What looked like a harmless phrase to an Ipswich retailer ended up in two court hearings and big legal bills for the prosecutors. What could possibly be the problem?
Who: Hillary Blinds and Suffolk County Council
When: January 2002
Where: High Court of Justice – London
Hillary Blinds of Ipswich promoted a "summer blind" sale in an insert in the Ipswich Advertiser. The headline read "Summer blind sale, vertical blinds, 2 for 1 special price, £125 in our special Clouds fabric" and "save up to 50%".
Suffolk County Council brought a prosecution under the "misleading price indications" provisions of the 1987 Consumer Protection Act. The particular section of the act which was cited was section 21(1)(e). This dealt with price comparisons. In this case, the prosecution said the implied comparison was between the sale price of £125 for 2 of the relevant blinds, as compared with the implied pre-sale price of £125 for only one of them. This interpretation of the claim was supported by the "save up to 50%" caption which appeared twice in the leaflet in question. However, since the reality of the position was that you couldn't get two of the blinds in question for £125, the comparison, Suffolk trading standards said, was misleading, and an offence.
Hillary Blinds said that Suffolk County Council had got it all wrong. The "ordinary shopper" they submitted, would understand the leaflet to be saying simply that as a special offer during the sale, up to two blinds could be purchased in the "special Clouds fabric" regardless of their size, for one special price, namely £125. As for the "save up to 50%" claim, this was a quite separate offer Hillary Blinds argued, which was explained in the leaflet by way of an asterisk against the "save up to 50%" claim and linked wording which stated that the 50% saving would be off specially selected ranges. As a result of all this there was no comparison involved here at all, said Hillary Blinds, and therefore no offence committed.
At first instance, the Magistrates regarded the leaflet as indicating that for "particular blinds two could be bought for one special price". Applying the criminal standard of proof which they had to apply here, however, they were not persuaded "beyond a reasonable doubt" that the advertisement contained a direct or implied price comparison. Accordingly the prosecution failed.
On appeal, the use of the word "special" was key to both sides' arguments. Suffolk County Council said the use of the term "special price", particularly in this context, pre-supposed that there was some other "non-special price" against which it was being compared. Hillary Blinds on the other hand said that the specialness about the price quoted was that it was a common price, to be charged irrespective of the particular size of blind that was chosen.
The question for the Appeal Court was whether the verdict of the Magistrates at first instance was one which was open to them on the facts. It was not for the appeal judge, they said, to substitute his own view as to the meaning of the advertisement for that of the Magistrates. The Magistrates were in the best position to form a view as to what ordinary members of the public should feel and how they would understand the ad. The Magistrates also had to be conscious that they had to be satisfied beyond a reasonable doubt that the prosecution's case was proved. In conclusion, the Appeal Court's verdict was that the Magistrates' conclusion was one which was quite open to them to reach in the circumstances of the case. Suffolk County Council's appeal was therefore turned down and Hillary Blinds were victorious, with an order that Trading Standards pay Hillary Blind's defence costs assessed at £4,500.
Why this matters:
It may be that on another day the prosecution might have argued that even on Hillary Blinds' construction of the "2 for 1 special price" claim, there was still an implicit comparison. This was between the price you would have ordinarily have had to pay for a very large blind using the "Clouds" fabric and the £125 price offered during the sale. If this had been argued and accepted by the court, the case would then have had to move on to the second question of whether that comparison was actually misleading. As it was, however, this second question did not even have to be addressed by the court as there was no price comparison found.
In some senses, the verdict is a victory for free commercial speech. It says that the term "special" can legally be used in relation to a price without necessarily implying that the price indicated is lower than a previous price for which the product in question has been sold. On the other hand, the message for retailers has to be that "special" care has to be used whenever the term "special" is used in relation to a price and extra special care taken with the phrase "two for one".