to come to the clear conclusion that it is wrong in a number of its submissions. There is therefore some utility in deciding those points at this stage.[51]My second reason relates to the arguments presented by the OFT on this application. When Mr Green presented the OFT’s case, he suggested that there was some sort of evidential burden on Foxtons to show that there was no individual case (or possibly, not many such cases) in existence where the position would be different on an individual challenge from this collective challenge. He referred to Foxtons not having produced evidence of any such circumstances. He also was prepared to contemplate disclosure by the OFT of documents in their possession, relating to individual complaints where the complainant had wanted the complaint to remain confidential. He seemed to contemplate that the court would be asked to address the specific facts of individual cases so that, perhaps, the court would take the view that there could not be an individual case which was different from the typical case or that such individual cases would be few and far between and could be ignored.[52]In my judgment, it is desirable for both parties to know the scope of the investigation which will be undertaken in this collective challenge. In accordance with authority, this collective challenge will proceed on the basis of a typical consumer and typical circumstances. This collective challenge will not determine all the issues which might arise in individual cases. The injunction sought is too wide and could not be granted in these proceedings. To give effect to this ruling, I will strike out the words “ … enforcing, attempting to enforce or otherwise relying on …” in paragraph 15(c) of the endorsement on the Claim Form. I have considered whether to make other amendments to the injunction sought in paragraph 15(c). I have decided not to do so. First of all, the OFT did not put forward any alternative draft of an injunction. Further, if I had been asked to cut down the injunction sought so that it referred only to “typical consumers” or “typical circumstances”, I would not have regarded an injunction expressed in those terms as having the necessary clarity for the purposes of an injunction.[53]For the sake of completeness, I should state that I asked Mr Green whether he wished to rely in any way on the enforcement provisions in Part 8 of the 2002 Act and/or on the Injunctions Directive referred to in section 235 of the 2002 Act but he disclaimed reliance on those provisions. Accordingly, nothing in this judgment deals with those provisions.[54]Following the hearing, the OFT provided the court with the decision of Lord Drummond Young in Office of Fair Trading v MB Designs (Scotland) Ltd [2005] CSOH 85, [2005] SCLR 894. The learned judge granted interim relief in that case under Part 8 of the 2002 Act. There were many alleged infringements in that case but one infringement concerned the use of an unfair term, contrary to the Directive and the Regulations. The learned judge made an interim order which, amongst other things, restrained the Respondent from enforcing or otherwise seeking to rely on the unfair term which had been included in any existing agreements with customers. Whilst I read the judgment with interest, there is no trace of any argument being put forward of the kind put forward by Foxtons in this case as to the difference between a collective challenge and an individual challenge. Accordingly, the decision does not help one way or the other with the specific arguments in this case which I have to consider.[55]The OFT also showed me, after the hearing, a number of undertakings which had been given to it in relation to unfair terms where the undertakings extended to not enforcing terms in contracts previously entered into. Again, the assumptions made by the parties in those cases as to how the Directive and the Regulations operated do not assist me in this case where I have had the benefit of specific arguments which I have to assess.

