Consumer Rights Bill

Written evidence submitted by Christopher Burley (CR 21)

1. Introduction about me.

I am 65 years old and an experienced consumer. Before I retired from professional work I was a solicitor with my own practice in Gray’s Inn Square, London. I so worked for thirty years. The bulk of my practice was drafting or reviewing commercial contracts. I had the good fortune of dealing with barristers of the stature of Nicholas Phillips, Robert Alexander, Jonathan Sumption, and Sydney Kentridge (as they then were). I detected that the greater the legal mind the shorter their drafting.

2. Introduction about my amendment.

(a) Things have changed, possibly added to by the ease of drafting, re-drafting and document printing brought about by computers. For instance, one can tell in which decade a commercial lease was entered into. They became thicker and thicker as each decade past. We now live in an age where it is almost impossible to understand what it is a document is intended to state.

(b) Another reason for this is that once professional indemnity insurance ceased to be captive within the profession and became open market, insurers against negligence claims insisted upon the insured taking more and more safeguards. It is only natural for an insurer to wish to maximise premiums but to minimise risk. Such required safeguards have increased considerably over the years. Also, if claims are made against those insurers the insured’s annual premium can go up substantially. Professionals now live almost in fear of being sued for negligence.

(c) And the result of this - longer and longer contracts. However, the lawyers and their clients could not possibly present consumers with lengthy contracts to sign. So what do they do? They print their terms and conditions in the tiniest print they think they can get away with on the reverse of the page the consumer is expected to sign and very often in the lightest of grey print. Indeed, if a consumer held back from signing the contract whilst the consumer tried to read (or even understand) that small print they would be regarded as having taken leave of their senses, not least, for instance, if they are standing in a queue at an airport car rental booth.

(d) The situation is similar regarding on-line services and purchase of goods. Does a retailer of software downloads or any other on-line service really expect consumers to read their terms and conditions?

(e) No one seems to take issue with this. People just sign contracts with no idea what the small print states. The commercial world would grind to a halt if consumers stopped to read the small print, even though it can be very important.

(f) I see that the clauses 61 to 72 of the Consumer Rights Bill are intended to help ameliorate this situation. However, the actual practical effect of those clauses will not be known without much argument between parties’ lawyers and judgments handed down by the courts.

(g) My amendments are intended to see an end to traders and their lawyers seeking to perfect for their own benefit (and that of their insurers) the small print of consumer contracts. The contemporary motto seems to be, ‘If in doubt, add some more words.’ (This tends to be the practice of third tier lawyers.)

(h) The essence of my suggested amendments is simply to stop the ‘small print’ from being small print. If the print size of the ‘small print’ had to be the same size as the majority of the rest of the main contract (i.e. that containing the description of the good or services, the price, the parties and the date), I believe traders would insist that their lawyers substantially reduced the so called ‘small print’. A trader and their lawyer would be too embarrassed to present consumers with what would otherwise be a lengthy document to sign.

3.The Amendment.

The suggested amendments are by way of additional sub-clauses (3) and (4) to Clause 68 ("Requirement for transparency").

"(3) Except where it is manifestly impractical the terms and conditions of a consumer contract shall be in print size no smaller than seventy-five per cent of the main body of the contract (containing the description of the good or services, the price, the parties and the date) and in black ink or black print.

(4) Where it is clear from the circumstances in which a consumer contract arises that a reasonable trader would have no reasonable belief that the consumer would have read the detailed terms and conditions of that contract before the consumer signed it  those terms and conditions shall be unenforceable against the consumer (or any guarantor of the consumer)."

February 2014