The Law Commission and the Scottish Law Commission: Unfair Terms in Consumer Contracts: a new approach?


1. The Building Societies Association (BSA) represents mutual lenders and deposit takers in the UK including all 47 UK building societies. Mutual lenders and deposit takers have total assets of over £375 billion and, together with their subsidiaries, hold residential mortgages of £245 billion, 20% of the total outstanding in the UK. They hold more than £250 billion of retail deposits, accounting for 22% of all such deposits in the UK. Mutual deposit takers account for 31% of cash ISA balances. They employ approximately 50,000 full and part-time staff and operate through approximately 2,000 branches.

2. The BSA welcomes the opportunity to respond to the Law Commission’s and Scottish Law Commission’s consultation on unfair terms (the consultation).

General Background

3. The BSA has responded to a number of previous consultations relating, either specifically or generally, to unfair terms, including -

The BSA believes that a long overdue, radical consolidation of consumer law that is strong, clear, and (as far as practicable) future-proofed, would be in the interests not only of consumers and but also of businesses that treat their customers fairly.

4. In OFT v Abbey National & Others [2010] 1 AC 696, the Supreme Court decided that certain contractual terms permitting charges in respect of unauthorised overdrafts were not assessable for unfairness under the relevant Regulations because they were statutorily excluded ‘core terms’.


4. The consultation deals with two fundamental points –

  • whether the law needs amendment following the unauthorised overdraft charges litigation (above), and
  • the possible merger of the Unfair Contract Terms Act 1977 (the 1977 Act) with the Unfair Terns in Consumer Contracts Regulations 1999 (the 1999 Regulations) and certain related matters.

5. The BSA views may be summarised as follows –

  • We broadly agree with the consultation’s recommendation that a ‘price term’,(ie a monetary obligation of the consumer eg a bank charge, should continue to benefit from exemption as a ‘core term’, but only if it is transparent and prominent - with statutory guidance on ‘transparency’ and ‘prominence’. However, it is very important that any unforeseen, detrimental consequences are anticipated and averted – we provide some specific pints relating to BSA members’ products.
  • As long ago as February 2005, the Law Commission proposed that the 1977 Act (a piece of UK legislation that covers exemption clauses ie ‘contractual disclaimers’) should be merged with the 1999 Regulations. The Government has now asked the Law Commission to review its position and the Law Commission stands by its earlier report. The BSA finds it difficult to understand why this obvious (and somewhat minor) piece of simplification was not implemented sooner and we advocate that, in the absence of more radical consolidation, the matter be taken forward without further delay.

The Recommendations

  • Background

6. After a detailed analysis of the law, including recent court judgments, European cases, and European and international experience, the Law Commissions propose, and seek views on, the proposals about ‘price terms’ are set out on pages 102 – 103 of the consultation. Paragraph 3.54 (on page 29) of the consultation states -

Unfair terms legislation assumes that consumers are rational but busy. They do not have the time or resources to plough their way through the many standard form contracts they are given. On the other hand, if consumers are told about the price or the subject matter the legislation assumes that they will take these terms into account when choosing whether to enter into the contract. The terms will be subject to competition and should not be assessable for fairness.”

The BSA believes that the above passage is a fair and accurate representation of the underlying position.

7. The BSA recognises, and agrees with, the list of constraints on the Law Commissions’ investigation, set out in paragraph 8.5. We also acknowledge the problem of very important terms included in ‘small print’. However, it should be remembered that there is often regulatory pressure to include an increasingly large amount of text and additional material, such as health warnings, in ‘prominent’ positions. Greater consensus on what is, and is not, sufficiently important to include prominently in relevant materials would be helpful. The BSA supports the case for certainty put forward at paragraphs 8.11 and 8.12 of the consultation.

8. The BSA broadly supports the proposal that a transparent and prominent price term should be excluded from review, provided the details are right eg on what is ‘prominent’, what constitutes a ‘transparent term’, prominent/transparent to whom? etc. We believe that, in principle, such an approach is preferable – if the questions can be answered - to the uncertainties generated by concepts such as “main” term and “incidental or ancillary” term.