The claim to declarations

[56]The declarations claimed by the OFT are set out in paragraphs 15(a) and (b) of the endorsement on the Claim Form: see paragraph 12 above.[57]Foxtons’ principal challenge to the first declaration is that it claims a declaration that the relevant terms are not binding on consumers pursuant to Regulation 8(1) of the Regulations. Foxtons say that this declaration involves the court holding that every individual contract ever entered into on these standard terms with a consumer is to be treated in the same way. Foxtons say that this is to confuse what is involved on a collective challenge with what is involved on an individual challenge.[58]This point raises the same issues of principle as were discussed in relation to the OFT’s claim to an injunction.[59]For the reasons which I have given in relation to the injunction claim, I accept Foxtons’ submission as to the defect in the declaration sought in paragraph 15(a) of the endorsement on the Claim Form. Before considering what order to make in that respect on this application I will refer to some wider submissions made by Foxtons.[60]Foxtons submit that the OFT has no locus standi to claim any declaration in these proceedings and that the court has no power to grant any declaration on the application of the OFT in these proceedings.[61]Before considering the authorities deployed on each side, I can indicate my reaction to this question as to locus and jurisdiction in relation to declaratory relief.[62]First, the OFT plainly has locus to seek an injunction. In the course of these proceedings and/or at the end of these proceedings, it could well prove helpful to the parties and to any third party, seeking to know what had been decided in these proceedings, for the court’s order to include declaratory relief. In my experience, the process of drafting a declaration is often useful for the purpose of showing precisely what the court has decided and what it has not decided and getting rid of the scope for contrary argument. The court could decide to grant such declaratory relief even where that relief has not been claimed in terms. Speaking generally, it frequently happens that a court decides a dispute in a way which is not identical to the case of either party; in those circumstances, the court may think it is helpful to declare the result it has reached even though neither side has sought a declaration in those terms, or even a similar declaration. Further, in a case where there is a preliminary issue which the court is required to determine, it would normally be appropriate to reflect that determination in an order of the court granting declaratory relief.[63]It must be recognised that there are limitations on the legal effect of a declaration in a case like the present. If the court were to declare that a particular term was not in plain, intelligible language, the only person who would have the benefit of that declaration would be the OFT. A consumer landlord who is later sued by Foxtons could not say that this issue of plain intelligible language was res judicata as between Foxtons and the consumer landlord. However, a county court judge would be bound, as a matter of precedent, by the judgment of the High Court to that effect and another High Court judge would be expected to find the judgment in this case of persuasive authority. In legal terms the making of the declaration would neither add to, nor detract from, the judgment given by the court. Nonetheless, in practice, a declaration would have advantages in relation to third parties.[64]If the above views represent the law, then in the present case I would not strike out paragraph 15(b) of the endorsement on the Claim Form. That declaration deals with an issue which will arise in these proceedings as to whether the relevant terms are expressed in plain, intelligible language. The judgment of the court is to be expected to deal with this issue and to reach a conclusion on it. The outcome of the issue turns on the language used. It does not depend, or at the lowest is most unlikely to depend, on the circumstances of individual cases (which will not be individually considered on this collective challenge). The court’s decision will be relevant in other cases even though individual cases will, or at any rate might, raise additional questions which require to be determined before the overall result of such a case is known. A declaration by the court is likely to prove of some utility to the parties and to others.[65]If the above views represent the law, then I would strike out paragraph 15(a) of the endorsement on the Claim Form. I have already indicated that the court would not declare that the relevant terms were not binding on all consumers who had ever made a contract, containing those terms, with Foxtons. As with the case of the injunction claimed, I was not asked to allow an amendment which cut down the declaration so that it referred to typical consumers or typical circumstances only. It might be said that the need for clarity in this respect is not so great with a declaration as with an injunction because the effect of the declaration would only arise in other proceedings where Foxtons submitted that the consumer or the circumstances were not typical and the later court would not be misled by the references to typical consumers or typical circumstances. However, this consideration shows that a declaration expressed in those terms would not be of much help to the later court which would in any case have the full judgment in these proceedings to guide it.[66]I now consider the principal authorities relied upon by each party.