Frustrated by Trading Standards’ failure to take action over faulty Whirlpool tumble dryers that caused a number of fires across the UK, the in-house legal team at Which? decided to step in and launch a judicial review. Kate Wellington, head of legal operations at Which?, explains how her team used the legal process to secure significant change for millions of consumers.
Briefly, why did you decide to launch a judicial review?
We were concerned about a series of fires that had broken out in homes across the country, caused by faulty tumble dryers sold under various Whirlpool brands. For nearly a year, we had been pushing Whirlpool to do more to help affected consumers, but with limited success.
Peterborough Trading Standards was the regulator dealing with the matter. Following a devastating blaze in a London tower block that was caused by one of the faulty dryers, we expected to see Trading Standards step up its involvement, but again we were disappointed. Our pre-action correspondence with Trading Standards failed to give us confidence that anything would change in the absence of a formal challenge, so we applied for judicial review of its decisions relating to Whirlpool.
We also believed that Trading Standards’ handling of this case exemplified wider problems with the current product safety system, including the inability of local Trading Standards branches to deal with ‘big business’ as an effective enforcer. In particular, we had serious concerns about the way that Peterborough Trading Standards characterised its relationship with the companies it regulated. We hoped our application for judicial review would clarify the role and obligations of Trading Standards as a key enforcer of consumer rights.
What was the result?
After we filed our application for judicial review, Peterborough Trading Standards was quick to take action against Whirlpool, issuing two enforcement notices. Whirlpool consequently changed the safety advice relating to its fire-risk dryers and Which? was able to give more tangible advice to consumers on how to effect a repair and how to tell if a machine was faulty.
More broadly, we opened up a public conversation about the way that product safety laws are enforced across the country. In 2018, the Business, Energy and Industrial Strategy Select Committee published a report warning of flaws in the system and calling for companies like Whirlpool to do more. The report heavily referenced Which?’s evidence, including learnings from our judicial review. A new Office of Product Safety and Standards has now been created, and it remains to be seen whether a full-scale overhaul of the current enforcement landscape will be forthcoming.
Was it the first time you had attempted anything of this nature? Did you need buy-in?
This was the second time that Which? had filed judicial review proceedings in order to protect the consumer interest. However, it was our first judicial review in over a decade, so we needed to ensure that all internal stakeholders were fully onboard.
Ultimately, it is the Which? Council of Trustees that oversees our organisation’s activities. I had already implemented a framework to assist the Council in considering whether proposed legal interventions were necessary and appropriate on a case-by-case basis (dealing with factors such as impact, viability, risk and budget). This meant that our leaders were already familiar with the concept of using legal actions to achieve change for consumers, and it was simply a matter of demonstrating the very clear case for legal intervention on this issue.
What practical and strategic skills did you use?
Before moving in-house, I was a private practice litigator, so I was comfortable handling the day-to-day practical and strategic elements of the judicial review while instructing a barrister to draft the application itself. This allowed my in-house team to retain control and also to run the matter on a lean budget.
One of the senior lawyers in my team had a background in politics, so was highly adept at handling the public affairs aspects of the case, working closely with our communications teams to get the messaging spot on.
How important was it to communicate to the public what you were doing?
Good communication was essential, particularly because some of the concepts involved were very legalistic and nuanced. In addition, we had to explain why the financial challenges faced by Trading Standards were not a sufficient answer to the issues we were raising.
We were fortunate enough to have the support of our in-house campaigns, external affairs and press teams. This helped us to articulate our message in a way that resonated with non-lawyers, including consumers, MPs and government officials. We were also able to contextualise our legal action as part of a wider Which? campaign against dangerous products, which has over 100,000 active supporters.
Did it change the business’s perception of Legal’s role?
This case saw the in-house legal team leading the way in pursuing Which?’s mission: not as a support function for another team’s project, but as proactive project leaders in our own right. Assisted by the media attention and political interest that our judicial review received, we were noticed by both internal and external stakeholders for pursuing ambitious legal campaigning in a measured, constructive and thoughtful way.