  • Consultation Questions and BSA Responses
The case for reform

10.2 Do consultees agree that:

(1) The current law on which terms should be exempt from the assessment
of fairness under the Unfair Terms Directive is unduly uncertain; and

(2) The UTCCR should be reformed? (8.14)

10.3 We welcome evidence on the effect of the Supreme Court decision in Office of
Fair Trading v Abbey National plc on your organisation, business or consumer
experience. (8.15)

9. As noted above, the BSA agrees that some aspects of the relevant law are uncertain and that – even though subsequent court judgments have reduced some of the uncertainty - a degree of reform would be helpful.

10. We believe that the Law Commissions have identified the key areas of uncertainty. The BSA provided comments about the Judgment in its 2010 response to BIS - www.bsa.org.uk/policy/response/consumer_rights_directive_response.htm.

Price terms

10.4 Do consultees agree that:

(1) A price term should be excluded from review, but only if it is transparent
and prominent?

(2) A price term should be defined as follows: where the consumer buys
goods or services, it means an obligation on the consumer to pay
money; where the consumer sells or supplies goods or services, it
means an obligation on the trader to pay money?

(3) Transparent should be defined as:

(a) in plain, intelligible language;
(b) legible;
(c) readily available to the consumer?

(4) The exclusion from review should not apply to terms on the grey list,
which should include the following:

(a) price escalation clauses;
(b) early termination charges; and
(c) default charges? (8.67)

10.5 Would it be helpful to explain that:

(1) a term is prominent if it was presented in a way that the average
consumer would be aware of the term?

(2) in deciding whether a term is transparent and prominent, the court should
have regard to statutory guidance?

(3) the exemption does not apply to any term which purports to give the
trader discretion to decide the amount of the price after the consumer
has become bound by the contract? (8.68)

10.6 In order to implement the Unfair Terms Directive fully, is it necessary to specify
that even transparent, prominent price terms may be assessed for matters other
than “the adequacy of the price as against the goods or services supplied in
exchange”? (8.69)

11. These are the key consultation questions. We agree with the consultation’s recommendation that a ‘price term’,(ie a monetary obligation of the consumer eg a bank charge, should continue to benefit from exemption as a ‘core term’, but only if it is transparent and prominent - with statutory guidance on ‘transparency’ and ‘prominence’.

12. However, it is very important that any unforeseen, detrimental consequences are anticipated and averted. We believe that the safeguards proposed by the law Commissions constitute reasonable steps designed to reduce the risk of unintended consequences. In particular, we take the view that the proposed definitions of ‘price term’ and ‘transparent’ are sufficiently clear to be effective in practice, and we welcome the suggestions in 10.5. From our sector’s point of view, mortgage lenders would need clarity as to whether or not a ‘price term’ included the rate of interest payable, and valuation fees, legal expenses, any other upfront costs on application, early repayment charges (generally all set out in the KFI and mortgage offer), as well as other (contingent) charges that might become payable during the life of the mortgage, usually for the payment of a service and set out in a separate tariff.

13. Also regarding mortgage lending, how would prominence work in the context of fee tariffs, which are generally provided up front at the time of application and then at least once annually. In addition, customers requesting a service after application are generally advised about the cost before the particular service is provided. The BSA is of the opinion that this should satisfy the test of prominence, but regulatory clarity on matters such as these is important. It is also our view that any term in the KFI/mortgage offer should be considered to be prominent.

14. It is also important to consider how the proposals in relation to prominence impact on contractual terms and conditions for other products that are prescribed in terms of form and content; eg agreements regulated by the Consumer Credit Act.

15. Although it is possible to make a reasonable argument that certain terms, such as price escalation clauses, are excluded from review, the BSA believes that this would be pointless in the light of accepted practice for a decade or more, and therefore we agree with question 10.4 (4).

