The right of redress

The Consumer Affairs Act protects consumers through a set of rights that basically safeguard every purchase made. However, for such rights to have real and practical value, effective mechanisms are indispensable.

Should a problem arise, consumers will need to exert these rights without having to go to court, which is expensive and unsuitable.

Alternative Dispute Resolution (ADR) schemes, also known as out-of-court mechanisms, can practically help consumers resolve disputes with traders. ADR schemes usually use a third party, such as an arbitrator, mediator or an ombudsman, to help reach an amicable settlement between consumers and traders. Compared to going to court these schemes are cheaper, quicker and more informal.

Locally, the ADR scheme that can be used by consumers is the Consumer Claims Tribunal. Through an arbiter, this tribunal can grant us redress and compensation if, after hearing the case, it results that consumer rights have been breached.

Claims before this tribunal can only be submitted after amicable settlement through mediation by the Consumer and Competition Division fails. Only consumers can take their claim before this tribunal, and the claim should be about goods or services bought or hired for personal use.

The main advantages of the Consumer Claims Tribunal are its low fees and informality. Consumers who take their case before the tribunal do not need to hire a lawyer to represent them and the costs involved to lodge the complaint are minimal. The fee to be paid varies according to the value claimed.

While the lowest fee is €9.32 when the claim does not exceed €582.34, the highest fee is €25.62 when the claim is between €2,331.70 and €3,494.06 - the maximum amount a consumer can claim under this tribunal.

If this amount is exceeded, the consumer has to take his case to the Civil Courts. The tribunal may also award to consumers up to €232.94 compensation for moral damages caused by any pain, distress, anxiety and inconvenience. However, it is the responsibility of the consumer and the trader not to waste the time of the tribunal by presenting vexatious or frivolous cases. If this happens the tribunal may order to be paid to the other party a penalty of not more than €116.47.

A claim before the tribunal is made by filling a form known as 'Notice of Claim', which can be obtained from the Registry of the tribunal. Traders who have a claim against them can use the same form to make a counter-claim.

In case of difficulty while completing this form, consumers and traders can seek the assistance of the tribunal's secretary. Once the claim is lodged by the consumer, the trader is notified and offered the possibility to make a counter-claim. At this point the secretary will appoint a date, time and place when the hearing before the arbiter will be heard. These details are then communicated to both parties by post.

At the hearing, both parties are given the possibility to tell their side of the story, and this is done under oath. Either party is hence advised to be well prepared for the hearing so that their case is presented in the best possible way, especially if lawyers are not involved.

Should a lawyer be engaged, one must pay his costs even if the case is won. It is also important to be present for the hearing on time and to bring all evidence concerning the dispute, such as any letters, invoices, bills, sales slips, contracts, photographs, and other similar documentation. Witnesses could also be summoned during these sittings.

It is in the interest of both parties to attend the sitting because if either part fails to attend without giving an acceptable reason, the tribunal may decide the case against the missing party. Whoever wins the case may enforce the tribunal's decision, just like a court judgment.

First, however, the losing party should be given reasonable time to abide by the tribunal's decision. The losing party has the possibility to appeal against the decision. However, appeals are only accepted if the arbiter acted contrary to the rules of natural justice and as a result seriously prejudiced the outcome of the case. More so, appeals can only be made within 20 working days from the date of the tribunal decision.

Furthermore, if the decision of the tribunal or the court of appeal is not honoured within three months of when both parties were informed of the arbiter's or court's decision, such failure is considered an offence against the Consumer Affairs Act, and the offending party is liable on conviction to a fine of not more than €500.

More information about the Consumer Claims Tribunal can be obtained by calling the tribunal's secretary on 2122 7070.

customer@timesofmalta.com

odette.vella@gov.mt

Ms Vella is senior information officer, Consumer and Competition Division.