¹ G. Howells, “General Clauses in European Consumer Law”, in H. Micklitz (ed.), Verbraucherrecht in Deutschland (Baden-Baden 2005); S. Grundman and D. Mazeaud, General Clauses and Standards in European Contract Law (Leiden 2005) and, in particular, therein, S. Whittaker, “Theory and Practice of the “General Clause” in English Law: General Norms and the Structuring of Judicial Discretion”.

² 93/13/EEC; implemented by the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999, S.I. 99/2083. The general clause itself is contained in art. 3 (1)/reg. 5 (1); see below, section II.A on terms/contracts covered.

³ See s. 11 for the test itself; II.A below on coverage.

⁴ i.e. the UTCCD unfair terms clause; and the various general clauses from the Unfair Commercial Practices Directive (2005/29/EC) (implemented by the Consumer Protection from Unfair Trading Regulations 2008, S.I. 08/1277).

⁵ On the potential for protection levels to be lowered (in particular due to the “full harmonisation” clause in art 4 of the Unfair Commercial Practices Directive) see Howells, G., “The Rise of European Consumer Law” (2006) Sydney Law Review 63 at 79–86Google Scholar.

⁶ The key provision is that excluding “price” terms from review under the general clause on unfair terms (UTCCD art 4 (2)/UTCCR reg. 6 (2) (b)).

⁷ This arguably reflects the Weberian idea of logic or rationality involving “substantive” value judgments (in contrast to purely “formal” rationality which denies such value judgments) (M. Weber, The Theory of Social and Economic Organization, translated by T. Parsons (London 1947), 184–186; also R. Brownsword, Contract Law: themes for the twenty-first century, 2^nd ed., (Oxford, 2006), 288–293).

⁸ On the ideologies of consumer law see G. Howells and T. Wilhelmsson, “EC and U.S. Approaches to Consumer Protection-Should the Gap be Bridged?” (1997) Yearbook of European Law 207.

⁹ An entirely libertarian version of freedom of contract would arguably keep traders free of even the obligation to be transparent (more emphasis on self interest); expecting consumers to take the self reliant initiative to overcome any lack of transparency (more emphasis on self reliance) (C. Willett, Fairness in Consumer Contracts (Aldershot 2007), 26–7).

¹⁰ T. Wilhelmsson, Critical Studies in Private Law (Leiden 1992).

¹¹ Howells, G., “The Potential and Limits of Consumer Empowerment by Information” (2005) 32 J. Law Soc. 349CrossRefGoogle Scholar; I. Ramsay, Consumer Law and Policy (Oxford 2007), 71–85; and Ben-Shahar, O., “The Myth of the “Opportunity to Read” in Contract Law” (2009)5 E.R.C.L. 1Google Scholar. There may be a temptation to link self interest/reliance to “Pareto” efficiency, which focuses on whether individuals are better or worse off after an exchange; and to connect the protective ethic to the “Kaldor-Hicks” criterion, which focuses on whether society is better off. But, both of these concepts are insufficiently determinate to provide a basis for either of the competing ethics. Pareto efficiency is grounded in notions of individual autonomy; yet there is no accepted notion of autonomy (e.g. the text above highlights how a protective ethic is partly based on questioning whether transparency really allows for genuinely rational-autonomous-choices). Equally, in relation to Kaldor Hicks, people are very likely to disagree about whether protection or the pursuit of self interest/reliance is good for society. See generally M.J. Trebilcock, The Limits of Freedom of Contract (Boston 1993), 7, 17 and 19–20.

¹² I.e. the provision excluding “price” from review under the general clause-see note 6 above.

¹³ On different ethics across the EU see Teubner, G., “Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences” (1998) 61 M.L.R. 11CrossRefGoogle Scholar.

¹⁴ See note 2 above; C. Willett, Fairness in Consumer Contracts, note 9 above; and T. Wilhelmsson and C. Willett, “Unfair Terms and Standard Contracts” in G. Howells, I. Ramsay and T. Wilhelmsson, Handbook of Research on International Consumer Law (Cheltenham 2010), 158–191.

¹⁵ See note 4 above; G. Howells, H. Micklitz and T. Wilhelmsson, European Fair Trading Law (Ashgate 2006); OFT/BERR, Guidance on the Consumer Protection from Unfair Trading Regulations (OFT/BERR, 2008); and Willett, C., “Fairness and Consumer Decision Making” (2010) 33 J.C.P. 247–273Google Scholar.

