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Guest opinion: bearing the burden of ensuring T&Cs are fit for purpose

Philip Harmer

The new Consumer Rights Act, now six months old, along with consumer protection regulations, are two pieces of the Government’s strategy to stop rogue traders, safeguard customers and stimulate the economy.

Now, a third piece of legislation, in relation to contract terms and conditions used by businesses looks like it’s on its way, with the opening of a consultation by the Department of Business Innovations and Skills this month.

Research conducted in the lead up to the Consumer Rights Act revealed the majority of consumers don’t look at, let alone read, the T&Cs, largely because they’re too long, the print’s too small and the language virtually Shakespearian.

Unsurprisingly, sales staff and employees are none the wiser for the same reasons.

While some of the outdated terms would fall foul of the Unfair Contract Terms Act, preventing businesses from relying on them, having to rely on the court to make such a decision, is an unnecessary burden on the justice system and dissuasive for many customers.

Simply dealing with the symptoms, rather than the cause, takes too long and costs the Treasury and the economy too much.

As a result, dealers and retailers will have to bear the cost of reviewing their T&Cs along with the training for customer facing staff and of course the financial penalty by way of fines for any transgressions, as well as the publication of the offences.

Some dealer groups and manufacturers are making moves to adopt the treat customers fairly (TCF) philosophy of the FCA but there’s more to it than smiles and lip service.

Reviewing the volume and type of cases which are regularly submitted suggests a wide held misunderstanding of consumerism, the Consumer Rights Act and contracts in general, reflected in their outdated contract terms.

What is clear and following the financial services analogy, is that no dealer group or manufacturer is “too big to fail” and there needs to be a cultural change, with consumerism forming the structural basis of a motor trade law training and development program.

Author: Philip Harmer is a partner at Stormcatcher Motor Industry Lawyers. He is a practising lawyer, author and speaker on all aspects of employment, commercial and motor trade law.


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