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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 3

XA27/23

Lord Justice Clerk

Lord Malcolm

Lord Pentland

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Appeal

ALAN KING

Pursuer and Appellant

against

(1) BLACK HORSE LIMITED

Defender and First Respondent

(2) PARK'S AYR LIMITED

Third Party and Second Respondent

and

THE COMPETITION and MARKETS AUTHORITY

Interveners

________________

Pursuer and Appellant: Mitchell KC, Haddow; TC Young LLP

Defender and First Respondent: Thomson KC, Adam; TLT LLP

Third Party and Second Respondent: MacColl KC, Tosh; DWF LLP

Interveners: Middleton; Office of the Advocate General

31 January 2024

Introduction

[1]

This is an appeal arising from an action in the Sheriff Court for declarator and

payment concerning a contract for hire purchase of a jaguar vehicle. The first respondents

are the company who supplied the car and provided the finance therefor, all under a

contract of hire purchase. The second respondents and third parties are the dealership

through which the contract was brokered. In the appeal the Competition and Markets

Authority has been given permission to intervene.

Background

[2]

The appellant maintains that the vehicle was defective for reasons connected with

non-performance of the diesel particulate filter. He intimated his rejection of the vehicle.

[3]

In the initial writ he sought (1) declarator inter alia that the vehicle was not of

satisfactory quality at the date supplied or any point thereafter; and that he validly rejected

it; as well as decree for payment for two separate sums, namely (2) £34,769.40; and (3) £1000.

Neither the craves nor the pleas-in-law make any reference to the Consumer Rights Act

2015. By process of deduction and inference, however, it may be deduced from the

pleadings as a whole that the appellant maintains that the car was rejected under the 2015

Act; that the first sum sought is meant to represent a figure for repetition and refund of

sums paid by the appellant under the hire purchase agreement, all in terms of that Act; and

the second sum is meant to represent a further sum for common law damages.

[4]

To say that the pleadings are a mess is to make a statement of extreme generosity to

the drafters thereof, in respect of all parties. Somehow they have managed to extend

pleadings for this simple scenario to a record of about 80pp. It is abundantly clear that no-

one has taken the time to analyse the circumstances of the case in terms which clearly

specify the alleged legal consequences said to arise out of the facts, the legal duties which

follow, or to specify clearly the remedies sought and their basis. The Sheriff's restrained

observations as to the pleadings are stated thus:

"To say that I found the format and content of the Record confusing may be to

understate the position. `Bloated' may be a fair description of the pleadings. It

contained many typographical errors."

[5]

After the date on which the appellant intimated rejection of the car he continued to

make the payments due under the contract and to tax and use the vehicle. This led to a

successful motion for summary decree of absolvitor, granted by the Sheriff and affirmed by

the Sheriff Appeal Court. For the detailed reasons which follow, we consider that the appeal

must succeed.

Decisions of the Sheriff and Sheriff Appeal Court

[6]

The essence of these decisions rests on the proposition that at common law there was

an absolute bar on the continued use of goods after rejection by the buyer. This had its

origins in the decision of Ransan v Mitchell (1845) 7 D 813, and remained unaffected by the

terms of the 2015 Act.

The Appeal

[7]

The primary issue raised in the appeal is thus whether the Ransan bar subsists,

meaning that a consumer is automatically barred from insisting on the right to reject goods

under the Consumer Rights Act 2015 where they have continued to use the goods after

communicating that rejection to the supplier. A further issue arises as to whether this

should have resulted in summary decree of dismissal standing that the appellant maintains

a case of common law damages for breach of contract.

[8]

The parties have entered into a Joint Minute asking the court to proceed on the

hypothesis that the appellant communicated a valid rejection of the vehicle, without

prejudice to the parties' ability to insist in a contrary position in the event of matters

ultimately being remitted to the Sheriff Court. The Joint Minute also agrees the nature and

extent of the pursuer's post rejection use of the vehicle, additional mileage recorded and so

on.

