Barbara Gayle, Staff Reporter

Supreme Court Justice Roy Anderson says consumers deserve compensation. - File

Victims of misleading advertisements cannot be compensated by the court because the Fair Competition Act does not give the court the power to do so.

This shortcoming has resulted in Revenue Court Judge Roy Anderson making a special call this month for the Act to be amended.

When the Fair Trading Commission (FTC) takes a case to court, which normally is the consequence of complaints made by victims of misleading ads, the Crown is the sole beneficiary of the fines imposed.

Section 45 of the act must be amended for the benefit of the victims, the judge said.

He made the call when he ordered stage show promoter Errol Bailey to pay $250,000 to the Fair Trading Commission for misleading advertisements.

Claim against Bailey

The FTC filed a claim against Bailey after several patrons complained that although it was advertised that a number of artistes were going to perform at a concert, some of them did not.

Bailey who trades as Foundation Music Showcase had advertised in the print and electronic media that internationally renowned singer Peabo Bryson and local artistes Freddie McGregor, Alton Ellis, the Mighty Diamonds and Chakademus and Pliers were going to perform at a concert on January 6 last year.

The concert was held at the Constant Spring Golf Club but those artistes did not appear.

Bailey said in his defence that he had paid Bryson to attend the concert but Bryson had problems with his back-up band.

He said the Jamaican artistes attended the concert but they did not perform because they wanted more money than contracted.

Justice Anderson found that the advertisements were misleading.

The judge said Bailey did not offer any explanation to the patrons for the artistes' failure to perform at the concert.

"Finally, I make two observations with respect to this matter. In the first place, it would also be appropriate that the error in the reference to section 45 in the act, recognised now for several years, be corrected by the legislature as soon as possible," the judge said.

Incorrect reference

He pointed out that section 47 (1)B made reference to section 45 but the reference should be to section 46.

In his second observation, the judge said, "Here the patrons who have purchased their tickets based on the representations which are, in my view, a term of their contract with the defendant, are still out of pocket. No doubt it would be difficult to quantify the damages to which they are entitled, but it may be useful to consider whether some of the penalty paid to the Crown ought not to be used to compensate these victims."

Justice Anderson also pointed out that the Court of Appeal had similarly called for an amendment to the law so that the victims who filed complaints could benefit.

barbara.gayle@gleanerjm.com