Public Counsel in Landmark Case: Kimone Phillips v Courts (Bdos) Ltd.

Well! Well! Well!

Barry Carrington, Attornet-at-Law, The Original Public Counsel!

Stand up! Raise yuh hand!

Consumers, you have something to shout about and a man to thank for his tireless work as Public Counsel. Though Barry has moved on up, he has left a legacy of cases before the Consumer Claims Tribunal, over a four year period of championing the cause of Consumers; a well kept public secret.

Imagine that Barry took Mrs. Ram before the Tribunal ten times between 2004 & 2005 and won all. Not only that, after the tenth time, Mrs. Ram like she decide that she ain't coming back (brought her to her knees) to the Tribunal because there are no entries with any of her companies since then, so she got to be settling everything before it get there. A serious victory for consumers.

Moreover, just prior to his departure, Barry successfully argued a landmark case fitting for a good send off and for a job well done. This is Case No. 87: Kimone Phillips v Courts (Bdos) Ltd. where the facts of purchase or arrangement are not in dispute since Courts agreed to give a refund. The matter in question is, "What is a refund?"

What makes this a Landmark Case?
First, the Tribunal's record states, "At the commencement of the hearing in this matter, we were alerted to the fact that many of the local commercial enterprises and their representative body, the Barbados Chamber of Commerce and Industry, were anxiously awaiting its outcome. This is not surprising. The hire-purchase transaction, the subject matter of the dispute in this case, is a popular means of the acquisition of consumer durables in Barbados, and the enterprises which engage in such transactions are anxious for an exposition of the impact of the Consumer Guarantees Act 2002."

Second, the findings of the Tribunal States..." We are mindful of the advice of both counsel to the Tribunal that we should not seek to make law and, indeed, we are diametrically opposed to doing such. However, there are, strictly speaking, two senses in which we may speak of making law, and while we are not competent to make law, in the sense of passing a law (constitutionally a matter for Parliament alone); nevertheless, we are called upon in this case to make law in the sense of declaring, for the first time, what the law is in relation to the true nature of a refund after goods have been rejected in a hire-purchase transaction. We do so by seeking to ascertain the intention of Parliament as best we can."

Having only just got the website I will go through it to see if there are any cases which can serve as a precedent for some of the issues raised in this blog. The facts of this particular case are as follows:

The Facts
According to the complaint, Ms Kimone Phillips’s mother, Arlene, purchased on October 27, 2005, one (1) HP DV-1325 LA Notebook on behalf of the Complainant from the Respondent on hire-purchase terms. A deposit of $230.00 was paid immediately and it was agreed in writing that there would be thirty-five (35) further monthly payments of $193.00 and a final payment of $170.91. The total hire-purchase price, inclusive of the Courts Supa-Shield, was $7,155.91.

Sometime during August or September 2006, the laptop computer malfunctioned and, when it was taken to Courts’ Service Centre, Ms. Phillips was informed that the screen needed to be replaced. However, subsequent attempts by Courts to source a screen proved futile and Ms. Phillips was then instructed by the Respondent to return the computer accessories and to choose a replacement notebook.

When she attempted to do this, she was told further that if she took the replacement she had an option of 2 payment plans:(i) to complete the payment of the hire-purchase price over three (3) years; or(ii) to complete the payment in ten (10) months.Neither of these arrangements found favour with Ms. Phillips who then, in her words, “opted for a refund”.

The Respondent agreed to this, but insisted that a sum of only $1967.19 would be refunded out of the total sum paid to that date of $3729.52. The remainder, Courts told her, would be payment for the use she had enjoyed of the computer for the period of its retention.

Unwilling to accept this, Ms. Phillips reported the matter to the Office of Public Counsel where she was advised that “a refund is a refund of any money paid”. All reasonable efforts to obtain redress for her complaint having failed, the matter came on before the Consumer Claims Tribunal for a resolution.

The Decision
After arguments on both sides the Tribunal gave its decision in favour of Ms. Phillips. I leave you to imbibe the decision:

DECISION: It is the decision of the Tribunal that under the Consumers Guarantee Act 2002 there is no difference in the nature of the refund to the consumer on a rejection of goods which have substantially failed to comply with a guarantee whether these goods were acquired by means of hire-purchase or by direct sale.

We so hold for the following reasons in this case:
(i) We accept the statement of Gault on Commercial Law that there is nothing in the Act to suggest that there should be a pro-rating of the refund in hire-purchase transactions when goods are rejected.
(ii) We do not accept that the decision in Stephens v. Chevron Motor Court Ltd. compels us to conclude that the nature of the refund in hire-purchase transactions on the rejection of the goods is identical to that in direct sales transactions.
(iii) It is our view that Parliament had in contemplation the hire-purchase transaction at the time of the passage of the Act, given the definitions of “acquire”, “supplier” and “supply” in the Act and the presence of the provision in section 52 which stipulates a particular method for the assessment of damages in hire-purchase transactions.
(iv) While we recognize that grave injustice might result in certain cases if the literal and plain meaning of the refund provision was to be applied, such cases must from their very nature be rare, given the lapse of time between acquisition and appearance of the defect. This lapse might suffice to cause a loss of the right to reject or to present a difficulty for the consumer in establishing a causal link between the defect and the supply of the goods.
(v) In those cases where the lapse of time is not substantial, it might still be argued, as it was in this case, that the result of a full refund is unfair to the supplier. However, given our earlier stated view that Parliament must have considered the possibility of such a result and chose to abstain from statutory intervention, we would be patently guilty of attempting to do what Parliament was itself loath to do. This is not permitted to us. Parliament will have to be persuaded to change its apparent mind.
(vi) Based on the above, there is no argument which persuades us to deny the clear words of the provision and to hold that a refund in hire-purchase transactions differs in any way from the refund as defined in section 24(2).We ORDER therefore that the Respondent Courts (B’dos) Ltd. refund to the Complainant, Ms. Kimone Phillips, all those sums which she had paid to the Respondent in respect of the hire-purchase of the computer from the date of the transaction.
J. Cumberbatch (Chairman (ag.), Fay Lucas, Antoine Williams.

http://www.commerce.gov.bb/cct/cases02.asp?c=111