Sale of the vehicle

[9]

The Joint Minute specifies a further factor which shows that the factual position has

otherwise altered significantly from that upon which the Sheriff and Sheriff Appeal Court

proceeded. This is that on 31 March 2023 the appellant made a payment of £17,579.98 to the

respondents corresponding to the sum required to repay all sums outstanding under the

hire purchase agreement; and that on the same date he sold the vehicle to an unrelated

person for £20,233.

[10]

Although junior and senior counsel for the appellant initially maintained that the

sale of the vehicle made no difference to the arguments, and that this court should reach a

determination on the legal effect of the disposal of the vehicle, senior counsel was eventually

driven to accept that this was not a realistic proposal. The pleadings in the case are now of

largely historic interest. The appellant has not sought to amend and the court cannot know,

and should not speculate as to, the manner in which he might seek to reformulate the claim,

were he to seek, and be given, permission to do so. On the face of it there is such a major

difference between post rejection use and sale to a third party as might take matters outwith

the scope of the Act but it would not be appropriate for the court to consider that issue

when it was not the subject of written pleadings. Senior counsel for the appellant ultimately

recognised that on the pleadings as they stand this court could not address the effect of sale

of the vehicle.

[11]

We recognise that the effect of the sale means that the appellant's case can no longer

be advanced on the basis of the pleadings, and the remedies sought may no longer be

relevant. However, given the general importance to consumers of the issue raised, and the

unsatisfactory state in which the decision of the Sheriff Appeal Court would have left the

law, we considered that it was in the public interest for us to address the matter. Should any

application to amend be forthcoming, it will be entirely a matter for the Sheriff to consider

that issue, on the basis of what is proposed at the time, and assessing whether the sale of the

vehicle takes matters outwith what is envisaged by the statutory scheme

Statutory Provisions

Directive 1999/44/EC

[12]

The Directive of the European Parliament and of the Council of 25 May 1999 on

certain aspects of the sale of consumer goods and associated guarantees had as its specified

purpose: the achievement of a high level of consumer protection (recital 1); the minimum

harmonisation of rules governing the sale of consumer goods, which were somewhat

disparate across Member States (recitals 3-4); and the creation of a common set of minimum

rules to strengthen consumer confidence (recital 5).

[13]

Recital 6 recognised that the main difficulties consumers encountered and the main

source of disputes related to the non-conformity of goods with the contract. Remedies that

the Directive provided national law should make available were: repair or replacement,

where possible and proportionate; price reduction; or rescission of the contract, where repair

or replacement was not available (recitals 10 and 11; article 3). There could be deduction for

use since delivery and the detailed arrangements for rescission of the contract were to be

laid down by national law (recital 15). These rights were not to be restricted or waived by

the common consent of the parties (recital 22). On the contrary, more stringent provisions,

which ensured a higher level of consumer protection, were allowed (recital 24).

Consumer Rights Act 2015

[14]

The protections enshrined in the 2015 Act were based, in part, on the terms of the

Directive and the provisions of Part 5A of the Sale of Goods Act 1979 which had previously

been inserted pursuant to the Directive, by regulations in 2002, to provide additional rights

for buyers in consumer cases.

[15]

Chapter 2 of the 2015 Act applies to contracts for the trader to supply goods (section

1(3)(a)), including hire-purchase agreements (section 3 (2)(c)). Where the goods do not

conform to the contract section 19 provides for the consumer's right to enforce terms about

the goods, which are three-fold:

"(a) the short-term right to reject (sections 20 and 22);

(b) the right to repair or replacement (section 23); and

[16]

The consumer is not precluded from seeking other remedies for breach of contract,

including (a) claiming damages; (b) seeking an order for specific implement; (c) relying on

the breach against a claim by the trader for the price; and (d) exercising a right to treat the

contract as at an end (subsections (9)-(11)). In terms of subsection (13), "treating a contract as

at an end means treating it as repudiated".

