Unfair Terms in Consumer Contracts - An Update with Keith Markham

Introduction

Drafting terms for trader to consumer contracts is subject to a series of well-established, albeit complicated, rules described in the Consumer Rights Act 2015 (‘CRA’). These rules set out a test for determining fairness as well as a series of exemptions and additional considerations. Failure to comply can lead to enforcement action by the Competition and Markets Authority (‘CMA’) and a declaration by the courts that a term is unenforceable.

Despite these dangers, many traders are still largely unaware of the more detailed provisions of the CRA and may well be in breach.

The Digital Markets, Competition and Consumer Bill (‘the Bill’) proposes to introduce fining powers for serious breaches of the CRA including in the area of unfair terms. The maximum amount proposed is up to 10% of total annual turnover or £300,000 whichever is higher. Consequently, traders need to ensure that they are compliant with the rules in the CRA before the Bill comes into force some time in 2024.

This webinar summarises the key provisions of the CRA, the relevant guidance of the CMA and also reviews the recent decision of the High Court in the case of Glaser v Atay [2023].

What You Will Learn

This webinar will cover the following:

• Summary of the ‘fairness’ test
• The core terms exemption
• The meaning of ‘prominent and transparent’
• Summary of relevant case law
• CMA guidance on terms that are likely to be unfair
• Enforcement powers contained in the Bill

This webinar was recorded on 28th November 2023