• Gareth-Lee Smith

Where do the burdens of proof lie under the Consumer Rights Act 2015?

This article is far longer than it should be when you bear in mind the simplicity of the underlying principle that a claimant must prove his claim. However, the issue caused real problems for my client and so it deserves more analysis. If this clarifies the law in an under-reported field then I will be very pleased to have taken the time.


I recently represented a small business at trial in a consumer dispute over an allegedly faulty motorcycle. The Claimant alleged that the motorcycle developed a fault that may or may not have fallen within the first 30 days in order to give rise to an immediate right to reject. The Defendant denied any breach of implied terms under the 2015 Act, and cited a failure to comply with the manufacturer’s guidance on servicing the motorcycle; which, amongst other things, included the need to service after one month or 100 miles, whichever came first.

Neither party had opted to seek permission to rely upon expert evidence. There was no surprise here: the Defendant was in person and the Claimant had sought proper legal advice further down the line as trial approached.


The trial judge expressed concern that no expert evidence had been adduced. Neither party sought an adjournment for such evidence to be obtained. I submitted that the matter ought to proceed, and that my case would ultimately be that the combination of the absence of expert evidence and the credibility of my client’s workshop technician would be sufficient to dismiss the claim.


However, the judge disagreed and she gave the view – before the case had been opened – that she could conclude that any malfunction of the bike (and it was agreed that it had been presented to the bike retailer as unable to start) must be a failure to conform with the requirement that the bike should be of satisfactory quality, and so it was for the Defendant to show that the bike was not faulty and no breach of that implied term. This led to conclusion of the judge that it was the Defendant who needed the expert evidence and not the Claimant, and so the judge refused my application for costs thrown away through attending a hearing that was then adjourned for expert evidence to be obtained.


The question is: what was the correct interpretation of the 2015 Act, and how does the reversal of the burden of proof operate?


Section 19 of the Consumer Rights Act 2015


The relevant provisions that give rise to issues surrounding the burden of proof are those under Section 19:


19 Consumer's rights to enforce terms about goods


(3) If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11 , 13 and 14, or if they do not conform to the contract under section 16, the consumer's rights (and the provisions about them and when they are available) are—


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

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

(c) the right to a price reduction or the final right to reject (sections 20 and 24).


(4) If the goods do not conform to the contract under section 15 or because of a breach of requirements that are stated in the contract, the consumer's rights (and the provisions about them and when they are available) are—

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

(b) the right to a price reduction or the final right to reject (sections 20 and 24).



(14) For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.


Put succinctly: if goods do not conform with a contract because they are not of satisfactory quality (et cetera) at any time in the first six months after delivery then they are taken not have conformed with the contract on the day of delivery. That presumption can be rebutted if it can be proved that the goods did conform with the contract on that day.


Proving a breach of the implied term that goods be of satisfactory quality


The maxim is that “he who asserts must prove”. If a Claimant asserts that a motorcycle does not conform with the contract because it does not start and so it is not of satisfactory quality then he must prove two things on the balance of probabilities:


a) The motorcycle does not start; and

b) The fact that the motorcycle does not start means that it is not of satisfactory quality.

Only in establishing both of these things on the balance of probabilities does the Claimant have a prima facie case. He cannot simply come to court and say “my motorcycle doesn’t start, now what do you say about that?”.


Issue (a) is a matter of fact which is not difficult to establish. Indeed, in my case it was conceded. Issue (b) looks deceptively simple, but is a mixed question of fact and law.


The correct approach to take to establish and apply the standard of “satisfactory quality”


Section 9 of the Consumer Rights Act 2015 reads as follows:


9 Goods to be of satisfactory quality


(1) Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.


(2) The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of—

(a) any description of the goods,

(b) the price or other consideration for the goods (if relevant), and

(c) all the other relevant circumstances (see subsection (5)).


(3) The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—

(a) fitness for all the purposes for which goods of that kind are usually supplied;

(b) appearance and finish;

(c) freedom from minor defects;

(d) safety;

(e) durability.


