Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: A709/11
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal by   MARK BOYDE Defender and Appellant   in the cause   CLIPPER VENTURES PLC Pursuers and Respondents   against   MARK BOYDE Defender and Appellant ___________________________

 

Act: Mr Pugh, advocate for appellant

Alt: Ms Brogan, solicitor, for respondents

 

 

EDINBURGH, 24 December 2012

The Sheriff Principal having resumed consideration of the cause refuses the appeal; adheres to the sheriff's interlocutor of 20 April 2012; finds the appellant liable to the respondents in the expenses of the appeal; allows an account thereof to be given in and remitted to the Auditor of Court to tax and to report.

(signed) Mhairi M Stephen

 

NOTE:/

 

NOTE:

1.          This is an appeal by the defender and appellant Mark Boyde against the interlocutor of the sheriff on 20 April 2012 having heard debate on both parties preliminary pleas. The sheriff repelled the defender's pleas in law; sustained the pursuers' first and third pleas in law and granted decree as craved.

 

2.          The action relates to a contract between the parties. The contract is 5/1 of process. It is called the Clipper 09/10 Race Crew Agreement dated 29 August and 5 October 2008.

 

3.          The pursuers are Clipper Ventures PLC who are based in the south of England. The pursuers' enterprise organises round the world yacht races. Interested individuals, such as the appellant, may pay a fee to be part of the crew on the yachts for all or selected legs of the round the world voyage. The crew "legs" and price are set out in schedule 1 to the contract. Individuals contracting to be part of the crew on a leg or several legs require to take up the training package which is compulsory and at an additional cost. The appellant signed the Agreement to be part of the crew of a yacht for legs 6 and 7 together with the compulsory training package. The cost of the two legs came to £8,940 and the compulsory training package £2,950 making a total of £11,890. The contract is dated 29 August 2008. That appears to be the date when it was signed on behalf of the pursuers, Clipper Venture PLC. David Cushworth, the recruitment manager, signed on behalf of the pursuers. The defender and appellant signed the contract on 5 October 2008. On signing the agreement a deposit was due of £500 which in addition to an earlier deposit of £100 made a total of £600 paid on signature. Thereafter the fees were due to be paid in equal monthly instalment s by way of standing order between the date of signing and 12 June 2009. It is not disputed that on 9 May 2009 the defender cancelled his place in the 09/10 round the world race. The Agreement was not individually negotiated in the sense of being tailor made to the appellant but reflected the appellant's choice of sections of the round the world race which he wished to participate in.

 

4.          The pursuers raised an action in this court for 75% of the fees due which is the sum first craved and £100 being the administration fee on cancellation and the sum second craved. Termination of the Agreement by the prospective crew member is governed by Clause 21 of the Agreement.

 

5.          The matter is set out in the sheriff's judgment at paragraph 2. During the debate it was accepted on behalf of the appellant that he had terminated the contract. Pursuant to Clause 21.1(d) (being the Table of Cancellation Charges) 75% of the fees became due for a termination by the crew member between 17 January 2009 and 16 June 2009 being the date by which all fees in terms of Clause 17 of the Agreement were due to be paid. Provision was also made for an administration fee to be payable of £100.

 

6.          The debate before the sheriff related firstly to the issue of whether the Unfair Terms in Consumer Contracts Regulations 1999 ("The 1999 Regulations") applied to this case and secondly, if they apply whether Clause 21 of the contract is binding on the defender given his argument that Clause 21 is an unfair contract term.

 

7.          Accordingly, debate turned on whether the defender is a "consumer" in terms of Regulation 3 of the 1999 Regulations and if so, whether Clause 21 of the Agreement is unfair? The sheriff decided that the question of whether the defender was a "consumer" in order to bring himself within the ambit of the 1999 Regulations was a matter for proof before answer. The definition of consumer in Regulation 3 of the 1999 Regulations requires consideration to be given to whether the person was acting for purposes outside his trade, business or profession. Put shortly, the sheriff decided that an examination of the whole facts and circumstances surrounding the contract would be required before that issue would be determined. Although the date of the contract was of crucial importance it did not exclude the leading of evidence as to events arising much later which may be relevant to or throw light on the status of the parties at the time the contract was entered into. In particular, the sheriff declined to find that the e-mail correspondence between the parties in 2011 was irrelevant for that purpose and allowed a proof before answer.