[67]CPR 40.20 states that the court may make binding declarations whether or not any other remedy is claimed.[68]Financial Services Authority v Rourke [2002] CP Rep 14 concerned a claim by the FSA to an injunction under section 93 of the Banking Act 1987. The court was asked to grant declarations as to Mr Rourke’s contraventions of section 3 of the Banking Act 1987. The court relied on CPR r.40.20 as the source of its jurisdiction. There did not appear to be any argument as to the court’s jurisdiction to grant the declarations sought. The court considered the matter as one involving questions which went to the discretion of the court. The court then considered those questions and held that the grant of declaratory relief would be just, would serve a useful purpose and there were no special reasons not to grant declaratory relief. This decision was referred to by the Court of Appeal, with approval, in Padden v Arbuthnot Pensions & Investments Ltd [2004] EWCA Civ 582 at [23] but, again, no question of jurisdiction arose.[69]In OFT v Abbey National plc and others [2008] EWHC 875 (Comm), Andrew Smith J considered many points arising in relation to a dispute about bank charges and the operation of the Directive and the Regulations. Following the handing down of judgment, all parties agreed that the court should grant declaratory relief to give effect to the judge’s conclusions. I was provided with a copy of the transcript of the hearing when the court considered the terms of the proposed declarations. The learned judge stated at that hearing that what mattered in that case was the judgment and the reasoning therein but he went on to grant declaratory relief not in the precise form submitted by the parties but in a form which he regarded as being more accurate as to his reasoning. Further, as the judge’s order makes clear, there were further issues in that litigation still to be heard.[70]Foxtons relied upon the decision of the House of Lords in Gouriet v Union of Post Office Workers [1978] AC 435. That case was really about locus standi. Mr Gouriet could not point to any private law right of his which was being infringed by the Defendant. He was seeking the court’s determination of the Defendant’s position under the criminal law. That was fatal to his claim to a declaration of rights: see, in particular, per Lord Diplock at page 501 B-G. Mr Gouriet had no locus to apply for either an injunction or a declaration: see, in particular, per Lord Fraser of Tullybelton at page 523 G-H. In the present case, the OFT has locus to bring these proceedings. It has locus to claim an injunction. Nothing in the Gouriet case would prevent the court granting the kind of declaratory relief which I have earlier described and with the consequences earlier described.[71]Foxtons also relied on Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc [1989] 2 Lloyd’s Rep 298. In that case, the Court of Appeal held that the Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. Foxtons relied on this decision so as to argue, by analogy, that the OFT could not claim a declaration that a term in a contract between Foxtons and a consumer landlord was void when the OFT was not a party to such a contract. However, I have already held that in these proceedings, in which the OFT brings a collective challenge to the relevant terms, the court will not decide what is the outcome in the case of every individual challenge to those terms and for that reason a declaration (and indeed an injunction) which purports to deal with every individual case is not appropriate. In any event, the law appears to have moved on since Meadows : see Feetum v Levy [2006] Ch 585 at [82] per Jonathan Parker LJ.[72]In these circumstances, the views I have earlier expressed appear to be supported by authority or, at the lowest, not contradicted by authority and I am free to give effect to those views.[73]In these circumstances, it may not be strictly necessary to deal with a further argument which Mr Green put forward to the effect that the court was expressly given jurisdiction in a claim brought by the OFT to grant declaratory relief. However, I will briefly describe the argument. Mr Green submitted that such jurisdiction was conferred by Article 7(2) of the Directive, as considered by the ECJ in Oceano . Article 7(2) refers to a “decision” by a court or an administrative authority as to whether a term is unfair. The Court in Oceano at [27], referring to Article 7(2), also used the word “decision”. Mr Green submits that effect must be given to the Directive and inadequate effect will be given to it unless the OFT is able to apply to the court for a declaration and the court is able to make such a declaration. In so far as I have held that OFT can seek some declaratory relief and the court can grant some declaratory relief, it may be that the OFT does not press its argument further than that. If and in so far as the OFT would wish to say that this argument justifies the court in granting the relief in paragraph 15(a) of the endorsement on the Claim Form, I would not accept it. This reference to “decision” in Article 7(2) does not entitle the court to disregard the requirements of the Directive (see Articles 3(1) and 4(1)) to have regard to the requirement of good faith and all the circumstances of the individual case. In any event, the decisions of the ECJ to which I have earlier referred make it clear that it is for the member state to decide on its own court procedures provided that the procedural rules do not infringe the principle of equivalence and the principle of effectiveness: see, in particular, Claro at [24]. I do not regard the rules of procedure, which apply in this case, as infringing those principles.

