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Bait and Switch

Irish consumers have had a right, since 1st May 2007 (the date of the coming into force of the Consumer Protection Act 2007) to sue (for example), a tour operator, or an airline which “overbooks”, not only for breach of contract, but, under Section 74 of the Consumer Protection Act 2007, in tort;

74.- …(2) A consumer who is aggrieved by a prohibited act or practice shall have a right of action for relief by way of damages, including exemplary damages, against the following:

(a) any trader who commits or engages in the prohibited act or practice;

(b) if such trader is a body corporate, any director, manager, secretary or other officer of the trader, or a person who purported to act in any such capacity, who authorised or consented to the doing of the act or the engaging in of the practice.”

“Overbooking” involves the sale of more “product” than a trader can supply (usually on the principle that some consumers will cancel). The Consumer Protection Act 2007 describes the practice in Section 55 (1) (l):

making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);”

Of course, the dispute may eventually turn on whether “an equivalent product” was offered and, if accepted, supplied, but that factual dispute should be readily settled by the experience of the consumer; the consumer need only prove by comparison the discrepancy between the description of what was offered and the description of what was delivered.

A not insignificant element of the right to sue under Section 74 is that the right is not constrained by any arbitration clause in the contract with the consumer. In short, the right to issue proceedings is not precluded by the terms of Section 5 of the Arbitration Act 1980.