Tuesday, 30 August 2011
Chinese copy?
Readers who were at this year's Motor Law conference in February will remember David Musker's entertaining review of copying problems in the motor industry. We have left all those boring arguments about copyright in spare parts far behind - nowadays, it's copying entire vehicles. This story in Just Auto about the interestingly-named Brilliance-Jinbei S50, which bears a close resemblance to the Kia Sorento (and where did that name come from, and did it lose an "r" on the way?), might be the latest manifestation of this tendancy. Worth bringing to your attention, anyway.
Sunday, 7 August 2011
False claim about validity of warranty
It remains a common misconception that a car must be serviced by an authorised workshop if the warranty is to remain valid. Another popular misconception is that the block exemption changed this situation a few years ago. In fact the Office of Fair Trading put a stop to it in this country years ago, and the new block exemption reveals the Commission's resolution to do something about it. But whether because of a misconception or otherwise, advertising on the basis that using an authorised workshop is mandatory in this sense can land you in trouble.
Dumfries and Galloway Trading Standards have recently publicised an instance - let's not call it a case, because there's nothing in the press release to say that proceedings were issued - of a garage doing precisely that. In fact, according to the Dumfries & Galloway Standard, it seems that the Council simply required the garage to write to customers to undo the mischief, which seems fair enough. They don't know whether this is a widespread problem, and thought it worth highlighting it - so it's not really a matter of penalising the one garage.
In days gone by, this would have raised false trade description problems. Now the Trade Descriptions Act 1968 is no more, the Consumer Protection from Unfair Trading Regulations 2008 occupies the field. Misleading advertising like that is likely to constitute an offence under the Regulations - as it would have done under the old Act. Provided, of course, that the necessary mens rea can be shown, which - given the degree of ignorance of the law on warranties - might be very tricky.
Dumfries and Galloway Trading Standards have recently publicised an instance - let's not call it a case, because there's nothing in the press release to say that proceedings were issued - of a garage doing precisely that. In fact, according to the Dumfries & Galloway Standard, it seems that the Council simply required the garage to write to customers to undo the mischief, which seems fair enough. They don't know whether this is a widespread problem, and thought it worth highlighting it - so it's not really a matter of penalising the one garage.
In days gone by, this would have raised false trade description problems. Now the Trade Descriptions Act 1968 is no more, the Consumer Protection from Unfair Trading Regulations 2008 occupies the field. Misleading advertising like that is likely to constitute an offence under the Regulations - as it would have done under the old Act. Provided, of course, that the necessary mens rea can be shown, which - given the degree of ignorance of the law on warranties - might be very tricky.
Thursday, 4 August 2011
CV manufacturer not dominant in repair market
I have posted a commentary on a recent German case in which it was decided that MAN was not dominant in the market for repair of its vehicles, so it was not an abuse of a dominant position when it refused to allow a Daimler dealer and authorised repairer to join its network. Read the posting on The Blog Exemption by following this link.
Monday, 25 July 2011
Liability for injury caused by broken-down truck
A recent case in the New South Wales Court of Appeal, Wagga Truck Towing Pty Limited v O'Toole; IAG Limited t/as NRMA Insurance v O'Toole [2011] NSWCA 191, deals with liability for Mr O'Toole's injuries sustained when a truck rolled onto him. Although - of course - it doesn't have direct application to what happens in the UK, it's a cautionary tale for operators of commercial vehicles (indeed, probably all vehicles) and for towing companies.
Mr O'Toole was a passenger in the truck, an Isuzu, owned by a Mr Russell, his employer, which was carrying a V8 Holden race car when it broke down. Mr Russell parked it up, put it in second gear and engaged the handbrake, then phoned the recovery company. Over the phone, Mr Cool, the recovery driver, suggested, given that he had tools to hand, and an assistant, he get the tail shaft (which I think is what I would call the propshaft - am I out of date?) off to save time once the recovery vehicle arrived. So Mr O'Toole, having asked Mr Russell if the vehicle were safe and having been assured that the handbrake was on, got under the truck and did just that. However, the handbrake did not operate on the wheels, it operated on some part of the transmission (the court heard no evidence about this so there was a lot of inferring involved, including that this particular truck was probably not unique in this respect), so removing the tail shaft freed it to roll down the incline on which it was parked, over Mr O'Toole, causing him serious injury. In fact the truck then proceeded to cross the carriageway and come to rest against a bank on the other side.
