As I was waiting to pay the bill I asked my guest John Gould, a highly respected and therefore highly expensive leading London lawyer, whether he wanted to leave before me. He smiled and asked, “Why, are you going to do a runner?” referring to those known to restaurateurs, and not necessarily individuals either, who come in, eat, drink and then slip away without paying.
I had spent most of the meal picking Gould’s experienced brain on matters concerning consumer affairs. He has spent the past 25 years dealing with the less savoury aspects of the wine and restaurant business, in particular the important but rather unpleasant issues that only surface from time to time in individual restaurants but generically are a major source of irritation, and often financial cost, to restaurant goers and restaurateurs alike: no shows; spilt wine; reservations that the restaurant has failed to record and seems unwilling to honour; lost coats; damage to clothes; and possible injury as a result of a waiter’s negligence with hot soup, for example.
I had specifically asked Gould to lunch because of a letter I had received from an FT reader who had his £200 suit ruined as a result of a waiter’s spilling mango juice over him during lunch at The Cinnamon Club. Once his cleaners had confirmed this, the reader contacted the restaurant but was offered only the cost of the cleaning (£13.23) plus a ‘gourmet meal’ as compensation. Hurt and insulted, the reader tried to explain to the restaurant’s Operations Manager that he could not wear a complimentary meal but when he got no further satisfaction he took his case to the County Court and secured judgement in his favour. The whole episode lasted four months.
I began by trying to get Gould to talk about any restaurant-goer’s rights but he was quick to dismiss this notion. “English law deals with remedies and not rights, unlike Roman law, and that makes the whole issue extremely vague. A consumer’s rights are useless unless a remedy is feasible but when it comes to a restaurant booking it is a contract of sorts but how meaningful is that? Who is making the booking? The person on the phone, obviously, but does it cover all those who are to be in the party? And what about the many instances when a third party, say someone’s PA, makes the booking on behalf of others? And what are the basic terms of the contract - just to turn up and order? There is no value implied in the contract so equally there is no way for a restaurateur to establish the loss in the event of a no-show.”
Perhaps sensing that my eyes were glazing over at such abstractions, Gould continued in a more positive vein. “There are really two methods of recourse. The first is to take your case to any of the regulatory bodies which govern certain aspects of the restaurant trade, such as Environmental Health, Food Safety and of course the body dealing with the Trade Descriptions Act. This can be the most effective approach but these bodies tend to be most useful when there is a systemic failure rather than in individual cases.”
Gould then cited several examples of where the law had come to the aid of the customer. The occasion when a waiter had approached the host of a table and told him in a loud enough voice for many others to hear that his credit card had been refused led to a £750 award for slander. Another when a receptionist following the management’s strict bar on dogs on hygiene grounds and refused to allow in a blind person’s dog led to a prosecution on the grounds of discrimination. “But the facts have to be clear. One reason McDonald’s was prosecuted successfully in the US but not in the UK for damages resulting from a spilt hot drink was that in the American case the prosecution could prove that it had been served too hot,” Gould added, with the hope that the UK does not follow the American penchant for litigation.
Although customer confusion is not helped by a seeming lack of clarity in the application of the law, Gould explained, “If you leave your coat in an hotel cloakroom and it goes missing then it is the hotelier’s responsibility because of his responsibilities under the Innkeepers’ Act of 1962. But that is not the case with restaurateurs who only have to prove that they took adequate care to look after the item.”
“Secondly, there are those instances such as your reader’s, when an individual, and invariably someone either very wealthy, very determined or both, decides that something has gone so seriously wrong that he has to instigate litigation. The issue really is that invariably the amount of money involved is too small to justify this course of action – even the litigation lawyer’s initial letter may cost £100 – so unless it can be proven that the damage is significant I am not sure how meaningful this course of action can be. Having said that, I am glad that your reader did do what he did because I think the restaurateur behaved stupidly and maybe he won’t do so the next time. His action will only serve to keep standards up.”
But what about the professional claimant, I asked, those who have frequently and often successfully targeted numerous restaurants, often the most prestigious and therefore with the highest reputation at stake, with fictitious dry cleaning bills for Dior suits? “Obviously, the restaurateur must be on his guard but I think that it’s this kind of situation which recognises that it’s only very rarely that the law can resolve these matters. Far more important, in my opinion, are the everyday controllers in the market place - common sense, knowing when something is a genuine error, customer service, which would prevent most confrontations turning ugly and mutual respect for each other’s reputation. The solution really should be the appointment of a restaurant obundsman who could deal with all these issues but sadly the restaurant industry is not coherent enough to fund one and there is not the paper trail to document these everyday events as there is in most other professions.”
But Gould was considerate enough to end with some highly practical advice that if there is anything materially wrong or unacceptable with your meal the best remedy is to do something at the time. “If your main course isn’t hot enough, the wine is an inferior vintage to the one listed, or the service is unbearably slow, then my advice is always, however embarrassing it may be, to confront the manager and strike whatever that element is from the bill. It is driving standards up which will make the market more perfect, not more regulation or legislation.” A comment I never thought I would hear from a lawyer.