[17]

The right to reject generally, set out in in section 20 of the Act, whether a short-term

right to reject, subject to section 22, or a final right to reject, subject to section 24, entitles the

consumer to reject the goods and treat the contract as at an end (subsection (4)), which

means treating it as repudiated (section 19(13)). Relevant parts of section 20 include that:

"(7)

From the time when the right is exercised--

(a) the trader has a duty to give the consumer a refund, subject to subsection

(18), and

(b) the consumer has a duty to make the goods available for collection by the

trader or (if there is an agreement for the consumer to return rejected goods)

to return them as agreed.

...

(9)

The consumer's entitlement to receive a refund works as follows.

(10)

To the extent that the consumer paid money under the contract, the consumer

is entitled to receive back the same amount of money.

...

(14)

If the contract is a hire-purchase agreement or a conditional sales contract and

the contract is treated as at an end before the whole of the price has been paid, the

entitlement to a refund extends only to the part of the price paid.

(15)

A refund under this section must be given without undue delay, and in any

event within 14 days beginning with the day on which the trader agrees that the

consumer is entitled to a refund."

[18]

The conditions attached to exercising the short-term right to reject are prescribed by

section 22. We say no more about this provision given the present case is concerned with

the final right to reject.

[19]

In respect of the final right to reject and the right to a price reduction a consumer

may only exercise either of, but not both of, these rights. Section 24 provides:

"(8)

If the consumer exercises the final right to reject, any refund to the consumer

may be reduced by a deduction for use, to take account of the use the consumer has

had of the goods in the period since they were delivered, but this is subject to

subsections (9) and (10).

(9)

No deduction may be made to take account of use in any period when the

consumer had the goods only because the trader failed to collect them at an agreed

time.

(10)

No deduction may be made if the final right to reject is exercised in the first 6

months (see subsection (11)), unless-- (a) the goods consist of a motor vehicle, or (b)

the goods are of a description specified by order made by the Secretary of State by

statutory instrument."

Submissions for the appellant

[20]

The 2015 Act created a comprehensive, simple and UK-wide scheme of consumer

rights and remedies, including a new and substantially reformed right to reject, which

replaced the previous law on contracts for the sale and supply of goods as far as it concerned

consumer contracts. The right to reject under the 2015 Act was significantly different to that

which had been available under the 1893 and 1979 Acts. The Sheriff Appeal Court erred, in

construing the 2015 Act, by leaving out of account the legal and economic context of that

legislation and the practical effect of the competing interpretations argued for by the parties.

[21]

The SAC erred in failing to consider the Act's purpose and scope. It could be

presumed that the Act was intended to mitigate the imbalance of power and resources as

between traders and consumers, and to strengthen the position of consumers. The court

could infer from the legislative history of the 2015 Act, including that it was passed in order

to implement the EU Consumer Rights Directive ( by then Directive 2011/83/EU), that

Parliament intended to create a comprehensive, comprehensible and straightforward set of

remedies, focused on the rights of consumers. It was unlikely that Parliament would have

intended that consumers would require sufficient knowledge of the common law in order to

be fully aware of the extent of their rights under the statute.

[22]

The appellants in their note of argument pointed to the absurdity of the argument

that the Ransan bar remained good law:

"... insistence that the common-law Ransan bar survived the reforms enacted by the

2015 Act piles absurdity upon absurdity. As the CMA points out (at [8] of its Written

Submissions), Paragraph 16(2) of Schedule 1 to the 2015 Act, by inserting a new

section 15B(1A) into the 1979 Act, specifically disapplied the right to reject under

section 15B of that Act in favour of the short term right to reject and the long term

right to reject under the 2015 Act. Consequently, for the Ransan bar to have survived,

it would be necessary to take Parliament as having chosen to abolish the pre-existing

statutory provisions as to right to reject, but to leave standing a common law

provision which pre-dated the legislative reform in 1893 and subsequent reforms.

