The Patchetts chose their new pool installer from a swimming pool trade association’s list of “vetted” pool installers. So when the installer fouled up, then folded, could they turn to the trade body for compensation? Elena Baranova reports on a battle that went to the Court of Appeal.
Topic: Consumer protection
Who: Court of Appeal
When: 26 August 2009
Where: United Kingdom
Law stated as at: 23 July 2009
The Court of Appeal ruled that, although a trade association, the Swimming Pool and Allied Trades Association (SPATA) made representations on its website and knew website users would be likely to rely on its representations, SPATA did not owe a duty of care to users of the website. According to the court's ruling a warning on the SPATA website mitigated its liability for misstatements.
Mr and Mrs Patchett wanted a swimming pool for their garden, they found the SPATA website via the Google search engine. The site provided services to members of the public looking for contractors to carry out swimming pool installations.
A page of SPATA’s website headed "Who and what is SPATA?" said:
"Pool installer members are fully vetted before being admitted to membership, with checks on their financial record, their experience in the trade and inspections of their work."
"Only SPATA registered pool and spa installers belong to SPATASHIELD, SPATA's unique Bond and Warranty Scheme offering customers peace of mind that their installation will be completed fully to SPATA Standards – come what may!"
"SPATA supplies an information pack and members lists which give details of suitability qualified and approved installers in the customer’s areas. The pack includes a Contract Check List which sets out the questions that the customer should ask a would-be tenderer together with those that must be asked of the appointed installer before work starts and prior to releasing the final payment."
Mr and Mrs Patchett hired Crown Pools Limited (“Crown”), which the SPATA site listed as a member. However, Crown became insolvent before the work was completed and alternative contractors had to be found to finish the job. As a consequence Mr and Mrs Patchett lost £44,000.
The Patchetts sued SPATA claiming that SPATA had made negligent misstatements on which they relied. The SPATA site failed to disclose that Crown was only an affiliate member and was not covered by the SPATASHIELD bond and warranty scheme. Only full members underwent the checks and vetting that the site referred to and benefited from SPATA guarantee.
The judge dismissed the claim at first instance and Mr and Mrs Patchett appealed to the Court of Appeal on the ground that the judge had erred in applying the law. As foreseeability was not an issue, the issues in determining whether SPATA owed the Patchetts a duty of care, were whether there was sufficient proximity between the parties and whether it would be fair, just and reasonable to impose a duty of care on SPATA.
The Court of Appeal held that SPATA did potentially owe a duty of care to Mr and Mrs Patchett as the website was directed only to those members of the public that were planning to have swimming pools installed rather than the general public at large
However, SPATA was not liable in this case because the webpage describing the vetting of members also explained that SPATA supplies an information pack and members list on request. If Mr and Mrs Patchett had made a request for the information pack and members list, they would have seen that their contractor was not a full member of SPATA.
Lord Clarke stated that “when the website is read as a whole, it urges independent enquiry” before people made a buying decision. "In these circumstances there was not a sufficient relationship of proximity between SPATA and the claimants for these purposes and it would not be fair just and reasonable to hold that SPATA owed them a duty to take care," he ruled.
Why this matters:
This case also underlines that exemption clauses should be located on the same page as any advice given on a website. A reference or a link to the exemption clause should be clearly visible on the same webpage containing an advice or article. Such design of a website would increase the chances of any exemption clause at least being effectively brought to the attention of the relevant reader.
Osborne Clarke, London