6th January 2022

The Enterprise Act: A comedy of errors?

When Kingston Council Trading Standards brought an Enterprise Act Order against a notorious rogue trader, little did they know that they were about to embark on a tangled and complex drama worthy of Shakespeare.


By Iain Bailey
Environmental Protection Officer - Trading Standards at Kingston & Sutton Regulatory Services
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Slater had a history of previous convictions and contempt of Court for similar matters
Whilst attending Court was essential travel, few elderly or vulnerable victims were willing to physically attend
Far from being fast-track, the entire process was painfully slow

In July 2017, James Slater was trading as Response Roofing. He had a rather long history of fraud offences and was well known to trading standards across the South East of England, with 97 complaints against him received by the Royal Borough of Kingston Council between 1998 and 2017. He cold-called residents, usually elderly and retired individuals, and offered to do work on their roof or guttering.

The common theme of taking money up-front and either not doing any work, not finishing work or escalating work from a small job to a much larger one, ran throughout all of the complaints.

His victims reported having been left with roof problems and further damage due to rain ingress caused by unfinished or poor work.

In cases where his customers were offered refunds, these were not usually paid as promised. Continuing complaints indicated alleged behaviour causing consumer detriment, namely that Slater had committed breaches of the Consumer Contracts Regulations 2013 (CCRs), by failing to reimburse monies owed; the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), by engaging in unfair commercial practices; and the Supply of Goods and Services Act 1982, by taking too long to carry out work.

Measure for Measure

Having reviewed Slater’s history and the type of complaints being received, we noted that consumers tended to complain to Citizens Advice only after a period of time had passed, having been strung along with promises of remedial work or refunds which then did not happen.

This, along with necessary subsequent repairs done by other traders, meant that evidence of the poor quality of workmanship was often not available. Timely expert examination was rarely possible and expensive to fund, and the previous Court penalties awarded for similar criminal prosecutions were usually low fines.

Previous criminal prosecutions appeared not to be a deterrent. A decision was made to start civil Enterprise Act action against Slater following a previous Office of Fair Trading action that had resulted in his only custodial sentence for consumer protection offences.

We started formal engagement under the Enterprise Act on 20 March 2017. This was done by way of an extended engagement over six months. Meetings were held with Slater where matters of concern were discussed and action plans to improve trading practices and paperwork were put forward.

On 26 July 2017, Slater gave a signed voluntary assurance in relation to his trading practices under the Enterprise Act. During this lengthy engagement process we received only two new complaints. Slater requested continuing meetings after the conclusion of the engagement but failed to attend the next scheduled meeting. Between July 2017, when Slater gave his signed assurance to improve his trading practices, and April 2018, we received a further 15 complaints involving consumer detriment of approximately £43,000 (this included four unsatisfied County Court Judgements). After our engagements stopped, Slater’s behaviour appeared to have become worse. He had also failed to address the historical consumer complaints that resulted in the Enterprise Act engagement commencing.

A draft report was submitted to instigate formal action in April 2018. Our legal service provider advised that given the number of continued complaints, we could proceed straight to an Enforcement Order application without further consultation or a formal undertaking.

The Competition and Markets Authority (CMA) was notified of the engagement process and our intention to seek an Enforcement Order as required by section 219(6) of the Enterprise Act by way of the Sanctions Information Database (SIDs) system on the National Anti-Fraud Network (NAFN). Slater was flagged on
the Citizens Advice Consumer Service System so every time we received a complaint it came through as a referral, and consumers were sent a standard victim questionnaire that allowed us to quickly gather essential information.

We sought advice from our usual Process Servers for service of the Issued Application Bundle and provided them with some information regarding difficulties accessing the traveller site where Slater lived. On 13 July a bundle was served by placing it on the ground outside Slater’s pitch. Slater rang our solicitor and confirmed receipt of the bundle, and gave his assurances he would repay all the victims as he wanted to avoid Court action.

Slater continued to offend however, and we chased the Court as we still had not heard back about a hearing date by November 2018. We began to have some concerns about the so-called ‘fast-track’ resolution the Enterprise Act was promoted as providing.

A hearing date was finally scheduled for 4 January 2019. Based on the statements, the Judge was satisfied that Slater was a rogue trader who had chosen not to co-operate with the legal process. Critically, Slater – who did not show up to the hearing – was aware of the claims for liquidated damages and did not challenge the figures.

The Judge said he would make an Order along the lines set out in draft handed up to him. The Order required us to carry out personal service on Slater; however, when the service agent attempted to visit he noted that individuals on the site now claimed Slater did not live there, and that several large and aggressive dogs were now loose. Personal service was therefore not possible, so we had to apply for service to be permitted by post. This was done on 8 February.

Slater subsequently confirmed receipt and again made promises to repay customers. On the expectation that these promises would once again fail to be honoured, contact was made with all the victims awarded compensation in the Interim Order with a view to obtaining sworn Affidavits that they had not had
any monies repaid.

The Tempest

An application for Committal for contempt of Court (by breaching the Enforcement Order) was made on 10 June 2019. On 8 July we received an Order from the Court regarding personal service of the committal action and notification of a hearing date of on or after 5 August.

Affidavits were obtained from further victims as a result of more complaints, and these were added to the Committal application. On 23 November we received notification that a trial date had been set for 7 May 2020.

The Judge indicated in the Listing that witnesses should attend. However, by January 2020 the emergence of COVID-19 meant that we would soon be entering a national lockdown, and whilst attending Court was essential travel, few elderly or vulnerable victims were willing to physically attend as a result.

Agreement was reached with Counsel to obtain confirmation from them all that they had not received any of the Court-ordered compensation, and that I would put this into a single sworn Affidavit produced by myself.