This is not consistent with the evident policy of the 2015 Act in providing a clear and

easily accessible code (as discussed above) and undermines the rights accorded to

consumers by the 2015 Act and, in respect of the final right to reject, the rights and

remedies accorded to consumers under the Directive."

Submissions for the respondent

[23]

The Directive by recitals 6 and 15 allows for controls to be imposed on the right to

reject in national law. The statute has given effect to the requirement that a right to reject be

provided as a minimum standard. But it is not required to be inviolate. The statute did not

oust the common law. The right of rejection in the statute must be understood to mean

rejection according to known legal principles as espoused in Electric Construction Co Ltd v

Hurry & Young (1897) 24R 312. Rejection brought the contract to an end, with the result that

post-rejection use of goods was entirely prohibited. Actions which are inconsistent with

rejection, such as continued use of the goods, result in the right of rejection being lost. In the

absence of terms in the 2015 Act indicating a clear and precise intention to change the

common law, that principle continued to apply.

[24]

The statute provides that rejection entitles the buyer to treat the contract as at an end,

as repudiated. There arises an immediate right to a refund and, since the contract is at an

end, the buyer has no obligation to continue to pay instalments under the contract. In

providing (section 24(8)) that any refund may be reduced by a deduction for use the statute

must be taken to mean deduction for use during the period between delivery and rejection,

given the effect of the common law, and the terms of section 20(14). The latter restricts the

refund under a contract of hire purchase "only to the part of the price paid", with the effect

that the quantification of the refund is crystallised at the moment of rejection.

Submissions for the third party

[25]

The consequence of rejection is that the contract is treated as being at an end. To

determine the effect of that one looks to the common law, under which the contract is

rescinded. That has the effect of bringing the possessory interest of the hirer to an end, and

consequently they no longer have any entitlement to make use of the goods. The Act

contains an unqualified requirement that the buyer must make available the goods after

exercising his right to reject (section 20(7)(b)). The Act has not changed the law that rejection

ends the contract- it says so in terms. The Act does not create some new possessory right

post rejection.

[26]

As to the provisions relating to refund, the sum falls to be crystallised and calculated

at the point of rejection, and any reference to use since delivery of the goods must mean use

between delivery and rejection.

Interveners

[27]

The effect of the new right in the 2015 Act is that the consumer is entitled to treat the

contract as at an end (not bring it to an end). It is an unconditional right, a far wider and

more powerful remedy than the old common law one, under which exercise by the buyer of

the remedy of rejection, even if validly made, did not entitle him to treat the contract as

being at an end- this was entirely dependent on the reaction of the seller. If the seller

accepted the rejection, the contract came to an end, but otherwise the buyer had to treat it as

enduring until resolved by the court, hence the obligation to put the asset into neutral

custody and refrain from using it.

[28]

However, the 2015 Act disapplied the common law right to reject in consumer

contracts, as well as the rights contained in the Sale of Goods Act 1979. The 2015 Act

prescribed a detailed statutory scheme setting out the consequences which followed a

consumer exercising his right to reject, as well as the conditions that attached to the exercise

thereof (section 20(4) and (7)). Nothing contained therein suggested that Parliament

intended it to be subject to the limitations which had formerly applied. Rather, the explicit

disapplication of the 1979 Act to consumer contracts suggested the contrary.

[29]

The final right to reject (section 24) was derived from EU Directive 1999/44/EC. From

the recitals to the Directive, the following principles could be derived. First, conferral of high

level protection upon consumers was intended (recital 1). Second, limitation on the right to

rescind would contradict its purpose, to achieve a "common set of minimum rules of

consumer law" (recital 5). Article 8 provided that it was intended to be a sui generis remedy

setting a minimum level of protection, thus one which Member States should not weaken by

the adoption, or maintenance, of national measures. Third, it was not intended that rights

could be indirectly waived or restricted by the consumer (recital 7). Rather, it was intended

that parties could not by common consent restrict or waive the right to rescind (recital 22).