 

8.          The second issue before the sheriff which is the de quo of this appeal is the question whether Clause 21 of the Contract or Agreement is unfair assuming that the 1999 Regulations apply. The sheriff, for reasons set out in his judgment on pages 16 to 18, took the view that the relevant clause, Clause 21, could not be characterised as unfair having regard to the parties, the nature and terms of the contract and the relevant case law.

 

9.          Against that background I heard submissions for both appellant and respondents.

 

APPELLANT'S SUBMISSIONS

10.           The appellant appeals both parts of the judgment and argues that there is no requirement for proof on the question of whether the appellant is a "consumer". He also argues that the pursuers' averments in Article 3 of Condescendence (page 4) relating to the business purpose of the appellant's involvement in the crew agreement are irrelevant. Only an individual can participate in the crew agreement and training. But for the e-mail correspondence which postdates termination of the contract there is no basis to suggest that the appellant was anything other than a consumer. Accordingly, the 1999 Regulations apply.

 

11.           Secondly, Clause 21 is an Unfair Contract Term. It creates a significant imbalance between the company and the consumer. No regard is had to the stage of the cancellation being nearly a year before the race. The cancellation charge bears no relation to actual loss. The company are entitled to resell or attempt to resell the berth and no allowance has been made for mitigation of loss. The cancellation charge cannot be justified. It was suggested therefore that the sheriff reached a wrong conclusion on the matter of fairness at page 18 of his judgment. Mr Pugh suggested that the sheriff had wrongly applied the unfairness test. Mr Pugh referred to Director General of Fair Tradng v First National Bank [2002] 1AC 481; Heifer International Inc v Christiansen [2007] EWHC 3015; Munkenbeck & Marshall v Michael Harold [2005] EWHC 356 and Chitty on Contracts 30^th Ed. I was also referred to the Office of Fair Trading - Guidance for the Unfair Terms in Consumer Contract Regulations 1999 and the Package Tour Guidance also issued by the OFT on Cancellation by the Consumer. These authorities were relied on to support his argument that the terms of Clause 21 brought it within the scope of Regulation 5(1) and paragraph 1(e) of Schedule 2 to the Regulations.

 

12.           The appellant provided written submissions and therefore I do not propose to set out at length his oral submissions which substantially followed the written text. Mr Pugh's primary submission was to the effect that there was sufficient in the pleadings to determine this matter firstly, that the defender was a consumer and secondly, that Clause 21 was unfair. There was no requirement for proof and I should allow the appeal and grant decree of absolvitor. However, Mr Pugh acknowledged that the esto case in terms of Clause 17 was not argued before the sheriff; that there was no averment that the pursuers had sought to terminate under Clause 17 due to non-payment (Clause 17.3).

 

13.           Accordingly, the appellant's subsidiary position was that I should find the averments relating to the consumer issue and the unfairness or fairness of Clause 21 to be irrelevant averments which would allow me to dismiss the action. If I was not persuaded on that I should allow a proof before answer on the case pled on breach of contract at common law and on the alternative case under Clause 17. If I was not satisfied that Clause 21 was an unfair contract term on the basis of the pleadings then I could allow the appeal to the extent of ordering enquiry on the question of the fairness or otherwise of Clause 21. I should award the expenses of the appeal to the appellant and certify the cause as suitable for the employment of junior counsel.

 

Respondents' submissions

14.        Miss Brogan addressed me on behalf of the respondents. The sheriff made no error in his approach to either of the issues before him at debate. Accordingly, the appeal should be refused with expenses in favour of the respondents. If I was inclined to allow the appeal there was no basis on which the action could be dismissed or decree of absolvitor granted given the alternative cases pleaded by the respondents.

 

15.           On the issue of whether the appellant is a consumer the matter has been properly discussed by the sheriff and on the pleadings before him he properly allowed a proof before answer. The respondents do rely on the e-mail correspondence. But for that correspondence the appellant would be considered a consumer. It is the appellant himself who puts the issue of his own status before the court by emphasising his business's involvement in the enterprise. The court is entitled to look at the entire facts and circumstances surrounding the contract making a proof before answer the appropriate disposal.

 

16.           The sheriff has given a careful analysis of the case law. These authorities required to be treated with a degree of care given that the cases related to jurisdiction which called for a particular approach to the concept of "consumer".