¹⁶ On their inter-relationship see Orlando, S., “The Use of Unfair Contractual Terms as an Unfair Commercial Practice” (2011) 7 E.R.C.L. 25Google Scholar.

¹⁷ On Europeanisation see C. Twigg-Flesner, The Europeanisation of Contract Law (London 2008); and, C. Twigg-Flesner (ed.), The Cambridge Companion to European Union Private Law (Cambridge 2010).

¹⁸ 97/7/EC, arts. 4, 5 & 6 and Consumer Protection (Distance Selling) Regulations 2000, SI 2000/2334, regs. 7, 8 and 10.

¹⁹ 99/44/EC, art. 3 and Sale and Supply of Goods to Consumers Regulations 2002, SI 2002/3045, reg. 5.

²⁰ Cf. Micklitz, H., “Reforming European Unfair Terms Legislation in Consumer Contracts” (2010) 6 E.R.C.L. 347Google Scholar.

²¹ This operates alongside the pre-existing domestic general clause on exemption clauses (Unfair Contract Terms Act-UCTA- 1977, s. 11); as well as the various common law rules on incorporation, construction etc; generally C. Willett, Fairness in Consumer Contracts, note 9 above.

²² UTCCD, art. 1 (1) (UTCCR, reg. 4 (1)) refers simply to “contracts concluded between a seller or supplier and a consumer”; only specific types of contract having nothing to do with consumer law are excluded (e.g. employment, family law-recital 10 to the Preamble).

²³ Excluded by UCTA Schedule 1, 1 (a) & (b).

²⁴ UTCCD, art. 1(1) refers simply to “terms”, all being covered except those positively excluded: terms reflecting mandatory statutory provisions (art. 1 (2)), individually negotiated terms (art. 3 (1)) and main subject matter and price terms (art. 4 (2)). [UTCCR, regs. 4 (1), 4 (2) 5 (1) and 6 (2) respectively].

²⁵ UCTA only covers various types of exemption clause: ss. 2–8.

²⁶ General incorporation and construction rules aside, common law and equitable controls on obligation or liability imposing terms are mainly restricted to specific types of terms, e.g. penalties, deposits and forfeiture of property. See H. Collins, “Fairness in Agreed Remedies” in C. Willett (ed.), Aspects of Fairness in Contract (London 1996), 97; and L. Smith, “Relief Against Forfeiture: a Restatement” [2001] C.L.J. 178.

²⁷ Based on UTCCD art. 7, regs. 10–15 UTCCR grant powers to seek assurances and, ultimately, court injunctions, to prevent the continued use of unfair terms. Art. 6/reg. 8 (1) deal with private law, rendering unfair terms not binding on consumers.

²⁸ UCPD, arts. 5–9/CPUTR, regs. 3–7.

²⁹ See Micklitz, in Howells et al, note 15 above, at p. 121. There is also a list of 31 practices that are in all circumstances considered to be unfair, i.e. without application of the general clauses (UCPD, Annex 1/CPUTR, Schedule 1).

³⁰ CPUTR, reg. 26 (preventive-“enforcement orders”) and regs. 8–18 (criminal).

³¹ Trade Descriptions Act 1968 and Consumer Protection Act 1987, Part III (relevant parts of both repealed by CPUTR, Schedule 4).

³² Administration of Justice Act 1970, s. 40

³³ I.e. Financial Services Authority regime; in particular see the “Treating Customers Fairly” initiative: www.fsa.gov.uk/pages/doing/regulated/tcf/

³⁴ 84/450/EEC, repealed by the UCPD; and the corresponding UK Control of Misleading Advertisements Regulations 1988, SI 1988/915, repealed by the CPUTR.

³⁵ UCPD art. 3 (4) and S. Whittaker, “The Relationship of the Unfair Commercial Practices Directive to European and National Contract Laws”, in S. Weatherill and U. Bernitz, The Regulation of Unfair Commercial Practices under EC Directive 2005/29 (Oxford 2007), 139.

³⁶ Law Commission, A Private Right of Redress for Commercial Practices (2008); and Consumer Redress for Misleading and Aggressive Practices, Law Com. 332 (London 2012).