On 7 May 2020, the directions hearing occurred in front of HHJ Hellman. Slater attended by telephone. Counsel and our solicitor were surprised by the Judge finding an error in respect of the Penal Notice on the Order. Counsel advised that this was not the usual form within which an Enforcement Order is granted, as a Penal Notice would normally be attached to the Order made and directed as such.

The Court initially took the view that the Committal proceedings would have had no basis on which to proceed. However, rather than determining that the proceedings should be dismissed, given the lack of compliance and the issues related to this matter, the Court gave us the option to withdraw the application, which was promptly taken. This was shocking news to us, as we were not permitted to attend the hearing and had no warning the Court would have any concerns as to our application.

Thereafter the Court focused on the Enforcement Order and resolution of the issues related to a penal notice not being ordered to be attached. The Court ordered that a penal notice be attached, which effectively meant that the Enforcement Order would now take effect from the date of this hearing, meaning that the Defendant had until 7 June 2020 to comply with the Enforcement Order.

Much Ado

This was extremely frustrating news. We had wanted to pursue committal for contempt of Court by breaching the Order, and introduce new witnesses to reflect the ongoing consumer detriment occurring over the extended period of time the Enterprise Act action had taken to progress through the Courts. The news that the complaints received by further victims following the previous Enforcement Order could not be used to seek a breach was also unpalatable to these victims.

On 4 September the Order was received, allowing us to serve the committal application by placing it in Slater’s letterbox – which had previously been repeatedly vandalised or had its number removed by parties unknown. A directions hearing took place on 23 October. At this point, three new victim Affidavits
were obtained from further complaints received after the revised Enforcement Order came into effect.

The next hearing was then delayed due to Court availability until 9 December. The three new witnesses all attended in person – Slater did not. On 16 December the Judge requested we complete a new N600 procedural committal form as it contained all the information that we needed to provide to Slater in one document. This was duly done, and served by post on Slater on 17 December.

On 4 January 2021 we received notice that trial had been relisted for 25 February for one day at the Central London County Court. We made enquiries to see whether the witnesses could attend on this day, and two of the three were willing.

I once again contacted all 13 victims ordered to receive compensation in the original (and subsequently amended Enforcement Order). They all confirmed (again) that they had not had any direct payment from Slater.

The day before the trial date, the Court informed us the Judge had a diary conflict and the matter had been relisted for 90 minutes on 9 April. By that date, according to our complaint data, since the Enterprise Act Order was obtained on 8 May 2019, 26 victims had complained, with £151,200 in consumer detriment.

On 9 April 2021, three-and-a-half years since we started Enterprise Act action, and despite Slater not attending Court, HHJ Lethem was content to find our application proved and to proceed to sentencing in his absence for contempt of Court.

In passing the sentence, HHJ Lethem said this was a serious matter. Slater had a history of previous convictions and contempt of Court for similar matters.

He described him as a sophisticated con-man and fraudster. The Judge then went on to praise two witnesses who attended Court, saying without their courage in being prepared to come and give evidence, to stand up for vulnerable people who are preyed upon by people like Slater, justice could not be progressed. He stressed their courage in attending, particularly during the pandemic.

A nine-month immediate custodial sentence was imposed. We were also awarded our costs. To say we were relieved to get to this point would be an understatement.

On 25 May we were notified that Slater had lodged an Appeal against the decision to commit him to prison. The Appeal was heard in Slater’s absence, and it was dismissed. The warrant remained extant, and Slater was sought for committal to prison. Despite repeated visits to his home address by the Police and numerous telephone calls in which he stated he would surrender himself without delay, Slater avoided being detained until 7 September. After much pressure he eventually surrendered himself to Kingston Police and was remanded in custody.

All’s Well That Ends Well?

When the Enterprise Act came out in 2002, I recall being lectured that civil injunctive action was the future, and that it was a fast-track tool to consumer protection, with ‘Stop Now’ orders available in just a couple of weeks. Authorities who stuck firmly to criminal proceedings were behind the times, and everyone should start using the Enterprise Act. I admit I was sceptical then, and remained so for some time. I don’t think I was alone in that scepticism.

Nearly two decades later I have to say that from personal experience it seems that that bright future still hasn’t caught on, as everyone we worked with, including the Courts and Judges, had little or no experience of progressing such action through to contempt proceedings, and there was little or no relevant case law or precedents. That, and the fact the National Sanctions Database had no way of recording it, means we believe we have truly trodden new ground here.

Far from being fast-track, the entire process was painfully slow, adding complications as new complaints were being received all the time. COVID-19 added a further spanner to the works, making obtaining sworn Affidavits and Court dates and victim attendance extremely difficult, especially when it involved vulnerable victims. Changes to legal procedures half-way through hearings, differences of opinions between different Judges hearing applications, and a lack of any directly relevant case law or precedents, all made it even more painful.

Would we do it again? Or would we go back to criminal proceedings in a similar situation? HHJ Saggerson queried why the matter had not gone down the criminal route. This was a consistent query from the Judges involved, as well as our own counsel. Whichever route we chose, victims were never likely to get any compensation or recover funds lost. However, at least the Order indicated that we applied for such, and those named victims were recognised by the Court as being entitled to such recompense, and that failure to pay it was contempt. Small comfort I know, but better than nothing.

It should be remembered that the Enterprise Act Enforcement Order has no expiry date. Upon his release from HMP Pentonville, should he breach any of the conditions of the Order, Slater will be exposed to us making another application for Committal for contempt. Hopefully, of course, this would be swifter to progress and involve fewer surprises.

 

To read CTSI Lead Officer for Civil Law David Sanders’ views on the Enterprise Act, click here.

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