 

17.           Miss Brogan addressed me on the second ground of appeal which is the essence of this case. Is Clause 21 of the contract unfair? The sheriff gives a correct analysis of the clause and Regulation 5 of the 1999 Regulations.

 

18.           Clause 21 sets out the tariff of cancellation charges in accordance with the stage of cancellation. It discloses fair and open dealing with the individual. It is clear as to the consequences of any decision by the crew member to terminate in plain and intelligible language. Applying the test set down by Lord Bingham in the Director General of Fair Trading v First National Bank the appellant's criticism of the sheriff's analysis is flawed.

 

19.           It is necessary to look at the nature of the contract. The contract was an agreement drafted in advance. The appellant was a business man (Company Director); it was not individually negotiated and the appellant being in control of his own destiny made a decision to engage in this contract for the specific purpose of participating in the training for and being part of the crew of the Road the World Yacht Race.

 

20.           Clause 21 was proportionate given the nature of the contract and the need to ensure that each yacht was properly crewed with a minimum crew number. This was far removed from a package holiday situation.

 

21.           Furthermore, if Clause 21 is unenforceable due to it being an unfair contract term the contract will nevertheless continue and the respondents are entitled to sue under the contract for the instalments due less any outlays not incurred such as food and clothing and survival kit etc. The respondents have the option of suing under Clause 17 or at common law in respect of the appellant's repudiation of the contract. Any sums due under Clause 17 or at common law are, it is submitted, greater than the sum craved. Accordingly, no error having been identified in the sheriff's approach to the question of unfairness the appeal should be refused with expenses in favour of the respondent. Should there be doubt as to the matter of the fairness or otherwise of Clause 21 then the question of whether the appellant is a "consumer" and whether Clause 21 is unfair or not should be remitted to a proof before answer.

 

22.           Miss Brogan did not agree that the cause was sufficiently complex to certify as suitable for the instruction of junior counsel for the appellant.

 

DECISION

23.           It makes sense to deal first of all with the question of whether Clause 21.1(b) of the Agreement between the parties is unfair or not in terms of the 1999 Regulations. If the clause is unfair it is unenforceable against the appellant who terminated the contract or agreement on 19 May 2009. Although not formally admitted it did not appear to me that the termination was controversial. Therefore the issue is - did the sheriff err in his approach to the "unfairness" or otherwise of that clause. If he did not then the question of whether the appellant is a "consumer" does not arise.

 

24.           The appellant's position is set out in the second part of the note of appeal. According to the appellant the sheriff made an error. The clause in question made no allowance for mitigation of loss; the level of charge is disproportionate as a result. The effect of the cause is to create the significant imbalance which Regulation 5 of the 1999 Regulations strikes at. Accordingly, did the sheriff err in holding that the clause is fair?

 

25.           The contractual context is important. The nature of this agreement is unusual and for the specific purpose of participation in the "Clipper Round the World Yacht Race" (legs 6 and 7), commencing on the West Coast of America and ending on the East Coast of America via the Panama Canal. The price to be paid by the participating yachtsman or crew member includes participation in the two legs and training in the UK and outwith the UK; clothing and food whilst on board and during training. The participant (the appellant) is responsible for all travel to and from the beginning and end of the race or legs and all training. Training is a prerequisite to participation (Clause 10). Training has a value in itself by virtue of Clause 10.3 whereby even if Clipper terminates the Agreement due to a breach of 10.1 the participant still requires to pay to Clipper £120 per day for all training received or booked together with the cost of clothing. Participants have obligations to discharge beyond payment and participation as a crew member. I refer, in particular, to Clauses 13, 14, 15 and 16. Health and safety and standards of conduct and behaviour are requirements in terms of Clauses 5, 6, 7, 8, 9, 10 and 11. Personal information and accurate medical information is clearly of importance together with full disclosure of any criminal record. This is not difficult to understand. A level of competence and training coupled with due regard for the safety of self and others and certain standards of behaviour are bound to be important given the nature of the enterprise and the close co-operation required of crew members in a yacht race. They must live in close proximity and are engaged in an exhilarating but potentially hazardous venture. It appears to me that Clause 4 may be of some considerable importance. The title of that clause is "Your Appointment and Commitment". This clause confirms the appointment; allocation to the yacht and the duties and commitment of a crew member once appointed. Counsel for the appellant sought to argue that the failure on the part of respondents to allocate the appellant to a yacht by the time of termination of the contract was significant. In answer 3 on page 10 of the record the appellant states "the defender was not allocated to a particular yacht."