(4) The term mentioned in subsection (1) does not cover anything which makes the quality of the goods unsatisfactory—

(a) which is specifically drawn to the consumer's attention before the contract is made,

(b) where the consumer examines the goods before the contract is made, which that examination ought to reveal, or

(c) in the case of a contract to supply goods by sample, which would have been apparent on a reasonable examination of the sample.


The judge’s conclusion before evidence had been heard amounted to: “A motorcycle that is less than two months old should start no matter what. On the face of it the only reason why a motorcycle would fail to start in the first two months after delivery is that it was not of satisfactory quality. That will be my conclusion unless you, Defendant, can show me otherwise.” But that is not a proper application of the 2015 Act because it omits any analysis of how the benchmark of “satisfactory quality” is assessed.


How to approach the issue of whether goods are of satisfactory quality


Let us remind ourselves that the Defendant’s case in my example was that the motorcycle would have worked perfectly well if it had been serviced in line with the manufacturer’s guidelines. There are two possible approaches to the issues, but only one can be right:


Approach 1

1. Start from the position that motorcycles that are purchased as brand new should be without defect for the first six months of use.

2. If any defect arises in the goods within those first six months then on the face of it it is clear that the motorcycle was not of satisfactory quality.

3. Now the Defendant must show the motorcycle was of satisfactory quality on the day that it was delivered. If it cannot then the claim succeeds.


Approach 2


1. Establish the standard against which it can be judged whether this particular motorcycle was of satisfactory quality by reference to the factors detailed in Section 9.

2. If a defect arose in the goods within the first six months after delivery, can the Claimant prove that the defect in question demonstrates that the motorcycle did not meet the standard that a reasonable person would consider satisfactory as per Step 1?

3. If so, then on the face of it the motorcycle was not of satisfactory quality.

4. Now the Defendant must show the motorcycle was of satisfactory quality on the day that it was delivered. If it cannot then the claim succeeds.


In my submission it must be the second approach that is correct. To deal with the issues otherwise than in that way would be to ignore the statutory framework that sets out how the standard of “satisfactory quality” is established. Section 9 includes the catch-all that “all the other relevant circumstances” are to be taken account of. That provision alone, in my submission, disproves any theory that there are no circumstances in which a defect in a motorcycle – or any goods – in the first six months after delivery must be a breach of the implied term.


A claimant, then, could and should exhibit evidence going to the factors identified under Section 9. This will necessitate expert evidence in all but the very simplest of cases. That will then both establish the benchmark of satisfactory quality against which the goods can be compared, and can prove a lack of conformity with the requirement for goods to be satisfactory quality by reference to that benchmark. Only then does it fall to the retailer to prove that the goods did in fact conform at the point of delivery.


Conclusion


Quite simply: the burden of proof is upon the Claimant to prove that goods do not conform with a contract because they are not of satisfactory quality. If proven it is then for the Defendant to prove that the goods conformed with the contract at the date of delivery.


It is not enough for a consumer to simply assert that goods do not conform with a contract and then assert that it is for the retailer to prove that they did. The consumer must still go on to prove that they did not conform, and that will probably require expert evidence. When the issue is one of whether the goods were of satisfactory quality, it is still incumbent upon the court to establish the standard of satisfactory quality in accordance with the evidence, and only then can it determine whether there has been a failure to conform with that standard. In simple cases the obvious answer might be right one, but not always. If there is any real dispute over what the standard of satisfactory quality is then that issue must be dealt with first because only then can a Claimant prove that the standard was not met. But it remains true that the burden of proof in a claim under the Consumer Rights Act 2015 rests on the Claimant to begin with and then moves to the Defendant under Section 19(14) if the cause of action arises within the first six months after delivery.


If there is any doubt that this is the correct approach, then at the date of publishing there is a single case that appears relevant. It is the judgment of HHJ Godsmark QC in Dr William Van Gordon v Volkswagen Financial Services (UK) Ltd (t/a Audi Finance), (Unreported, Nottingham County Court, 30th April 2019). The learned judge’s findings begin at Paragraph 22 with findings of fact in relation to the Claimant’s case that a £55,000 car was not of satisfactory quality, and it appears no positive case was advanced that the goods were of satisfactory quality at the time of delivery. This case is not binding, but in my submission it will be persuasive.