Fourth, detailed arrangements by which rescission may be effected did not relate to

restrictions or qualifications of the right (recital 15).

[30]

By providing for deduction for use, and that no deduction could be made in respect

of use after the trader has agreed to take repossession of the goods, Parliament had clearly

envisaged continued use post-rejection without the right to a refund being lost. To hold

otherwise would be seriously to weaken the consumer's position as against the rest of the

UK. Unless post-rejection use was possible, the trader could simply delay the refund and

collecting the goods in order to circumvent the right to reject.

[31]

No exception would have been taken to arguments presented on the general

principles of personal bar, under which there would have been inquiry into the facts

concerning the circumstances of the rejection, and the nature and whole circumstances of

any use of the vehicle, including the practicability of alternatives, to determine whether it

was of such a degree and extent to be entirely inconsistent with the maintenance of rejection.

The problem was the absolute nature of the ban imposed, which hands what is in many

cases a decisive advantage to a trader who may wish to avoid paying a refund, contrary to

the purpose of the legislation.

Analysis and decision

Preliminary observations

[32]

The Sheriff essentially started addressing the case on the basis that it was an aspect of

the operation of the principles of personal bar, but seems to have reached the conclusion that

any use was sufficient to constitute an absolute bar, notwithstanding the terms of the statute,

and to endorse the observations made in Electric Construction. The Sheriff Appeal Court

took a different tack, and concluded that "the rule that defective goods should not be used

after rejection is not governed by the general principles of the concept of personal bar." It is

a more specific and more restrictive rule, as explained in Ransan, the effect of which is that

any continuing use of the goods constituted adoption of the contract and a retraction of the

rejection. The fact that cases such as Ransan were concerned less with consumer rights than

with rights between merchants did not prevent its continued application to the former

situation, since the rule had survived the introduction of the 1893 Sale of Goods Act and the

introduction of the remedy or reduction and damages. When the 1893 Act spoke of

rejection, it was taken to mean rejection "according to known legal conditions" (Electric

Construction) and those conditions included a rule that post rejection use of the goods was

absolutely barred.

[33]

We should point out that the issue is a narrow one: it was accepted in argument that

the ordinary principles of personal bar may apply, in which case the question whether the

consumer was personally barred from insisting in the rejection would be determined by an

assessment of the whole facts and circumstances of the case, following inquiry. As the

interveners noted, in that case the issue would, to a greater or lesser extent require an

investigation into the facts. If the circumstances of the use are such that the trader seeks to

establish that the consumer has personally barred himself from standing on the rejection,

there would generally be an inquiry into the circumstances to ascertain whether his actions

have been of such a degree to justify the conclusion that he has abandoned the rejection and

affirmed the contract. The situation between a consumer and a trader is one in which a great

deal of power remains with the trader; and this, together with the practical consequences to

the consumer, including the cost, affordability and inconvenience, of taking any other course

of action, would be relevant. The question though, would not simply be whether the

consumer has continued to use the goods, or pay the finance, but whether his whole actions,

in light of all the circumstances, were such as to personally bar him from insisting on the

rejection. Moreover, in the present case we were not called upon to consider what actions

might now be such as to constitute a bar, nor the scope of such a bar, having regard to the

terms of the statute. The learned editors of Chitty on Contracts (34th edition, 2023), suggest

that

"it seems clear that the omission of any reference to the loss of the consumer's right

to reject the goods by committing an act inconsistent with ownership was also a

deliberate choice on the part of the legislature".

Whether, and how, that impacted upon notions of the principles of personal bar in this field

were matters beyond the scope of the arguments presented in this case.

[34]

The criticism was fixed on the approach of the Sheriff Appeal Court which admitted

of no inquiry into the facts and proceeded on the basis that there was an absolute bar on use

post-rejection, notwithstanding the terms of the 2015 Act.

