Has your wedding venue insisted you use their recommended DJ?
One of the unfortunate aspects of wedding planning is that sometimes the couple can get bullied into doing things they’d rather not by suppliers, and some venues are guilty of this also. There are still venues around that insist on using their DJ or band when booking and as most people have never gone through this before and have developed an emotional attachment to the venue they go ahead with the booking through fear of losing that available date.
There are a few points about this that it is important to know for couples facing this position.
- It borders on something known as “Sharp Practice” but more importantly it can constitute “Restrictive Practice” which is an offence.
- If you book a venue, and they didn’t disclose this information beforehand, then they cannot insist on this as their failure to disclose this may have been a material point concerning your buying decision.
So what steps can you take to prevent it?
The first step is to request from the venue in writing their insistence along with their reason for this. Also, ask the venue’s response to how they will supply your exact requirements because if you want something very specific in regards to entertainment such as an Asian DJ, specialist music genre(s) or a Master of Ceremonies familiar with the traditions of her family origins, etc.
In the majority of cases when this is requested from the venue, they back down and let you use your choice which likely indicates they knew they were acting outside the law.
You are also able to make a complaint to your local Trading Standards office as they can challenge the venue on this practice and again the venue will almost certainly back down.
The following quote provides further information on that:
The importance of competition policy
An Office of Fair Trading case study
Restrictive trade practices
All commerce is based on agreements of one form or another. Some agreements, however, may restrict competition. The most obvious are those involving price fixing and market sharing.
The Restrictive Trade Practices Act covers agreements affecting goods and services. The OFT must be notified of all arrangements, not just formal written agreements, made by two or more parties in business who accept specified restrictions on their freedom to compete. Details are then entered in a public register.
Companies must inform the OFT about agreements containing restrictions on:
- prices or charges;
- terms or conditions of business;
- geographical areas of business;
- people with whom business may take place;
- the quantities or types of goods to be produced;
- the manufacturing process to be used.
Although a large number of restrictive agreements are sent in for registration, the OFT continues to discover agreements which, by accident or design, have not been notified. Businesses may not always recognise that an agreement can restrict freedom to compete. If, however, the Director-General has reason to believe that any harmful agreement has been concealed deliberately, he almost always refers the matter to the Restrictive Practices Court, which strikes down any restrictions it finds against the public interest.
In most agreements, the restrictions are insignificant and do not warrant reference to the Court. In such cases, the Secretary of State is asked to agree that there should not be a reference. In the occasional cases that warrant investigation by the Court, the parties must satisfy the Court that the restrictions in their agreements are in the public interest, using any of the possible grounds laid down in the Act. Otherwise, the restrictions are again struck down by Order of the Court.
The government is proposing to reform competition law with a new Competition Bill. It will, amongst other things, replace the Restrictive Trade Practices Act with a law similar to Article 85 of the Treaty of Rome (see European Union competition law). Restrictive agreements will be prohibited, rather than able to operate until struck down. Parties to such agreements will be liable for a fine unless they receive an exemption from the Director General or successfully appeal to a Tribunal or the High Court. There will also be increased powers to secure information on such agreements.
Why do venues do this in the first place, though?
There are often good reasons for doing so and often it is as a result of a bad experience with a DJ(s) or band(s).
Around ten years ago I use to do many corporate Xmas parties at one particular venue in the City of London. They told me that when some companies used their own DJ, they would often just book someone cheap and so as soon as the meal was finished many guests would leave and the venue would lose a lot of money in bar sales. So they started persuading (although not insisting!) that clients book me as their experience was that their bar takings were always very high when I worked there.
Some venues though do this as an additional way of generating more revenue as they book DJs at £150 to £300 and then charge the couples sometimes 2 or 3 times that figure.
