Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 3. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 5.

"Material information" under regulation 6 of the Consumer Protection from Unfair Trading Regulations 2008 (the "Regulations") is a contextual question that depends on the facts and circumstances of the commercial practice as a whole. Whether the information that the services offered were available free of charge was "material information" is to be considered further and an appeal in this regard was successful.

The defendant offered a service to customers to protect them from cold-calls and junk mail whereby the customers would pay £4 per month or £39.99 per year for (1) registration with the Telephone Preference Service ("TPS") and Mail Preference Service ("MPS"); and (2) the defendant's own complaints service.

The TPS and MPS are, however, public, free of charge services that customers can register with themselves.

The plaintiff applied for the appointment of a provisional liquidator to wind up the defendant on the grounds that it should not sell TPS and MPS services that were available for free. The defendant successfully opposed the order by undertaking to disclose the information that the service is available for free. The defendant subsequently applied to vary the undertaking by proposing a new marketing script that did not inform customers that the TPS and MPS services were available for free.

Following its unsuccessful interim application, the defendant appealed.

Was the information that the services the defendant offered available to the customers free of charge "material information" under regulation 6 of the Regulations and that by not disclosing it, was the defendant in breach of the Regulations?

The critical question, particularly in the context of information about alternative produces, is whether the average consumer can be said to need to obtain that information from the trader in question, rather than obtain it for example by shopping around, and finding out for himself whether something better, or cheaper is on offer.

A critical question in the present case is whether the average consumer may be supposed to be able to find out that the relevant part of the defendant's service can be obtained direct from the TPS and MPS, and at no charge.

The court did not make a final decision stating that it should not be determined as the preliminary issue. Whether it was "material information" is a contextual question that depends on all the features and circumstances of the commercial practice, viewed as a whole, and the necessary contextual facts need to be established.

URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/76.html

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The court allowed the appeal to the extent setting aside the determination of the preliminary issue for the issue to be determined at the final hearing.