Page 31 - Misconduct a Reference for Race Officials

To materially distort the economic behaviour of the average consumer means to
impair the typical consumer’s ability to make an informed decision causing him to
take a transactional decision that he would not have taken otherwise.

These Regulations were enacted to implement the EU Unfair Commercial
Practices Directive, which is designed to protect consumers from unfair practices
engaged in by traders and their agents or employees. Commission of an unfair
commercial practice constitutes one or more of a number of strict liability criminal
offences if the practice was engaged in knowingly or recklessly.

The OFT treats with suspicion a term that changes the normal position as
provided by the general law. For example, the OFT considers that a term that
purports to exclude liability for personal injury or death caused by negligence that
would be unenforceable under the Unfair Contract Terms Act 1977 might also be
misleading and potentially actionable as an unfair commercial practice.
Expressions such as “so far the law permits” or a partial contradiction such as
“statutory rights are not affected” are also considered objectionable as being
unclear as to their practical effect to those without legal knowledge.

Application
Generally if an organiser is an unincorporated association then, in respect of the
relationships between each and every member, it will not be carrying on a
business. In respect of any arrangements with non-members, however, it is likely
to be acting as a business such as to engage the 1977 Act and the 1999
Regulations.

Generally if a membership organisation is incorporated then, in respect of the
contracts of membership, the nature of the organiser will have to be carefully
considered. Whilst incorporation does not automatically equate to a business
operation, it is more likely to be the case than with an unincorporated
association. A company limited by shares is much more likely to be considered a
business than is a company limited by guarantee.

Generally if an organiser is incorporated then, in respect of any contracts with
third parties, it will be acting as a business such as to engage the 1977 Act and
the 1999 Regulations.

When considering the issue of whether or not it is acting as a business, an
organiser will have to consider the particular activity and be very aware that a
one off event involving third parties is likely to be a business transaction even if

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