Further or other relief

[74]Foxtons object to the claim to “further or other relief” in paragraph 15(e) of the endorsement on the Claim Form. Mr Kent did not press this point. He was right not to do so. That part of the relief claimed is a harmless and conventional style of pleading which I will allow to remain in the endorsement.

The references to similar terms

[75]Regulation 12(4) refers to “a particular contract term” and “to any similar term, or a term having the like effect, …” . Paragraph 15(c) of the endorsement on the Claim Form uses the same wording when describing the terms which are the subject of the injunction claimed. Paragraph 15(b) of the endorsement only refers to the specific terms complained of. However, sub-paragraphs (a), (b) and (c) of paragraph 11 of the endorsement all refer to “previous equivalents”.[76]Foxtons’ application asks for the claim to be struck out in so far as it claims a remedy in respect of previous equivalent terms and/or superseded contractual terms.[77]In my judgment, in view of the fact that I have struck out paragraph 15(a) and part of 15(c) of the endorsement (so that the claim does not relate to individual cases) and in view of the further fact the OFT is entitled to seek an injunction in terms which follow the language of Regulation 12(4), I do not regard the reference to “previous equivalent terms” as impermissible and I will not strike out any other parts of the endorsement.

Further particulars

[78]Foxtons complain about what they called “the rolled-up plea” in paragraph 11 of the endorsement and ask for an order that the OFT provide further particulars of the claim. The particulars sought have not been specified. In particular, Foxtons have not sought to use CPR Part 18 for the purpose of obtaining further particulars or further information from the OFT.[79]I have already referred to the fact that the witness statement of Mr Allen, at paragraphs 53 to 70, sets out the nature of the OFT’s case in relation to the terms complained of.[80]In my judgment, if Foxtons wish to obtain further particulars or more information as to the case they have to meet, they can and should use CPR Part 18 for that purpose. It is not appropriate for the court to grant any relief at this stage at a time when Foxtons have not taken advantage of the procedures open to them under CPR Part 18.

Part 8 or Part 7 of CPR

[81]Foxtons complain that this claim is brought under CPR 8. They assert that it should have been brought under CPR 7 and they ask for directions accordingly.[82]This claim is a collective challenge. I have earlier described what is involved in a collective challenge and how it differs from an individual challenge. In my judgment, especially now that parts of the relief claimed have been struck out, this claim can properly be brought and continued under CPR 8.

The specific cases referred to by the OFT

[83]Foxtons have asked for the ruling of the court as to what is to be done in respect of the cases put forward by Mr Allen in his witness statement which were said to illustrate the problems with the terms which are complained of.[84]I note that in the First National Bank case, there was evidence of complaints and these appear to have been used to illustrate the types of problem that could arise: see [2002] 1 AC 481 at [18].[85]I do not see any real difficulty in taking the complaints referred to by Mr Allen for what they are stated to be i.e. illustrations only. For that purpose, it is neither necessary nor, I think, desirable to explore the detail of those individual cases. It is certainly not appropriate for the court to be asked to rule on the final disposal of those individual cases. In addition to the use of these complaints as illustrations, I imagine that the parties will refer to a range of possible circumstances in which the relevant terms might be expected to apply so as to consider how the terms would operate in practice.

Disclosure of documents

[86]When referring to complaints which have been made, for the purpose of illustrating problems with the relevant terms, Mr Allen referred to a number of documents provided to the OFT by complainants. Mr Allen explained that the complainant had not consented to the OFT disclosing his or her identity for the purposes of these proceedings. Mr Allen has accordingly redacted documents exhibited to his witness statement. In some cases, it is possible that the complainant would still not want to be identified and would continue to decline to disclose his identity. In other cases, the OFT may have difficulty today in tracing a complainant.[87]Foxtons ask for directions as to the redacted documents. The OFT is prepared to disclose unredacted documents. However, it submits that it can only do so if the court orders it to do so under section 241A of the 2002 Act, as added by the Companies Act 2006.[88]I see no reason why I should order the OFT to disclose documents and in particular the unredacted documents where redacted versions have already been disclosed. The complaints in question are illustrations of alleged problems with the relevant terms. The individual cases need not be explored. In those circumstances, I am not prepared to make an order which will or might override the wishes of the complainants.

Other directions

[89]It will be necessary to give directions as to the service of any evidence by Foxtons and any evidence in reply by the OFT. I see this case as one where the court should require Foxtons to serve its evidence promptly with a view to this case being progressed without any further unnecessary delay. If the parties are unable to agree on a timetable for evidence and any other matters arising, I will set a timetable following the delivery of this judgment.

Cited in 2 later judgments