James Daley

By James Daley

Terms and conditions are a necessary evil in today’s modern world. They’re needed to protect both businesses and their customers. But because they tend only to be turned to when there’s a disagreement, they have a nasty habit of being written in a language that few of us can understand.

All businesses are well aware of the problem. But most take the view that because almost no one reads them, it’s not something worth tackling. Of course, one reason that people don’t read them is precisely because firms have not put in the effort to make them readable.

The good news for consumers – and perhaps the bad news for companies who have not got round to reshaping their terms – is that the legislative consumer rights framework no longer places much importance on customers reading long and complex Ts&Cs.

The Consumer Rights Act 2015 makes it clear that if firms are including anything onerous in their contracts, they need to bring it prominently to the customers’ attention. That means that companies can no longer get away with burying a trap on page 29 of their terms. It needs to be made clear to the customer before they sign up to a service.

Plain and intelligible

What’s more, for contract terms to be fair, the Consumer Rights Act says they need to be written in plain and intelligible language.

I’d estimate that around 90% of consumer contracts fail that test. And those that sit outside of the regulated sectors such as financial services are worst of all.

There’s very little case law around the Consumer Rights Act yet – but it’s surely only a matter of time before a big case hits the courts, reminding firms that their lengthy legal documents are no longer fit for purpose.

Many in the legal profession stand behind the legal jargon that tends to prevail in these contracts – making the case that it’s only through using these specific terms that they will be able to prove their intention to the courts.

But if consumers couldn’t make sense of it, then how can it pass the “plain and intelligible” language test?

Clarity is a necessity not a nice to have

Writing consumer contracts in plain English is now a necessity – rather than simply a nice to have. It may take laywers out of their comfort zone but it’s what the law requires.

My business specialises in helping companies with this work. And it’s often a painful process trying to persuade stakeholders who have been working in a different way for the past 30 years to see the light. But through a hours of discussion and by showcasing what a growing number of large firms are achieving as they take on this challenge, we help companies create 21st century contracts.

A good terms and conditions document should be a manual for the consumer. There’s no need for them to read it from top to bottom when they buy your product or sign up to you service. But they should be able to dive off from the contents page to every line of enquiry they might possibly have.

Headings like “important information” and “general conditions” have to go, replaced by intuitive questions such as “How do you look after my personal information?”.

In several states in the US, there is already legislation forcing firms to write contracts with a reading age of no more than 13. And I’d love to see a similar expectation set by government and regulators in the UK.

But if the nudge doesn’t come from the government, it may soon enough come from the courts – as judges order firms to pay the price of relying on jargon.

This article originally appeared in the Collaboration Network journal in November 2020