Part 3: Enforcement of consumer protection law Powers of court on application under section 153 Section 156: Enforcement orders and undertakings
This section sets out that where the court considers that the respondent to an application for an enforcement order has engaged, is engaging in or is likely to engage in an infringing practice, or is an accessory to an infringing practice, it may either make an enforcement order against, or accept an undertaking from, the infringer or an accessory (for the purpose of these notes, the "enforcement subject") (subsections (1) and (2)). This section restates, simplifies and updates section 217 of the Enterprise Act 2002.
	In considering whether to exercise its discretion to make an enforcement order, the court must have regard to whether the enforcement subject has failed to comply with any undertaking given under section 163 or section 185 in respect of the infringing practice(subsection (3)). Failure to comply with an undertaking may be relevant to the question of whether an enforcement order should be made (rather than another undertaking accepted). However, there is no requirement for an undertaking to have been breached before an order can be granted.
	An enforcement order must set out the nature of the infringing practice (e.g. past, ongoing or likely) and give directions to the enforcement subject in order to achieve compliance. The order must direct the infringer to not continue or repeat the infringing practice. The order must direct any accessory to not consent or connive in the infringing practice. The order must direct the enforcement subject (infringer and accessory) to not engage in the infringing practice in the course of their business or another business, and to not consent or connive in the carrying out of the infringing practice by a body corporate with which they have a special relationship (subsections (4) and (6)). The underlying policy intent is to prevent, for example, a sole trader from evading the scope of an enforcement order by setting up a company to operate the same business and continue the infringing practices.
	In addition, the court may order the enforcement subject to publish at their expense its order (in full or in part) and/or a corrective statement in such form and manner as deemed adequate to publicly correct any information provided to consumers and the general public (subsections (8) and (10)). This discretionary power may be used, for example, in respect of an advert that has been found to be misleading, to prevent further distorting consumers’ purchasing decisions based on the misleading contents of the advert. Whether or not the court exercises this power, enforcers are able to publish the terms of court orders and undertakings given to the court (see below).
	As an alternative to making an enforcement order, the court may accept an undertaking from the enforcement subject (subsection (2), paragraph (b)). The undertaking may cover the same compliance requirements as in an order or may be to take such steps as the court believes will achieve compliance (subsection (5)). The court may also accept a further undertaking from the enforcement subject to publish at their expense the terms of the undertaking (in full or in part) or a corrective statement (subsection (9)).
	Where the court accepts an undertaking under this section, it may vary the undertaking if it considers that would achieve compliance or release the undertaking if it is no longer needed (for example, if the original compliance concerns no longer apply or the enforcement subject’s business model has changed such that the undertakings are no longer needed) (subsection 11)). It is open to enforcement subjects who have given the undertakings to seek their release, but this could be done at the court’s own initiative too.