³⁷ Any “act, omission, course of conduct or representation” (UCPD art. 2 (d)/CPUTR, reg. 2 (1)).

³⁸ UCPD, art. 3 (1)/ CPUTR, reg. 2 (1).

³⁹ For a full account see C. Willett, “Fairness and Consumer Decision Making”, note 15 above.

⁴⁰ UCPD, arts. 6 & 7/CPUTR, regs. 5 & 6.

⁴¹ And thereby causes him to take or be likely to take a transactional decision he would not take otherwise: UCPD, arts. 8 and 2 (j)/CPUTR, regs. 7 (1) & (3) (b).

⁴² Administration of justice Act 1970, s. 40.

⁴³ C. Willett, note 15 above.

⁴⁴ RBOS v Etridge (No. 2) [2002] 2 A.C. 773 for a summary of the cases and a re-statement of the rules.

⁴⁵ The terms-one concerning the payment of contractual interest on a judgement debt, the other concerning bank charges-are not exemption clauses.

⁴⁶ UTCCD, art. 3 (1)/ UTCCR, reg. 5 (1).

⁴⁷ DGFT v First National Bank [2001] 3 W.L.R. 1297, Lord Bingham at 1307–8.

⁴⁸ See below on this.

⁴⁹ DGFT v First National Bank [2001] 3 W.L.R. 1297, Lord Bingham at 1307–8.

⁵⁰ Lord Bingham, p. 1307.

⁵¹ This can be linked to “need-rationality” (above, note 10); and to agendas such as welfarism, social justice and distributive justice: see R. Brownsword, G. Howells and T. Wilhelmsson, Welfarism in Contract Law (Aldershot 1994).

⁵² E.g. through insurance, spreading losses across different divisions of the business, tax deductions etc.

⁵³ E.g. caused by a price escalation clause or a high charge for some form of consumer default.

⁵⁴ H. Micklitz, “Universal Services: nucleus for a Social European Private Law”, in M. Cremona, Market Integration and Public Services in the European Union (Oxford, 2011), ch. 3.

⁵⁵ E.g. terms allowing very restrictive periods within which to make claims and terms or practices requiring expensive or other formalities for a claim to be made.

⁵⁶ Such a term is used by banks because there is a statutory ban on courts adding interest to judgement debts (see County Courts (Interests on Judgments) Order 1991).

⁵⁷ [2000] Q.B. 672.

⁵⁸ DGFT v First National Bank [2001] 3 W.L.R. 1297, Lord Bingham at 1308, Lord Steyn at 1313–4, Lord Hope at 1316 and Lord Millett at 1319.

⁵⁹ Ibid.

⁶⁰ Note 56 above.

⁶¹ Lord Steyn at 1314.

⁶² Lord Bingham at 1308–9, Lord Steyn at 1313–4, Lord Hope at 1316 and Lord Millett at 1319.

⁶³ Measuring relative need is fundamental to a protective ethic (III. A. 2. above).

⁶⁴ The expectation of this form of self reliance is being inferred here; but the House of Lords also explicitly made mention of a letter the banks sent to consumers at the time of the judgement referring to the accrual of interest on top of the judgement debt. This was viewed as helping to justify the term (in that consumers might now manage their affairs accordingly, e.g. by paying off the amount quickly): Lord Bingham, [2001] 3 W.L.R. at 1310.

⁶⁵ E.g., typically, to protect against terms excluding the trader's liability for breach of contract.

⁶⁶ See G. Howells (above note 11), I Ramsay (above note 11) and O. Ben-Shahar (above note 11); and See Willett, C., “The Functions of Transparency in Regulating Contract Terms: UK and Australian Approaches” (2011) 60 I.C.L.Q. 355–385CrossRefGoogle Scholar.

⁶⁷ Due to such factors as lack of time, prior psychological commitment to the purchase, “over optimism” (C. Willett, Fairness in Consumer Contracts, above note 9, 22–26, 59–62).

⁶⁸ See M.J. Trebilcock, “An Economic approach to Unconscionability”, in B. Reiter and J. Swann (eds.), Studies in Contract law (Butterworths 1980), 416–417. This is due to the large number of terms, the complexity of the issues, lack of expertise etc (C. Willett,above note 9).