Here is a definition of Sharp Practice:
Sharp Practice http://legal-dictionary.thefreedictionary.com/sharp+practice
n. actions by a lawyer using misleading statements to opposing counsel or the court, denial of oral stipulations (agreements between attorneys) previously made, threats, improper use of process, or tricky and/or dishonourable means barely within the law. A consistent pattern of sharp practice may lead to discipline by the state bar association or by the courts.
And for those with the stomach for it much more information here:
The end of sharp practice?
Date: 08 June 2007
Helen Hart considers the impact of the Unfair Commercial Practices Directive
Traders could find their creativity stifled by the Unfair Commercial Practices Directive 2005/29/EC (the Directive). Is it simply creating more red tape or will it create a level playing field which will prove a benefit for businesses? A recent Times article (27 April 2007) suggested that theatres and promoters would fall foul of the Directive if they used selective quotes from reviews to sell tickets for performances. The view was expressed that if positive-sounding quotes from otherwise negative reviews were used out of context, they would be contrary to the Directive, which outlaws giving information which is likely to mislead the average consumer, even if such information is correct.
Another practice which could fall foul of the Directive is the practice of insurance companies advertising a 14-day money back guarantee if you find a lower price for similar insurance elsewhere when insurance companies must offer a cancellation period. Consequently, selling this as a benefit with the implication that it is an addition to the consumer’s legal rights could fall foul of the Directive in the future.
The new legislation will prohibit certain “sharp practices” throughout the EU, such as unfair advertising, pressure selling and misleading marketing. Also, it sets out certain rules on advertising to children. The aim is to provide EU consumers with the same protection against misleading or aggressive marketing whether they buy from other member states’ markets or their own country.
The concept of maximum harmonisation has caused some controversy but its defenders say it should provide a level playing field for businesses throughout the EU. They claim that businesses will benefit from having a clear set of common EU rules to follow, rather than the current divergent national laws and court case rulings and that consequently businesses should find it easier to trade across the EU. However, it is likely that different member states will interpret and implement the Directive differently, as has been the case with other consumer legislation such as the Distance Selling Directive 97/7/EC, a problem which has been recognised by the European Commission, and as a result, the idea that businesses will find life easier may just be a pipe dream.
Theoretically, at least, the Directive should not impose extra burdens on businesses as it contains only a general prohibition on unfair practices and does not impose any positive duties. Furthermore, as the Directive contains only quite general provisions it should be “future-proof” and cover any sharp practices which emerge in the future.
Business to consumer commercial practices
The Directive regulates unfair business to consumer commercial practices before, during and after a commercial transaction in relation to a product. It does not, therefore, cover businesses’ dealings with other businesses. Nor does it cover any matters of taste and decency, contract law, health and safety, intellectual property rights or hallmarking.
A business to consumer commercial practice is defined in Art 1 of the Directive as:
“…any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers.”
Article 5 of the Directive states that a commercial practice will be unfair if it is contrary to the requirements of professional diligence, a concept which will be underpinned by good faith and honest market practice. Good faith is a significant concept in many European jurisdictions and has been imported into the UK through the Unfair Contract Terms Directive 93/13/EEC and the Commercial Agents Directive 86/653/EEC. Respondents to the first Department of Trade and Industry (DTI) consultation expressed the view that further clarification of the term “professional diligence” would be helpful as it is a new concept to UK law.
Traders will not be able to argue that sharp practices are normal in the industry in which they operate. In addition, they will be expected to follow non-statutory rules of conduct, e.g., the Committee on Advertising Practice Advertising Standards Code (CAP code), where those rules reflect honest market practice. The courts and enforcement bodies will also be expected to take into account the expectations of the consumer in the particular market.
Additionally, a commercial practice will be considered unfair if it, in relation to a particular product, materially distorts, or is likely to distort materially, the economic behaviour of the average consumer whom it reaches, or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
The average consumer
Although the concept of an “average consumer” is not defined in the Directive, the European Court of Justice has developed the definition of the “reasonably well informed and reasonably circumspect” consumer, mainly through trademark cases and in Douwe Egberts NV v Westrom FICS-World BVBA C-239/02  All ER (D) 253 (Jul).
