The Office of Fair Trading (OFT) has stated that it intends to investigate more businesses whose terms and conditions alter the position from what consumers would otherwise understand it to be.
So, if the small print of the terms and conditions contains surprises that change the course of dealing between the business and the consumer to the consumer’s detriment, this may be unfair and harmful to consumers. Examples given include “contracts that have less scope than would be expected; those that contain unexpected charges; those that contain unexpected risks; and those that prevent consumers from taking their business elsewhere”.
The OFT in cracking down against hidden or buried contract terms, is acknowledging that consumers will not always read the small print of a contract but should “be free to focus on the main elements of the deal”. It also warns against terms that are unclear or introduced late on in the sales process.
Businesses should review their contracts and terms of business against the OFT’s recent paper and seek the advice of a solicitor if they require amendment.
We have advised a number of clients in these situations, and seen several clauses set aside by the courts. It is worth seeking advice on drafting at the earliest stage, so as to avoid problems. Consumers affected by these problems should contact our consumer disputes team, who often fight unfair contracts.