[35]

The appellants presented the case on the basis that (i) the Ransan bar was never good

law, and Electric Construction was wrongly decided; (ii) even if it had been good law, it had

never applied to contracts of hire purchase; and (iii) in any event it is not compatible with

the 2015 Act, given its scope and purpose. It was accepted that if the appellant was correct

about this third point, the remaining points would not arise for consideration. It would not

be necessary to determine whether Ransan (which was not actually referred to by any party)

justifies the conclusions drawn from it, nor whether the reasoning in Electric Construction

withstands scrutiny. We therefore start with consideration of the statute, without examining

whether the Sheriff Appeal Court was right in the inferences it drew from the two cases just

mentioned.

The 2015 Act

[36]

The starting point for an exercise of statutory construction must be the words of the

statute itself, and where the statute was enacted pursuant to a European Directive, the policy

and words of the Directive. Examination of the directive makes clear that enhanced

consumer protection was at the heart of it. The recitals speak of "achievement of a high level

of consumer protection" (recital 1); of measures which "will strengthen consumer

confidence" (recital 5); of a "growing concern to ensure a high level of consumer protection"

(recital 23). Recital 7 notes that in some legal traditions it might be useful specifically to

provide that agreements which directly or indirectly waived or restricted consumer rights

resulting from the Directive are not binding on the consumer. Recital 20 commences:

"Whereas the parties may not, by common consent, restrict or waive the rights

granted to consumers, since otherwise the legal protection afforded would be

thwarted;".

These Recitals are echoed in Article 7(1) which provides that:

"Any contractual terms or agreements concluded with the seller before the lack of

conformity is brought to the seller's attention which directly or indirectly waive or

restrict the rights resulting from this Directive shall, as provided for by national law,

not be binding on the consumer".

Again this suggests an intention to achieve a high level of protection for the consumer, and

that the rights conveyed by the Directive should not be subject to undue limitation.

(Section 31 of the 2015 Act serves to prevent traders from contracting out of the consumer's

rights under the Act.)

[37]

The Directive sets out minimum standards. It provides that the rights under the

Directive "may all be exercised without prejudice to other rights which the consumer may

invoke under the national rules". This makes plain that the rights must not be subject to

limitations imposed by national rules. As ever, the Directive allows States to adopt more

stringent measures, "to ensure an even higher level of consumer protection" (recital 24 and

article 8). The UK did this by the introduction of the short term right to reject, which is a

national protection not provided for in the Directive. It is obvious that Parliament clearly

had in mind a purpose of significantly strengthening consumer rights by the provisions of

the 2015 Act.

[38]

In our view it is clear that the scheme of the Act differs in substantial ways from the

protection previously offered to consumers. Once rejection is intimated the consumer is

unequivocally entitled to treat the contract as at an end, and this applies whether or not the

trader accepts the rejection. The power imbalance which previously existed between

consumer and trader, in favour of the trader, is thus to a substantial degree inverted. There

are still consequences which hinge on whether the trader accepts the rejection (see e.g.

section 20(15)), but the whole aim appears to be to prevent a dilatory trader from eroding a

consumer's rights by failure to engage. The scheme is essentially consumer-centric, putting

more power in the hands of the consumer.

[39]

From the moment that rejection is intimated, the trader is under an obligation to give

a refund; and the consumer is under an obligation to make the goods available for collection

(section 20(7)). Continued use by the consumer is not incompatible with that latter

obligation.

[40]

The provisions as to how the statutory right to a refund works say that the consumer

is entitled to get back the same amount of money as he has paid (section 20(10)). There is no

time limit put on this, and it must surely mean that the consumer gets back whatever he has

paid up to the point of the refund being given (subject to appropriate deduction for use, if

any). On the face of it this supports the possibility of post-rejection use. Vis a vis a HP/PCP

contract, if it is treated as at an end before the whole price is paid the entitlement is only to

that part of the price which has been paid (section 20(14)). This again is consistent with post

rejection use.