⁶⁹ C. Willett, above, note 9; and on notions of “contractual” and “competitive” transparency and their recognition by the ECJ see H. Micklitz, “Unfair Terms in Consumer Contracts”, in H. Micklitz, N. Reich and P. Rott, Understanding EU Consumer Law (Cambridge 2009), 135–138.

⁷⁰ Goldberg, V., “Institutional Change and the Quasi Invisible Hand” (1974) 17 J. Law Econ. 461 at 483; C. Willett, above note 9, at pp. 24–25Google Scholar.

⁷¹ A protective ethic could, of course, also go further and protect against transparent, but substantively unfair, terms that are core to the transaction.

⁷² [2001] 3 W.L.R. 1297 at 1313.

⁷³ For a full discussion see C. Willett, “The Functions of Transparency”, above, note 66. On the facts, the actual term was viewed as sufficiently transparent to satisfy good faith, but we do not know whether this would have been viewed as enough to legitimise a substantively unfair term; because, as we saw above, the House of Lords did not view the term as unfair in substance.

⁷⁴ UTCCD, art. 4 (2)/UTCCR, reg. 6 (2) (b).

⁷⁵ I.e. in plain and intelligible language.

⁷⁶ See Collins, H., “Good Faith in European Contract Law” (1994) 14 O.J.L.S. 229CrossRefGoogle Scholar at 238.

⁷⁷ Recital 19.

⁷⁸ OFT v Abbey National and others [2009] UKSC 6; and see Whittaker, S., “Unfair Contract Terms, Unfair Prices and Bank Charges” (2011) 74 M.L.R. 106CrossRefGoogle Scholar.

⁷⁹ This is to avoid any risk of the tem being characterised as a “penalty clause”; which would make it unenforceable at common law. Note also that the Court of Appeal and Supreme Court analysis was that payments by consumers were to be regarded in law as being in exchange for the “whole package” of services offered by the banks (Lord Walker [2009] UKSC 6 at [6], for instance).

⁸⁰ See S. Whittaker, above, note 78, at p. 108, on whether what is excluded from review is a particular form of assessment (the “adequacy”) of a price term (as decided by the Court of Appeal and Supreme Court), or whether it is a price term itself.

⁸¹ Abbey National plc and Others v OFT [2009] EWCA Civ. 116. See also S. Whittaker, above, note 78, in support of the Court of Appeal's focus on the perspective of the “average consumer” and their “genuine choice”, such an approach being in line with the analysis in the text immediately following above as to what is likely to be subject to market discipline.

⁸² See note 81 above at [52].

⁸³ UTCCD, art. 3 (1)/UTCCR, reg. 5 (1).

⁸⁴ This was not actually articulated by the CA/OFT.

⁸⁵ despite not actually being negotiated.

⁸⁶ Above, at notes 69–70 and related text.

⁸⁷ OFT v Abbey National and others [2009] UKSC 6, Lord Mance at [112] and [115].

⁸⁸ Only an assessment of “adequacy” is excluded. Unreasonable price increases, for example, are certainly reviewable under the general clause (UTCCD Annex/UTCCR Schedule 2, para 1 (l)).

⁸⁹ OFT v Abbey National and others [2009] UKSC 6, Lord Mance at [116].

⁹⁰ See note 89 above at [102] and affirming the view that the “interest after judgment” term in First National Bank was correctly viewed as such a default provision, as was the term in Bairstow Eves London Central Ltd v Smith [2004] EWHC 263 (QB).

⁹¹ I.e. the sort of distinction made by the OFT and CA.

⁹² Lord Walker at [44], citing Hugh Collins, “Good Faith in European Contract Law”, above note 76.

⁹³ The Hugh Collins point (ibid), although relied on for support by the Court, is, not, in my view, that all charges are the price provisions; simply that the broad notion of art. 4 (2) is one of consumer choice.

⁹⁴ If provided for by statute, it is not viewed as a price under UTCCD art. 4 (2) (BGH, 30/11/2004-XI ZR 200/03, [2005] Neue Juristische Wochenschrift 1275); but if provided for purely on the basis of the terms, with no statutory background, it is generally the “price” under art. 4 (2) (BGH, 14/10/1997-XI ZR 167/96, [1998] Neue Juristische Wochenschrift 383).

⁹⁵ P. Davies,” Bank Charges in the Supreme Court” [2010] C.L.J. 21 at 22.

