UK: A ‘Consumer Duty' For The UK Courts – An Actionable Proposal?

Last Updated: 4 June 2019
Article by Gordon Downie

Andrew Tyrie has proposed that the UK courts – as well as the CMA itself – be made subject to a new statutory consumer duty. What are the ‘rule of law’ concerns raised by the proposal and how (to some extent) might they be addressed in practice?

One of the central recommendations made by CMA Chairman, Andrew Tyrie, for the reform the UK's competition and consumer law regime is to place, "a new statutory duty on the CMA, and the courts, to treat the interests of consumers, and their protection from detriment, as paramount" (emphasis added).

What would a ‘consumer duty’ for the courts look like?

In describing the scope of the proposed new judicial duty, Lord Tyrie suggests that it would, "influence the work of the courts charged with applying competition and consumer protection laws, and with reviewing the CMA's decisions".  He continues that, "The duty would ensure that the interests of consumers – and what they stand to gain and lose – would be at the forefront of the courts' consideration, decisions and interpretation of the law. The conduct of the CMA would be subject to appropriate judicial scrutiny with that aim in mind. It would therefore embed a consistent purpose at all stages of the UK competition regime".

Lord Tyrie's letter provides four specific examples of likely implications of the new judicial duty:

  • Review of interim remedies: in the expectation that the consumer duty would lead to more interim intervention by the CMA, were such interventions challenged, the duty would imply a need for the court to give particular weight to the protection of the consumer interest on an interim basis.
  • Interim suspension of infringement decisions: the application of the duty would 'raise the bar' for those seeking to set aside decisions imposing continuing remedies and would likely require strong reasons why the courts would allow (on an interim basis) the continuance of practices which have been found to be illegal by the CMA.
  • Review of new 'markets' remedies: were the court to be called upon to review the imposition of final remedies by the CMA using its proposed new powers to investigate and remedy consumer detriment, the duty would require the court to take account of the consumer interest when reviewing the legality of such remedies.
  • Case management of appeals: the duty (along with other reform proposals) would enable the court to narrow the points of challenge on which it needs to hear oral argument or evidence, and lead it to afford a "margin of appreciation" to the CMA's findings of fact and analysis following a detailed investigation (provided that it had been properly conducted).

How to square with ‘rule of law’ concerns?

Without yet knowing how the new judicial duty would be framed, there are some obvious 'rule of law' concerns with these examples.  Take, for instance, the review of 'markets' remedies; the suggestion is that the consumer interest should be taken into account when reviewing "legality".  The implication of that could be some form of 'ends justifying the means' approach in terms of which legality can somehow be traded off against, or balanced with, the consumer interest.  Equally, looking at the case management of appeals, it is not at all obvious how a court which is seeking to do justice between the parties to an appeal, could properly use the consumer interest as a test for refusing otherwise legitimate grounds of challenge.

The idea that the courts should be subject to such a statutory duty seems to raise quite profound legal and constitutional questions.  It is one thing to adjust the mandate of a statutory body such as the CMA by re-configuring its existing statutory duties.  It is quite another to limit or direct the courts in the exercise of their fundamental role as guardians of the rule of law, even if that is to be done in the interests of consumers. 

A ‘standing in the shoes’ duty as a workable approach?

However, there would appear to be at least one sense in which a consumer duty could potentially be applied to the court without giving rise to these sorts of concerns; this would be via a statutory requirement for the court to 'stand in the shoes' of the CMA when determining a question before it.  This is something for which there is already precedent in the regulated utilities context, specifically when the CMA itself is called upon to determine appeals from decisions of the relevant regulator.

Using the format of those existing utilities statues (and paraphrasing for that purpose s.11E of the Electricity Act 1989), a 'standing in the shoes' provision which was designed to be used where a CMA decision was the subject of an appeal to the court might look something like this:

” (1) In determining an appeal the [court] must have regard, to the same extent as is required of the [CMA], to the matters to which the [CMA] must have regard [… in arriving at its decision …]

(2) In determining the appeal the [court] —

  • may have regard to any matter to which the [CMA] was not able to have regard in relation to the decision which is the subject of the appeal; but
  • must not, in the exercise of that power, have regard to any matter to which the [CMA] would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.”

Bearing in mind that, in this scenario, the CMA's own decision-making framework would have been altered so as to give greater priority or centrality to the consumer interest, this sort of 'standing in the shoes' provision might well be expected to align (or better to align) the perspective of the court with that of the CMA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions