It was possible to prosecute more than one person or entity for the same alleged offence of engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008.

The Court of Appeal (Criminal Division) so held when dismissing an appeal by the defendant company, Scottish and Southern Energy plc (“PLC”), against its conviction on 10 May 2011 at the Crown Court at Guildford, before Judge Critchlow and a jury, of engaging in a misleading commercial practice contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008.

A door-to-door salesman who was employed and trained by SSE Energy Supply Ltd (“LTD”), called on people in a no cold-calling zone and delivered an energy script which was likely to deceive the average consumer. The matter was referred to Surrey Trading Standards who commenced proceedings against the defendant holding company, PLC, which contended that the correct corporate defendant should have been LTD, a subsidiary trading company, because it employed and trained the salesman. The judge rejected that submission and the defendant company appealed, inter alia, against the ruling.

DAVIS LJ said, in the reserved judgment of the court, that the issue was not whether PLC as opposed to LTD was the “trader” for the purposes of the 2008 Regulations but whether PLC was capable of being a trader for the purposes of the 2008 Regulations. The very wide definition of trader and of “commercial practice” demonstrated that it was possible to prosecute more than one person or entity for the same alleged offence under the 2008 Regulations. The provisions of regulation 16(2) contemplated that both X and Y could be traders in relation to the same activity. The salesman acted on behalf of LTD, who employed and trained him and on behalf of Southern Electric Gas Ltd. Both companies were amenable to prosecution within the prescribed time limits. The fact that LTD could have been prosecuted as a trader did not mean that PLC could not have been prosecuted. The fact that PLC was a holding company and not a trading company did not necessarily mean that it could not be a trader within the meaning of the 2008 Regulations, nor did it mean that it could not have a business. There was evidence that training was done with the involvement of and under the ultimate supervision and control of PLC, even if acting in conjunction with LTD and even if details were left to the trading subsidiary. PLC was capable of being a trader and there was no reason why, for the purpose of the 2008 Regulations, LTD could not itself be taken as acting on behalf of PLC as well as on its own behalf. It was too narrow an approach to the 2008 Regulations to say that because the sales force were directly employed and trained by LTD there could not be any designation of PLC as trader under the 2008 Regulations. “Trader” for the purposes of the 2008 Regulations extended to any person who in relation to a commercial practice was acting for purposes relating to his business. The words “any”, “in relation to”, “acting” and “relating to” were all words of width and elasticity. The definition of commercial practice was also broadly framed and amply sufficient to cover involvement in or supervision or control of training as being directly connected with the promotion, sale or supply of a product. The definition of commercial practice carefully avoided saying that the promotion or sale or supply had to be made by the trader itself. The judge’s ruling had been justified and gave effect to the broad wording of and purposive approach which needed to be applied to the 2008 Regulations.