16. We do not see why the suggestion in 10.6 is necessary.

Questions on the main subject matter

10.7 Do consultees agree that a term relating to the main subject matter of the contract
should be exempt from review, but only if it is transparent and prominent? (8.81)

10.8 Do consultees agree that a term does not relate to the main subject matter of the
contract if it is included in the grey list? (8.82)

10.9 Would it be helpful to state that the exemption does not apply to any term which
purports to give the trader discretion to decide the subject matter after the
consumer has become bound by the contract? (8.83)

17. On 10.7, our answer is ‘yes’ (see above).

18. On 10.8, broadly yes, but see comments above.

19. On 10.9, yes – this would seem fair and appropriate.

20. The following questions are from the Law Commissions’ previous paper on unfair terms but are repeated in the current consultation in order to generate further discussion. The BSA agrees with the sensible proposal to merge the 1999 Regulations with the Unfair Contract Terms Act 1977, and we provide comments in response to some of the other questions below.

Copy out or rewrite?

10.10 Do consultees agree that the Unfair Terms Directive should not be “copied out”
into the law of the UK, but should be rewritten in a clearer, more accessible way?

21. There has been a lengthy series of discussions over several years of this point. In a nutshell, the BSA agrees with the present Government that the UK should not ‘gold-plate’ EU legislation. While it is true that a ‘copy-out’ approach reduces the risk of such super-equivalence, it should be possible to re-write EU legislation in order to make it more compatible with circumstances within the UK or simply to clarify uncertainties, without introducing super-equivalence and/or going beyond what is permitted in UK implementation of a minimum harmonisation measure.

The definition of a “consumer”

10.11 Do consultees agree that the new legislation should define a consumer by
reference to whether an individual’s actions are “wholly or mainly unrelated to
their business, trade or profession”? (9.17)

10.12 Should it also be made clear that the definition of “consumer” in the new
legislation excludes employees, or is the wording “wholly or mainly unrelated to
their business, trade or profession” adequate? (9.19)

22. Please see our comments on the recent consultation by BIS, which asks the substantially same questions – www.bsa.org.uk/policy/response/BIS_response.htm.

Terms of no effect

10.13 Do consultees agree that terms which purport to exclude or restrict a business’s
liability to a consumer for death or personal injury should continue to be
ineffective? (9.22)

23. Yes, we see no reason to change the law in this respect.

The burden of showing that a term is fair

10.14 Do consultees agree that:

(1) In proceedings brought by individual consumers, where an issue is raise about the fairness of a term, the business should be required to show that the term is fair?

(2) In proceedings brought by an authorised body under its preventive powers, the authorised body should be required to show that a term is unfair? (9.30)

24. Broadly we agree, but it should be noted that claims management companies (CMCs) are now very active in the UK and the modus operandi of some CMCs is to make claims even in cases where the firm in question did not sell the product to the CMC’s client. This business model, which relies on firms, ombudsmen and, potentially, the courts sorting out genuine from ‘non-sale’ complaints, causes businesses considerable problems while providing no benefits whatsoever to consumers – indeed, these ‘non-sale’ complaints are inevitably misleading to consumers. The BSA, therefore, agrees with the two positions set out in 10.14, except that in (1) the current onus of proof should remain on the claimant where the consumer is represented by a CMC.

Negotiated terms

10.15 Do consultees agree that the new legislation should cover terms in consumer
contracts, whether or not they are individually negotiated? (9.36)

25. The Directive was designed to cover standard term contracts and we can see no particular reason to change the position.

The fairness test

10.16 Do consultees agree that the court should consider whether a term is “fair and
reasonable”, looking at: the extent to which it was transparent; the substance and
effect of the term; and all the circumstances existing at the time it was agreed?

26. On balance, this would be clearer than the existing test.

Re-writing the grey list

10.17 Do consultees agree that the indicative list should be reformulated in the way set
out in Appendix B? Alternatively would it be preferable to reproduce the list
annexed to the Unfair Terms Directive in its original form? (9.53)

27. Some re-writing for the sake of clarity could be helpful, but firms, regulators and consumer bodies have got used to the ‘grey list’ over the years and a fundamental re-write could lead to unforeseen consequences. Therefore, we suggest caution.


10.18 Do consultees agree that enforcement bodies should be able to bring
enforcement action against unfair notices which purport to exclude the business’s
liability? (9.57)

28. In principle, yes.

23 October 2012