Wednesday, 5 August 2009

UK website disclaimers will breed like rabbits

Patchett & Anor v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717 (15 July 2009) has already been well covered e.g. at SCL and Out-Law - see those links or the transcript for the full facts. (Claimants hired swimming pool builder thinking, based on the trade association SPATA website, that they'd be covered if the builder went bust, but they weren't covered, and the Court of Appeal said they couldn't successfully sue SPATA.)

In brief, it'll be easier for website owners to point to disclaimers and the like on their sites to escape or at least cut down their liability for statements on their webpages which visitors rely on, e.g. if the statement might be misleading or wrong though negligence.

Just have a clear prominent statement that visitors must make further enquiries (like, ask for a hard copy information pack from you), or make their own enquiries, and it seems that you'll be sorted.

Personally, I think Out-Law's analysis is spot on and that the result is wrong - people just don't use web sites in the way that the majority of their Lordships seem to think they do. Who's going to go through all the pages of a site carefully, really? Or realise that there's additional vital info that's not on the site? I agree with Struan Robertson of Out-Law:

"SPATA claimed that its members are backed by insurance and Crown was identified as a member. Given that information, I think it's incorrect to suggest that most users would investigate further (a point that Lady Justice Smith made in her dissenting judgment)."

While the case is good news for web sites, it's not so good for website users, and goes against some moves to try to protect consumers better, e.g. the Information Commissioner's guidance on privacy notices which, while in a different vein, does try to encourage websites to communicate certain important information proactively to the public.

In this case, "With SPATA full members you're protected, with affiliate members you aren't, and here are the separate lists of both types of members" should I think have been clearly set out on the site - but it wasn't, and the defendants still escaped liability just because the claimants didn't ask for a hard copy information pack with fuller information which was said to be available.

I don't know if warning notices will work in the case of mistakenly low prices being advertised though, as with Dell in Taiwan.

Does anyone know if Patchett is going to be appealed?

 Warning: nothing in this blog is intended to be legal advice. Seek complete information via the links given. Take specific advice on your own position. 

Tada - bye bye duty of care!



(That was, of course, a joke.)

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