Cold callers unlikely to go to court

David Quirk MHK

David Quirk MHK

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Telephone cold callers from outside the island are unlikely to be prosecuted despite new legislation aimed at banning such practices.

The admission was made by David Quirk MHK, chairman of the Office of Fair Trading, in a letter to Tynwald members outlining how the Consumer Protection (Amendment) Act would operate.

MHKs voted unanimously to give the bill its second reading in the House of Keys on December 8.

Mr Quirk described it then as an ‘important piece of consumer protection legislation’.

He said it was designed to tackle three types of cold calling: doorstep cold calling, telephone cold calling and what he described as ‘excursion-based’ cold calling.

In his letter to Tynwald members, Mr Quirk said there was no standard procedures as there are no standard cases of cold calling.

He said the maximum penalty was an unlimited fine and two years in prison and the primary purpose of the bill was to persuade traders to stop using doorstep cold calling.

The OFT has no powers of arrest. Its chief inspector and chief officer would take into account the particular circumstances of the case before deciding which enforcement action would be appropriate - prosecution, formal caution, warning letter or no further action. If prosecution is deemed appropriate the matter would be referred to the Attorney General’s chambers for a decision.

But turning to telephone cold calling, Mr Quirk admitted this was a difficult one in terms of enforcement action.

‘There should be no problems initiating proceedings against traders based in the island, he said, but the vast majority of cold calls are made from outside the Isle of Man and in many cases from outside the UK and even outside the EU.

He said: ‘If a resident was cold called by a trader based outside the Isle of Man it is highly unlikely that a prosecution would be seen to be in the public interest even if the OFT could establish who made the call.’

The bill does have a ‘has a sting in the tail’, however – if the consumer enters into a contract as a result of cold calling, the contract will be under Manx law and enforced in Manx courts.

If a trader takes action against a consumer in a jurisdiction outside the Isle of Man, it will be down to the foreign court to decided what weight should be given to Manx consumer protection. The OFT accepted these provisions are not perfect but are the best that can be done in the circumstances.

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