⁹⁶ Chen-Wishart, M., “Transparency and fairness in bank charges” (2010) 126 L.Q.R. 157 at 160–161Google Scholar.

⁹⁷ It may be that there is now more competition over bank charges, due to publicity making them more central to how the bargain is perceived; but not when the case was decided.

⁹⁸ This scope is not to be restricted by applying a test that looks beyond what the contract technically provides for. Self interest is further emphasised by the fact that a reason for concluding the charges to be part of the price was the amount of money (£30 million) that they made for the banks annually, e.g. Lord Phillips, at [88].

⁹⁹ Note 56 above and DGFT v First National Bank [2001] 3 W.L.R. 1297, Lord Hope at 1316 and Lord Millett at 1320.

¹⁰⁰ Lord Rodger at 1322.

¹⁰¹ Lord Millett at 1320.

¹⁰² Because of the scope for its harsh consequences to be mitigated through exercise of the powers.

¹⁰³ This is openly admitted by the Banks.

¹⁰⁴ OFT v Abbey National and others [2009] UKSC 6, at [91]; Devenney, J., “Gordian Knots in Europeanised Private Law” (2011) 62 N.I.L.Q. 33 at 53–4Google Scholar.

¹⁰⁵ Indeed, why did the Court not choose, ex officio, to assess whether the equality argument brought these terms under the general clause (see Joined Cases C-240/98 to C-244/98, Oceano Group Editorial SA v Murciano Quintero [2000] ECR I-4941 and Case C-243/08, Pannon Gsm Zrt v Erzsebet Sustikné Györfi [2009] ECR I-9579, requiring national courts to assess fairness ex officio)?

¹⁰⁶ Delaying the pending claims was only explicitly mentioned as a reason for not making a reference to the ECJ (OFT v Abbey National and others [2009] UKSC 6, Lord Walker at [50]); while the large income generated by the charges was mentioned, but in response to the OFT argument that the charges could not be viewed as central to the bargain (above, note 81 and related text). See discussion of the impact of the banking crisis in J. Devenney, above note 104, at 52.

¹⁰⁷ Beale, H., “The impact of the decisions of the European Courts on English contract law: the limits of voluntary harmonization” (2010) 18 E.R.P.L. 501Google Scholar; and C. Willett, “Social justice in the OFT versus Commutative Justice in the Supreme Court”, in Micklitz (ed.) Social Justice in European Private Law (Cheltenham 2011).

¹⁰⁸ They were OFT actions for injunctions under UTCCR, regs. 10–15, rather than actions by private individuals.

¹⁰⁹ Willett, above, note 107.

¹¹⁰ Beale, above, note 107.

¹¹¹ Beale, above, note 107.

¹¹² E.g. requiring greater notice for incorporation of onerous terms (Spurling v Bradshaw [1956] 1 W.L.R. 461); and contra proferentem construction (Hollier v Rambler Motors [1972] 2 QB 71).

¹¹³ Willett, Fairness in Consumer Contracts, above note 9, pp. 395–401.

¹¹⁴ E.g. in Smith v Bush [1990] 1 AC 831, the fairness of an exemption clause was measured, inter alia, by reference to the heavy financial loss it imposed on relatively poor consumers; and it was not legitimised by its relative transparency.

¹¹⁵ Controls on penalties, forfeiture etc were based on traditions specific to those terms; not on a judicial perception that obligation/liability imposing terms all had a general potential for unfairness. Generally see H. Collins, above note 26.

¹¹⁶ E.g. the terms in OFT v Foxtons [2009] EWHC Ch 1681, where the High Court applied the “central to the bargain” test, concluding that (even if they had been in plain intelligible language, which they were not) fees for peripheral services were not covered by the price exclusion; yet they were expressed technically as payments for services, so would surely be covered by the exclusion based on the Supreme Court approach in Abbey.

¹¹⁷ In Foxtons (above note 116) the lack of transparency persuaded the High Court that the terms-which they decided caused “significant imbalance” as they offered minimal services for the payments made-were contrary to good faith and therefore unfair. Might the Supreme Court be more inclined to understand “good faith” such that it would have been satisfied if the terms had been transparent?

¹¹⁸ UCPD, art. 8/UTCCR, reg. 7 (1).

¹¹⁹ Above, note 41 and related text.