[41]

The refund must be paid without unreasonable delay and in any event within

14 days of the trader agreeing that the consumer is entitled to a refund. This surely indicates

that there must be anticipated a period of post-rejection use. The mere fact that some delay

in payment of a refund is permissible implies as much. Essentially, the Act envisages post

rejection use and then provides recourse for the trader to make sure he is not disadvantaged

thereby. It would have been very easy to specify that there should be no use post-rejection

but that has not been done and the statute clearly envisages that there might be such use,

which may be reflected in a reduction of the refund should the circumstances so merit.

[42]

The consumer may only pursue rejection or reduction of price on certain conditions

(section 24(5)). These are that post repair/replacement the goods remain disconform; that

repair/replacement is impossible or disproportionate; and that the trader having been

required to repair/replace has not done so within a reasonable time. Immediate cessation of

use by the consumer post-rejection is not a condition for the exercise of either of these rights.

[43]

If the consumer does exercise the final right to reject, any refund may be reduced by

a deduction for the use which he has made of the goods "in the period since they were

delivered"(section 24(8)). These are very similar to the words used in the Directive

(recital 15), transposed to the statute. The only end point reasonably to be inferred from this

is the date at which the refund is to be given and calculated. The "period since they were

delivered" does not suggest a period ending with the date of rejection. The period in

question is the period from delivery to refund, not the period from delivery to rejection. The

effect, if any, of continued use may be reflected in a suitable deduction in favour of the

trader, if justified by the whole circumstances. There is to be no such deduction in respect of

use when the consumer only had the goods because the trader failed to collect them at an

agreed time, see section 24(9). Whether this envisages that parties had agreed a collection or

whether it envisages a situation where the trader had failed to make arrangements to set an

agreed time, the provision necessarily envisages a period of post-rejection use, which in such

circumstances would not result in any deduction.

[44]

We agree with the submission for the interveners that if use of the goods after

rejection resulted in the consumer losing his or her right to a refund, there would be no need

to qualify the trader's right to reduce the refund, as the consumer would not be due any

refund at all: section 24(9) would be redundant.

[45]

The arguments for the respondents would result in placing a strict limitation on the

consumer's rights under the Act, and in many circumstances make it impossible for the

consumer, who is in the weaker position, to insist in his rejection of the goods. It would

return the trader to a position of undue strength and allow a dilatory, or unscrupulous

trader, to thwart the consumer's ability to exercise his statutory rights. The effect would be

that the automatic right to refund, which is a strong step forward in favour of consumer

rights, would become somewhat illusory, because the effect of a complete ban on post-

rejection use would place undue economic pressure on the consumer, the weaker party. It

would be artificial not to recognise the practical issues which might arise where the

consumer exercised the right of rejection, but the trader refused to engage. For example, it is

highly likely that if the consumer stopped payment under the contract the trader would take

action under the Consumer Credit Act 1974 and the consumer's credit rating might be badly

affected; the Act provides a sensible way to avoid this undesirable consequence which

would clearly weaken rather than strengthen consumers' rights. If the consumer continues

to pay the finance and use the goods, he is not automatically to be taken as thereby affirming

the contract. He will remain entitled to a refund of all sums paid by him, subject to any

deduction which is appropriate for use.

[46]

In any event, there is one remaining issue, namely the fact that the appellant has on

the pleadings a claim for common law damages for breach of contract. He is entitled to

pursue such a claim as well as his statutory claim although he is not entitled to recover twice

for the same loss. The damages claim flows from the allegation of material breach of

contract, and is a matter for inquiry, which should not have resulted in decree of absolvitor

at debate.

[47]

It follows that in our view the decision of the Sheriff Appeal Court was wrong, both

in respect of the damages claim, and, in so far as it applies to the pleadings as they stand, in

respect of the claims under the 2015 Act. The interlocutor of that court must be recalled

along with those of the Sheriff dated 6 and 27 April 2022, and the matter remitted to the

Sheriff to proceed as accords.