The trial judge decided that Mr Russell, who, for the purposes of the Motor Accidents Compensation Act 1999 was the driver and the person in charge of the vehicle, bore 70 per cent of the responsibility for the accident. The towing company which had given him negligent advice took the balance. The fact that Mr Russell had acted on that negligent advice and without it the accident would not have happened did not absolve him from responsibility - indeed, did not even reduce the burden much, although the Court of Appeal (which largely upheld the judge) split the liability 50:50. Mr Russell, though he raced the Holden, was no expert in mechanical matters - but the court thought a reasonable person would have understood that disconnecting the tail shaft would remove the benefit of having engaged the gears, even if they didn't realise that it would also make the handbrake ineffective. The reasonable person would have chocked the wheels before starting to unscrew bots from underneath the vehicle.
Incidentally, although the 1999 Act imposes "no fault" or strict liability in certain circumstances, this is not one of them - the case turned on whether there was negligence.
Mr O'Toole was a passenger in the truck, an Isuzu, owned by a Mr Russell, his employer, which was carrying a V8 Holden race car when it broke down. Mr Russell parked it up, put it in second gear and engaged the handbrake, then phoned the recovery company. Over the phone, Mr Cool, the recovery driver, suggested, given that he had tools to hand, and an assistant, he get the tail shaft (which I think is what I would call the propshaft - am I out of date?) off to save time once the recovery vehicle arrived. So Mr O'Toole, having asked Mr Russell if the vehicle were safe and having been assured that the handbrake was on, got under the truck and did just that. However, the handbrake did not operate on the wheels, it operated on some part of the transmission (the court heard no evidence about this so there was a lot of inferring involved, including that this particular truck was probably not unique in this respect), so removing the tail shaft freed it to roll down the incline on which it was parked, over Mr O'Toole, causing him serious injury. In fact the truck then proceeded to cross the carriageway and come to rest against a bank on the other side.
The trial judge decided that Mr Russell, who, for the purposes of the Motor Accidents Compensation Act 1999 was the driver and the person in charge of the vehicle, bore 70 per cent of the responsibility for the accident. The towing company which had given him negligent advice took the balance. The fact that Mr Russell had acted on that negligent advice and without it the accident would not have happened did not absolve him from responsibility - indeed, did not even reduce the burden much, although the Court of Appeal (which largely upheld the judge) split the liability 50:50. Mr Russell, though he raced the Holden, was no expert in mechanical matters - but the court thought a reasonable person would have understood that disconnecting the tail shaft would remove the benefit of having engaged the gears, even if they didn't realise that it would also make the handbrake ineffective. The reasonable person would have chocked the wheels before starting to unscrew bots from underneath the vehicle.
Incidentally, although the 1999 Act imposes "no fault" or strict liability in certain circumstances, this is not one of them - the case turned on whether there was negligence.
Cookie regulations
New regulations on the use of cookies (small computer files set by websites to record information about visitors) came into operation in May, and we were all told that they weren't as draconian as was feared. In particular, the government had concluded that there was no need to get prior consent to setting a cookie: consent obtained at any time would suffice. That was certainly a useful way of interpreting the legislation, removing much of the compliance burden from businesses.
It does, however, seem to fly in the face of logic. If I were to tell my children not to do something without permission, I would not expect them to do it and then later seek ratification. Consent by (usual) definition must be in place before the act consented to is performed - otherwise, logically, the act is performed without consent and nothing that happens thereafter will change that. But logic and interpreting EU directives have little in common.