 

26.           Accordingly, an analysis of the contract or agreement indicates to me that this is an agreement for a very specific purpose where commitment is essential. It is not difficult to understand that the idea of participating in a round the world yacht race is very attractive to those inclined to a combination of yachting and adventure. It is likewise clear from the agreement that serious commitment and training is required together with adherence to rules of behaviour and conduct. Crew members will operate together in close confines and proximity and a baseline level of competence and behaviour is necessary. I also understand entirely the need for a minimum number of crew and therefore the need to engage and contract with people who are committed to the venture rather than enthusiastic but casual amateurs.

 

27.           Accordingly, in my view the nature of this agreement is far removed from the situation faced by people contracting with a holiday company to go on a package holiday. It is indeed almost the obverse. Usually a package holiday would contain the provision of a hotel or villa; air or other travel; together with resort and transfer services. The Clipper agreement is almost at the other end of the spectrum where payment is but one of the obligations which the participant requires to fulfil. It is far from a common place agreement and it can properly be said to be of the nature of specialised adventure. If this is a consumer contract it is also quite different from the common place consumer contract such as a package holiday to which I have already referred; or a fitted bedroom or kitchen where there is a prospect of cancellation as production progresses and the contract governs how the cancellation charge is levied and at what stage. All are likely to have sliding scales of cancellation charge. The closer to the holiday or other event such as the fabrication of the fitted furniture the greater the charge. As the OFT states sliding scales provide consumers with a certainty of knowing precisely how much they are liable to lose by cancelling at any given point.

 

1999 REGULATIONS

28.           clearly the regulations are important as an unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on that consumer. (Regulation 8(1)) Nevertheless the contract shall continue to bind the parties if it is capable of continuing without the unfair term. Clearly in this case the contract will continue whether or not Clause 21 is enforceable. The respondents have a case against the appellant under Clause 17 of the contract and at common law for breach of contract.

 

29.           Regulation 5.1 tells us more about what constitutes an unfair contractual term in the following language

5(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

In this case it is not disputed that Clause 21 is part of a standard form contract or "Clipper agreement" and there is no suggestion that the terms were individually negotiated nor is there any averment to that effect either.

 

30.           Accordingly, the key words or phrases appear to be "good faith"; "causes a significant imbalance in the parties' rights and obligations" and it must be "to the detriment of the consumer".

 

31.           Regulation5(5) refers to schedule 2 of the regulations. The schedule contains an indicative but non-exhaustive list of the terms which may be regarded as unfair.

 

32.           Schedule 2.1 is the indicative and non-exhaustive list of terms which may be regarded as unfair - sub-paragraph 1(e) is in the following terms:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

The key phrase would appear to be "disproportionately high".

 

33.           Accordingly, whether or not the term is or is not unfair will depend on whether it causes a significant imbalance in the parties' rights and obligations under the contract. This involves concepts of good faith, and its converse bad faith.

 

34.           As indicated in the authorities the imbalance must involve detriment to the consumer. It is also noted that the non-exhaustive list in schedule 2 gives situations which "may" be regarded as unfair. It appears to me that the schedule is given as a prompt or alert to situations which could be unfair. Subsection (e) does not give an example as such of an unfair term. Rather it gives categories which may include a cancellation clause and one which requires the defaulting consumer to pay a "disproportionately high sum in compensation".

 

35.           It is worth noting that the regulations and their predecessor regulations (Unfair Terms and Consumer Contracts Regulations 1994) were enacted to give effect to the EU Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts.

 

36.           It is unnecessary for me to consider the directive and the European jurisprudence in detail. The directive and its many recitals have been considered by the House of Lords in a number of cases involving proceedings by the Director General of Fair Trading against a number of banks. Both parties in this appeal referred to the House of Lords decision in Director General of Fair Trading v First National Bank PLC. The sheriff refers to the dicta of Lords Bingham and Hope in his judgment and the sheriff has analysed the import of that decision from paragraphs 18 onwards in his judgment. It is indeed the sheriff's reasoning with reference to the bank case that the appellant seeks to challenge.

