Business, Innovation and SkillsWritten evidence submitted by Singletons Solicitors

1. I am a commercial solicitor with a well known IT/computer law firm. I only have time to comment on one section of the Bill.

2. s49 precludes suppliers to consumers from excluding or limiting liability. Whilst most suppliers would accept the rights to repairs/replacements under the legislation should not be limited, it is a very different matter to say other exclusions and limitations are not allowed. The consumer who says because the CD or goods did not arrive and therefore they failed an exam or did not get to go on holiday or whatever often makes very big claims for consequential and indirect loss, loss of profits, wasted time at huge hourly rates and the like. Not surprisingly every set of terms with consumers therefore excludes and limits liability lawfully to the consumer in a way which is fair under the current 1999 regulations. This works well in practice.

3. A typical clause would say the consumer may not recover indirect sand consequential loss, loss of profit and the like and that overall liability (except for death, injury and fraud which is unlimited by law) is limited to the price paid.

4. I would therefore hope that s49 could be amended by adding that “although the seller may cap liability at the price paid for the goods and/or exclude liability for consequential and indirect losses.”

5. I have not had time to look at other provisions except I note that if no price is agreed eg someone calling in a gardener and the full extent of the work is not clear or a lawyer in such a case the price will be reasonable. This is going to be extremely difficult to ascertain in practice and similarly what is a reasonable time for performing services.

6. I think it is a shame that business to business sale of goods law will remain as in the 1979 Act as plenty of sellers over the internet sell to both consumers and businesses and it would be easier if terms were similar and both areas were modernised. However I accept that is not part of the proposals.

7. Finally on digital downloads Clause 36(3)(b) freedom from minor defects does not really work with software. It is a product which is inherently full of defects, errors and bugs and every software licence ever written says it is not bug free and will have errors. I expect the computer industry will rightfully not be happy with this requirement and we should add “save that in relation to consumer software it may include without a breach of this implied terms errors, faults and bugs common to all software of that type”.

4 July 2013

Prepared 20th December 2013