The government's convenient approach to the matter is now in trouble. The excitingly-named Article 29 Working Party (comprising the data protection commissioners of the EU Member States, convened under the eponymous Article of the Data Protection Directive) has produced an opinion, floating a proposed definition of "consent" - a 38-page document, dealing with something that might usefully have been included in the data protection Directive in 1995 (from which the cookies directive adopts the idea of consent) - and they favour the logical approach. The opinion is only a suggestion to the Commission, though, and will not give rise to enforcement proceedings. Indeed, the Commission went so far recently as to announce that only five Member States had properly implemented the cookies Directive - the UK among them. maybe it will have to reassess that now.
Meanwhile, to comply strictly with the law, the right course is to follow the directive, not the UK guidelines. If the Commission thinks that the concept of "consent" implies "prior", as the Working Party says it should, that is the sensible way to look at it. Logical, too.
(See the story on Out-Law.)
It does, however, seem to fly in the face of logic. If I were to tell my children not to do something without permission, I would not expect them to do it and then later seek ratification. Consent by (usual) definition must be in place before the act consented to is performed - otherwise, logically, the act is performed without consent and nothing that happens thereafter will change that. But logic and interpreting EU directives have little in common.
The government's convenient approach to the matter is now in trouble. The excitingly-named Article 29 Working Party (comprising the data protection commissioners of the EU Member States, convened under the eponymous Article of the Data Protection Directive) has produced an opinion, floating a proposed definition of "consent" - a 38-page document, dealing with something that might usefully have been included in the data protection Directive in 1995 (from which the cookies directive adopts the idea of consent) - and they favour the logical approach. The opinion is only a suggestion to the Commission, though, and will not give rise to enforcement proceedings. Indeed, the Commission went so far recently as to announce that only five Member States had properly implemented the cookies Directive - the UK among them. maybe it will have to reassess that now.
Meanwhile, to comply strictly with the law, the right course is to follow the directive, not the UK guidelines. If the Commission thinks that the concept of "consent" implies "prior", as the Working Party says it should, that is the sensible way to look at it. Logical, too.
(See the story on Out-Law.)
Selling franchised dealerships
In addition to motor industry legal news here, I maintain a blog on the Block Exemption - not as frequently as I would like, but today I have posted a piece about the rules on transferring franchised dealerships and posting it on this blog as well seems unnecessary when a link will do just as well. I'll continue to use The Blog Exemption for block exemption news and comments.
Friday, 22 July 2011
Code of Conduct latest
The latest edition of Motor Law reports on developments on the much-vaunted Code of Conduct, intended to supplement the block exemption and re-establish a degree of dealer protection. The last word when the newsletter went to print was that the Commission had pressed ACEA to reach agreement with CECRA, with the threat that the Commission would impose something if the parties were unable to agree by November. Although ACEA, which has proposed a limited Code of Conduct, finds itself portrayed as the "baddie" (the inverted commas are to indicate that what's right and what's wrong in this situation depends almost entirely on where you are standing) it is important to remember that CECRA's original stance was to oppose a code and stick out instead for protective measures in the new block exemption - which of course were not forthcoming.
We now understand that ACEA has announced that it will not participate in further discussions about the content of a Code, which might well mean that the manufacturers will unilaterally promulgate their own Code without the additional protection sought by CECRA. Or maybe it's just another move in the perpetual game of horsetrading that goes on in Brussels ...
We also hear that the Q&A document on the new block exemption, promised by the Commission for July, will now not appear before September. Given the imminence of the summer holidays, that is no great surprise - perhaps any promise by the Commission that involves the delivery of something in July should instantly be discounted.
We now understand that ACEA has announced that it will not participate in further discussions about the content of a Code, which might well mean that the manufacturers will unilaterally promulgate their own Code without the additional protection sought by CECRA. Or maybe it's just another move in the perpetual game of horsetrading that goes on in Brussels ...
We also hear that the Q&A document on the new block exemption, promised by the Commission for July, will now not appear before September. Given the imminence of the summer holidays, that is no great surprise - perhaps any promise by the Commission that involves the delivery of something in July should instantly be discounted.
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