– According to the court, social, linguistic, and cultural factors should be taken into account.
– Requirements and expectations depend on the individual circumstances of the goods or services in question and also whether a product is aimed at the whole EU or just one, or several, member states. The expectations may differ between member states.
The Government consultation found that traders welcomed this definition and the fact that the government would consider it to be similar to the “reasonable man on the Clapham omnibus”. It remains to be seen whether the Advertising Standards Authority (ASA), which tends to base its decisions on the most vulnerable consumer, will adjust its adjudications to follow this test.
Commercial practices which are likely to materially distort the economic behaviour only of vulnerable consumers shall be assessed from the perspective of the average member of that group of vulnerable consumers. “Vulnerable consumers” should be foreseeable by the trader on grounds of mental or physical infirmity, age or credulity.
This is not clearly explained in the Directive but is clear that traders should not be expected to protect vulnerable consumers from every harm arising from their practices. Otherwise, the concept of the average consumer would be undermined. This was a point made during the DTI consultation process. It will be interesting to see how this concept is treated in countries which tend to treat all consumers as potentially vulnerable.
A key question, and one that could be difficult to prove, will be whether the trader’s unfair practice has caused the consumer to purchase a service which they would not have done had it not been for the unfair practice, that is, a “transactional decision” has been taken which otherwise would not have been. A transactional decision could also be deciding not going ahead with a service.
Article 9 sets out the aggressive commercial practices of harassment, coercion and undue influence which will always be unfair. The factors mentioned in Art 9 are for guidance only and do not limit the general definition of an aggressive practice. The Office of Fair Trading has said that government guidance will need to provide detailed guidance on where legitimate practices end and aggressive practices begin.
For six years from 12 June, 2007 Member States may continue to apply national provisions which are more restrictive or prescriptive than the Directive and this would include self-regulatory provisions such as the CAP code. However, after that, harmonisation will need to be complete, which means that the UK law cannot be more draconian than the Directive itself, which could lead to a slight reduction of protection in certain areas. Where there are specific EU rules covering a specific practice, these will take precedence even if more draconian—but these will, of course, apply EU-wide.
Annex 1 to the Directive lists more than 30 practices which are in all circumstances unfair and consequently blacklisted.
- running a prize promotion without awarding prizes;
- including in an advertisement a direct appeal to children to persuade their parent or other adult to buy advertised products from them;
- inertia selling;
- refusing to leave someone’s house when requested;
- making persistent solicitations by telephone, fax, e-mail or another remote channel; or
- falsely stating that the product will be available for a very limited time.
The government is still in discussion about whether these practices should be criminalised to the extent that they are not already and as to what civil sanctions will be imposed.
Organisations and/or people (including competitors) who are regarded under national law as having a “legitimate interest” will be allowed to take proceedings in relation to unfair commercial practices. This could mean organisations such as the Consumers’ Association taking action against rogue traders under the Enterprise Act 2002. During the first DTI consultation, trading standards organisations also stated that they would welcome the powers to bring actions under the Directive.
The UK is fairly consumer-friendly and as such it will be interesting to see what the Directive’s impact on the UK will be, particularly regarding bodies which regulate outside a statutory framework, e.g., ASA in relation to non-broadcast advertising.
Another issue is how it will fit with the current EU review of consumer law. How will the changes foreseen by that review be taken into account when implementing the Directive in the various member states? Will it actually change the behaviour of the less ethical traders or will it simply penalise ethical businesses which slip up from time to time? Some of the questions raised by this article should be resolved by the UK implementation of the Directive, but for the others, we will have to wait for the courts to decide.
Helen Hart is a senior associate at Stevens & Bolton LLP http://www.newlawjournal.co.uk/nlj/content/end-sharp-practice