 

37.           I have revisited that decision in the course of this appeal. The House of Lords travelled over familiar concepts of "fairness" and "unfairness" together with "good faith" in the context of the EU Directive and the 1994 Regulations which to all intents and purposes mirror the 1999 Regulations except that the definition is contained in Regulation 4(1) rather than 5(1). Both Lords Bingham and Hope referred to the 15^th and 16^th recitals to the directive as being relevant to the interpretation of the 1994 Regulations. Whereas the recitals suggest that there must be an overall evaluation of the different interests involved in making an assessment and assessment of good faith it is said that "particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account".

 

38.           Against that background Lord Hope gives the following opinion which may be of assistance in this case. At paragraph 45 referring to the 16^th recital he makes this observation:

"It states that an assessment of the unfair character of unfair terms must be supplemented by an overall evaluation of the different interests involved. Regulation 4(2) indicates the wide range of circumstances to be taken into account in the assessment. It provides that the assessment is to be done at the time of the conclusion of the contract. That an appreciation of how the term will affect each party when the contract is put into effect must clearly form part of the exercise."

 

39.           The dicta of Lord Bingham have frequently been referred to and reliance was placed on his opinion in the appeal before me. The sheriff also sets out in his judgment his influential words at paragraph 17. I do not intend to rehearse that part of Lord Bingham's judgment other than to observe that he stresses that: "The requirement of good faith in this context is one of 'fair and open dealing' " and goes on to say "Openness requires that the terms should be expressed fully, clearly and legibly containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer."

 

40.           It is clear from the dicta in the First National Bank case that the assessment should be made at the time the contract is concluded. The concepts of good faith, fairness and unfairness are, of course, commonly encountered and tested in the courts. These concepts do not operate in a vacuum and good faith requires not only openness and fairness in how the contractual terms are expressed but also fair dealing in the sense of not taking advantage of the consumer. As Lord Bingham says "It looks to good standards of commercial morality and practice". He considered that the regulations set down a composite test which covers (1) the making of the contract and (2) its substance.

41.           Did the respondents Clipper Ventures deal fairly and equitably with the appellant?

The sheriff proceeds to apply the tests set out in the First National Bank case and also the requirements of the regulations. He answers that question in the affirmative.

 

42.           In my view the sheriff at paragraph 19 properly analyses the regulations and the speeches to which he was referred. He poses the question "Is there a significant imbalance in the rights of the parties? And is there detriment to the consumer (as opposed to the supplier)?" The answer to these questions may or may not crystallise at the conclusion of the contract. However in answering these questions it is necessary to look at the contract itself and in my view the sheriff was correct to consider the nature of the goods and services for which the contract was concluded. His reasoning and analysis can be seen at paragraph 21. Before I turn to that passage of the sheriff's judgment it is proper to look at the provisions of paragraph 1(e) of Schedule 2 to the Regulations. Mr Pugh relied on the list contained in the schedule and in particular 1(e). As I have already said the list appears to me to suggest situations which may fall foul of the regulations. This suggests that the court should have regard to that situation and then conduct the type of assessment suggested in the authorities. The sheriff deals with the expression "disproportionately high sum in compensation" by suggesting that there must be a band of proportionality in compensatory payments. Does the required payment fall within the band of proportionality or not? It is such that would engage the definition of causing significant imbalance to the detriment to the consumer? In my view the sheriff correctly observes that the respondents chose to pursue the appellant firstly in respect of the cancellation clause (Clause 21) rather than Clause 17 (non-payment of fees) or at common law. The sums due in net terms in respect of the non-payment of fees is a sum significantly higher than the sum craved under Clause 21. Accordingly, this points towards a proportionate rather than a disproportionately high sum of money.

 

43.           I turn to the facts surrounding the current agreement. As I have observed the nature of the agreement is specific and fairly unusual. The purpose of the contract being to allow the participant to be part of a crew in a round the world yacht race. This is almost the opposite of a package holiday situation when excess rooms can be off-loaded by the tour operator if they are not taken or are cancelled. In the circumstances of the Clipper Agreement it was necessary to have committed crew members as there was a minimum requirement for trained individuals to make up the crew. If that number was not met or maintained it was not an option to proceed with a smaller number of crew. It would be necessary to engage or hire crew members to maintain the crew complement. If it was not possible to re-sell the berth it would be necessary to engage, in effect, a professional crew at corresponding cost. Having a trained crew is the whole object of the agreement. Accordingly, this was understandably a material consideration for both the respondents and for the sheriff in deciding the question of fairness or unfairness. Furthermore, the sheriff correctly observes that mitigation of loss is a concept which relates to questions of damages for breach of contract and does not have the same or indeed proper application in the circumstances of this case where Clipper Ventures are suing under a contract for cancellation fees. This action is for payment of a debt not damages.