¹²⁰ “Choice constraint” is the other element (along with informed choice) in traditional Aristotelian freedom of choice: R. Faden and T. Beauchamp, A History and Theory of Informed Consent (New York 1986), ch. 7. See the similar notion of a lack of “practicable choice” in economic duress (e.g. Universe Tankships Inc of Monrovia v ITWF [1983] 1 A.C. 366); which must involve assessment of the substantive nature and consequence of the alternatives.

¹²¹ Willett, note 15 above.

¹²² UCPD, art. 9/UTCCR, reg. 7 (2); and Collins, H., “Harmonisation by Example: European Laws against Unfair Commercial Practices” (2010) 73 M.L.R. 89CrossRefGoogle Scholar on the utility of these guidelines.

¹²³ UCPD, Preamble, recital 18/UTCCR, reg. 2 (2).

¹²⁴ UCPD, art. 9 (d)/UTCCR reg. 7 (2) (d).

¹²⁵ E.g. the costs of one or two illegitimate claims that might have been deterred by a more rigorous process.

¹²⁶ Above, note 41.

¹²⁷ Above, note 11 and related text. Recently, in a decision on the general clause on misleading actions and omissions, the High Court (HC) understood the “average consumer” concept by reference to a protective ethic; recognising that such a consumer will not necessarily read all information provided (OFT v Purely Creative [2011] EWHC Ch 106). Logically, then, under the undue influence general clause, pressure should be taken to make it even less likely that information will be read; but will the Supreme Court would support or reject such an approach?

¹²⁸ Generally see H. Micklitz, “Jack is out of the Box-the Efficient Consumer Shopper”, JFT 3-4/2009 s. 417–43; on the protective elements in services of general interest, H. Micklitz, above, note 54.

¹²⁹ See above, note 18 and S.Weatherill, EU Consumer Law and Policy (Cheltenham 2005) 84–112.

¹³⁰ Art. 95 (3) and UCPD, Preamble, recital 1. See also European Commission policy statements on interpreting the unfair practices general clauses in light of the “most recent findings of behavioural economics”, in European Commission, Guidance on the Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices, COM 1666 (European Commission 2009), at 32; and above, note 11 and related text on how behavioural economics research highlights the limits of transparency.

¹³¹ S. Weatherill, “Who is the “Average Consumer”?” in U. Bernitz and S. Weatherill, The Regulation of Unfair Commercial Practices, above note 35, 115.

¹³² The ECJ may even often have accepted the more substantive protections if the national authorities had made a more rigorous case as to why they were needed to protect consumers. Weatherill, above note 131.

¹³³ Case C-144/99, Commission v The Netherlands [2001] ECR I-3541 and Joined Cases C-240 to C-244/98, Oceano Grupo Editorial SA v Murciano Quintero [2000] ECR I-4941.

¹³⁴ Case C-237/02, Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter [2004] ECR I-3403; Joined Cases Case C-261 and C-299/07, VTB-VAB v Total Belgium [2009] ECR I-2949.

¹³⁵ See Freiburger and VTB-VAB above, note 134 and Case C-540/08, Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v Osterreich Zeitungsverlag GmbH [2010] ECR I-0000.

¹³⁶ Case C-484/08, Caja de Ahorros y Monte de Piedad de Madrid v Asociacion de Usarios de Servicios Bancarios (Ausbanc) [2010] ECR I-000, at [70] (confirming that the UTCCD minimum clause allows member states to ignore the art 4 (2) “price” exclusion and subject price terms to the general clause); and see Casde C-358/08, Aventis Pasteur SA v O' Byrne [2010] ECR I-000, a reference under the Product Liability Directive, where quite a significant degree of interpretive guidance was provided.

¹³⁷ See note 133 above and related text.

¹³⁸ Case C-238/81, CILFIT v Minister of Health [1982] ECR 1257.

¹³⁹ [2001] 3 W.L.R. 1297, Lord Bingham at 1307; [2009] UKSC 6, at [49], [50], [115], [117] and [120], but Lords Phillips and Neuberger dissented, believing that the interpretation was notacte clair (at [91] and [120]); and see Whittaker, above, note 78 on the relationship between interpretation and application points in Abbey.

¹⁴⁰ I.e. under the “significant imbalance” and “freedom of choice” (coercion/harassment) provisions.

¹⁴¹ Under the UTCCD general clause.

¹⁴² Under the undue influence general clause.