Can inadequate performances of a contractual obligation fixed in time be repeated?

Question

Meet Bob. Bob purchased a return train ticket to travel from Bristol to Reading by a train at 15:22 on Friday 23/09/22, and to return a week later, for £105.

Bob arrived at the station platform at 15:18 to embark his train, but only to be informed by the platform attendant that for some unknown reason, his train (along with the one scheduled at the same time on the day prior) had actually left at 15:15, despite being scheduled for 15:22.

Bob went to the train operator's service counter where the operator's representative unequivocally apologized for the issue and taking full responsibility, issued him a "travel authorization" that would allow him to board any reading-bound trains that day via any route. Bob then waited for about an hour and was over an hour later arriving in reading than planned, causing him to be very late to an event which he had paid £25 for a ticket to attend, which caused him embarrassment.

Meet Charles. Charles paid a lawyer £150 for a consultation and to submit some paperwork for a deadline that was coming up in a few weeks, both components of which services were explicitly agreed to be covered by the payment of £150. They have their consultation in which Charles rigourously explains the entire situation to the lawyer, who tells him to send over relevant materials and to "leave it with her". More than 6 months later, she then still hasn't gotten back to Charles at all, despite him giving an email to follow up and a call to her office whose receptionist assured him she would follow up, both before the relevant several-weeks deadline.

Bob has been advised that the first remedy under the consumer rights act is a repeat performance, as Charles has also been so advised.

For Bob, how can the travel authorization to travel more than an hour later than he had purchased his ticket (and so contracted with the rail operator) for, so is that truly an adequate performance at all, much less a repeat performance, of the operator's contractual obligations?

For Charles, who was advised that under the CRA he is to firstly give the other party an opportunity for repeat performance, but how can there be any if the relevant deadline has already long passed and he indeed had to find another lawyer to deal with the issue?

What are Bob's and Charles's respective positions?

Answer 1

The definition of the right to repeat performance is found at Section 55 of the Consumer Rights Act 2015. The reason you've been told this is the "first remedy" is because there is also a right to price reduction, but Section 56(3) states:

A consumer who has [the right to price reduction] and the right to require repeat performance is only entitled to a price reduction in one of these situations - (a) because of section 55(3) the consumer cannot require repeat performance; or (b) the consumer has required repeat performance, but the trader is in breach of the requirement of section 55(2)(a) to do it within a reasonable time and without significant inconvenience to the consumer.

However, there is a misunderstanding here. It's important to note a couple of things about these rights.

1. They only apply in relation to two specific implied terms of the contract

The rights themselves are found at Section 54(3) which provides:

If the service does not conform to the contract, the consumer's rights (and the provisions about them and when they are available) are — (a) the right to require repeat performance (see section 55); (b) the right to a price reduction (see section 56).

But, the phrase "does not conform to the contract" has a specific meaning found at Section 54(2):

In this section and section 55 a reference to a service conforming to a contract is a reference to - (a) the service being performed in accordance with section 49, or (b) the service conforming to a term that section 50 requires to be treated as included in the contract and that relates to the performance of the service.

Section 49 and Section 50 imply respectively the following terms in consumer contracts for the supply of services:

49(1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.

50(1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if - (a) it is taken into account by the consumer when deciding to enter into the contract, or (b) it is taken into account by the consumer when making any decision about the service after entering into the contract.

So, the right to repeat performance and the right to price reduction are only applicable where these implied terms have been breached.

2. They are in addition to, not in replacement of the usual contractual remedies

This rule is found at Sections 54(6) and 54(7):

(6) This section and sections 55 and 56 do not prevent the consumer seeking other remedies for a breach of a term to which any of subsections (3) to (5) applies, instead of or in addition to a remedy referred to there (but not so as to recover twice for the same loss).

(7) Those other remedies include any of the following that is open to the consumer in the circumstances — (a) claiming damages; (b) seeking to recover money paid where the consideration for payment of the money has failed; (c) seeking specific performance; (d) seeking an order for specific implement; (e) relying on the breach against a claim by the trader under the contract; (f) exercising a right to treat the contract as at an end.

To put it another way, you are never any worse off by having the right to repeat performance than you would have been if you did not have that right. If another remedy would have been available to you then it still is. So, while the right to repeat performance might mean that you are prevented from claiming the Consumer Rights Act right to price reduction (due to Section 56(3)), you may still be able to recover money via other remedies such as damages, which are not derived from the Consumer Rights Act.

The main reason that the right to repeat performance exists is that the general rule for breach of contract is to award damages where damages suffice and to only award specific performance where there is a compelling reason to do so (e.g. the good or service is unique such as is the case with real property). Repeat performance is a subset of specific performance, so the existence of this rule essentially acts as an exception to the general rule for consumers.

Answer 2

Consumer Rights Act 2015 section 55 Right to repeat performance

(3) The consumer cannot require repeat performance if completing performance of the service in conformity with the contract is impossible.

Also:

(4) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of—

(a) the nature of the service, and

(b) the purpose for which the service was to be performed.