 

44.           Accordingly, in my view, the sheriff has approached the issue before him correctly and that was whether the amount the appellant was liable to pay in terms of Clause 21 was unfair or disproportionately high. It was accepted that the clause gave the appellant the right to terminate if he chose to do so and likewise made clear the consequences of termination at various stages in the contract. This has been described as a sliding scale. The closer to the event the greater the compensatory amount. This is acknowledged to be a common or normal approach to cancellation clauses. I was referred to the OFT Package Tours Guidance. Clearly, this is not a package tour but the OFT at 3.24 specifically states that "it does not object in principle to the use of sliding scales since they provide consumers with the certainty of knowing precisely how much they are liable to lose by cancelling at any given point." The Guidance goes on to confirm that the fairness of sliding scales should be assessed at the time the contract is made and that the compensation should represent a genuine pre-estimate of the supplier's loss from cancellation. The same requirement of pre-estimation is desiderated in the guidance given on the 1999 Regulations by the OFT (September 2008) at page 40. Whereas it may be possible to build in a broad brush pre-estimate in straightforward package holiday situations it is difficult to understand how that might be assessed given the quite specific nature of the current agreement when there is a positive requirement for a set number of crew. Accordingly, accepting that the terms of the agreement and Clause 21 in particular is clear, open and legible and that the clause relates to a consumer's right to cancel and that the compensatory payment or penalty is a part, albeit a substantial part, of the fees already due it is difficult to see where the unfairness lies and indeed where any significant imbalance lies such as to cause detriment to the appellant. The terms of the agreement are entirely straightforward on the cancellation penalty. It is shown not in small print but in a very clear form, namely a Table of Cancellation Charges in ascending scale. The layout of the table and ascending nature of the charges introduces clarity and certainty which is desirable in consumer contracts.

 

45.           It follows that I am not satisfied that the appellant has pointed to any error on the part of the sheriff either in his reasoning or analysis of the law. Setting the law in the context of the agreement between the parties the sheriff was correct not to characterise the relevant clause as unfair.

 

46.           That being so it is unnecessary to deal with the question of whether the appellant was a "consumer" at any length. I was not referred to the European jurisprudence on the definition of consumer. Consumer is, of course, defined in the 1999 Regulations (Regulation 3). Most of the authorities to which the sheriff was referred involved issues of jurisdiction and as such do not appear to me to either be determinative of or of assistance to the question before the sheriff. The sheriff refers to the paradigm case of the consumer of which this is not one. As I have already observed the agreement itself is of an unusual and somewhat specialist nature and the appellant's involvement in the venture and therefore his obligations under this contract are much more nuanced than that of a straightforward consumer contract.

 

47.           There is, of course, no doubt that the event which was central to the purpose of the contract could only be participated in by a natural person however that does not determine the matter. There are many contracts which can only be enjoyed by a natural person but may still have a business character of which airline travel is but one.

 

48.           It is difficult to criticise the sheriff for taking the view that he does when he states "In my opinion it would not be correct to reach a concluded view on whether the defender was a consumer without hearing evidence. On this issue I would be minded to allow parties a proof before answer." In doing so the sheriff has allowed parties to retain preliminary arguments on the relevance or otherwise of the e-mail thread in June 2011 when the appellant himself places his status in issue by putting the business nature of his involvement in the contract centre stage. Of course the appellant maintains that that it would be irrelevant to consider that correspondence as it was sent post-termination. It would difficult to say that the full facts and circumstances should not be before the court to allow proper consideration of the issue of the appellant's status especially when the appellant himself raises the business nature of the contract. It would be difficult for the appellant to argue that he has been prejudiced and in any event he retains his full arguments on the matter. Again, I do not consider that the sheriff's decision to remit the matter to a proof before answer is one which can be criticised. It preserves fairness for both parties and retains their preliminary pleas.

 

49.           Accordingly, I will refuse the appeal and award expenses in favour of the respondents. The question of certification of junior counsel for the appellant no longer arises. The issue has little impact given my decision on this appeal. However, the matters before the sheriff and on appeal do raise novel questions relating to interpretation of the 1999 Regulations and it would be difficult to say that it was not a case suited for the employment of junior counsel.

(signed) Mhairi M Stephen