Ticket resellers win tribunal case over action taken by trading standards team

Four ticket resellers have won a case in the First-Tier Tribunal, which ruled that North Yorkshire County Council took action out of time.

The case of Worldwide Tickets Ltd & Ors v North Yorkshire County Council (secondary ticketing) [2018] UKFTT PR_2018_0066 (GRC) was the first of its kind under sections 90 to 95 of the Consumer Rights Act 2015 to be heard by the tribunal.

Worldwide Tickets, Gary Harvey, Alan Gambin and Black Sync were all served a maximum £5,000 penalty for breaches found in test purchases conducted in August 2017 by the Competition and Markets Authority.

North Yorkshire trading standards hosts the National Trading Standards e-Crime Team, which takes action in such cases.

Judge Alison McKenna noted all four appellants accepted they had breached the secondary ticketing rules but challenged the penalties on grounds of procedural fairness and that the sums involved were too high. 

The judge heard that North Yorkshire had had evidence of the breaches from the CMA in August 2017 but had taken no action until February 2018 when officers made a formal request for information.

Giving her ruling Judge McKenna said: “I am troubled by a number of issues. 

“First, I am troubled that [North Yorkshire] received clear evidence…in August 2017 but took no steps in relation to that evidence until the following February. 

“I completely understand that NYCC was then engaged in the work necessary to establish procedures for imposing penalties under the 2015 Act, but it seems to me that, if it had decided not to serve Notices of Intent within six months of receiving the August 2017 schedule, it should have undertaken fresh test purchases before deciding how to proceed on the basis of its own evidence.”

She was also “troubled” that the council used a deliberate ploy to circumvent the statutory time limit for taking action. 

“It is of course unpalatable to allow appeals to succeed in circumstances where the appellants admit that they breached the relevant statutory provisions,” Judge McKenna said.

“Nevertheless, Parliament clearly intended for there to be a time limit of six months only between an enforcement authority having sufficient evidence of a breach and the service of the Notice of Intent in respect of that breach.”

She also criticised North Yorkshire for imposing the maximum £5,000 penalty based on previous re-selling activities by the four appellants.

“I am not presently persuaded that there is power for it to ‘take into consideration’ any other historic breaches, especially where these had not been notified to the person on whom the Notice of Intent was served," the judge said.

“There had been no due process of fact-finding by NYCC in respect of those matters, and the information may of course have been disputed by the appellants if they had been aware of it. 

“I doubt that it would be ever be fair for an enforcement authority to set the level of a financial penalty with reference to undisclosed information, even if the statutory scheme did clearly permit them to have regard to the trader’s history.”

Mark Smulian

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