¹ Transparency is also required by other legislative instruments. A key example is Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), Art 12(1) (information should be provided in ‘concise, transparent, intelligible and easily accessible form, using clear and plain language’).

² Brandner, HE and Ulmer, P ‘The Community Directive on Unfair Terms in Consumer Contracts: some critical remarks on the proposal submitted by the EC Commission’ (1991) 28(3) Common Market Law Review 647 at 656Google Scholar.

³ Consumer Rights Act 2015, s 68 and Sch 3, para 3(5), removing any doubts about the existence of such a power (see Office of Fair Trading v Abbey National [2008] EWHC 875 (Comm), [2008] 2 All ER (Comm) 625 at [86]).

⁴ RW Benson ‘The end of legalese: the game is over’ (1984–85) 13 Review of Law and Social Change 519 at 547.

⁵ See Hodges, C Law and Corporate Behaviour: Integrating Theories of Regulation, Enforcement, Compliance and Ethics (Oxford: Hart, 2015) ch 14 part IIGoogle Scholar.

⁶ See below, text to n 107 et seq.

⁷ See Kessler, F ‘Contracts of adhesion – some thoughts about freedom of contract’ (1943) 43 Columbia Law Review 629CrossRefGoogle Scholar and Leff, AA ‘Contract as thing’ (1970) 19 American University Law Review 131Google Scholar.

⁸ See Director of Fair Trading v First National Bank Ltd [2001] UKHL 52, [2002] 1 AC 481 at [31] per Lord Steyn.

⁹ The penalty jurisdiction is a notable exception. The development of the doctrine is summarised in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis (ParkingEye) [2015] UKSC 67, [2016] AC 1172.

¹⁰ Grunfeld, C ‘Reform in the law of contract’ (1961) 24 MLR 62 at 64CrossRefGoogle Scholar.

¹¹ See eg Denning LJ's statement in Karsales (Harrow) Ltd v Wallis [1956] 1 WLR 936 at 940 that the introduction of limitations on the scope of exclusion clauses was ‘[n]otwithstanding earlier cases which might suggest the contrary’.

¹² For example the ‘rule’ that prevented the application of exclusion clauses in cases of fundamental breach, disapproved by the House of Lords in Suisse Atlantique Société d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361.

¹³ The contra proferentem rule(s) are retained by the Consumer Rights Act 2015, s 69(1).

¹⁴ For example, cases such as Parker v Southeastern Railway (1877) 2 CPD 416; Olley v Marlborough Court [1949] 1 QB 532 and Interfoto v Stilletto [1989] QB 433.

¹⁵ All terms in a signed contract will be incorporated (see L'Estrange v Graucob [1934] 2 KB 394).

¹⁶ See Law Commission and Scottish Law Commission Report 69: Exemption Clauses – Second Report (Law Commission 1975) para [11].

¹⁷ The term must fall within ss 2, 3 or 6, and the liability must relate to the course of a business or the occupation of the premises. A clause in a contract of the type set out in Sch 1 cannot be reviewed.

¹⁸ The extended meaning given to such clauses covered by the Act are set out in s 13.

¹⁹ See eg Overseas Medical Supplier Ltd v Orient Transport Services Ltd [1999] 2 Lloyd's Rep 273 at 280.

²⁰ Directive 93/13/EEC on unfair terms in consumer contracts.

²¹ See Brandner and Ulmer, above n 2, and McDonald, E ‘The emperor's old clauses: unincorporated clauses, misleading terms and the Unfair Terms in Consumer Contracts Regulations’ (1999) 58(2) CLJ 413Google Scholar.

²² A consumer contract is ‘a contract between a trader and a consumer’ (CRA 2015, s 61(1)); ‘consumer’ and ‘trader’ are defined in CRA 2015, s 2(2).

²³ CRA 2015, Explanatory Notes para [6].

²⁴ For general consideration of the Act see Barry, D et al. Blackstone's Guide to the Consumer Rights Act (Oxford: Oxford University Press, 2016)Google Scholar; Whittaker, S ‘Distinctive features of the new consumer contract law’ (2017) 133 LQR 47Google Scholar and Gilliker, P ‘The Consumer Rights Act 2015 – a bastion of European consumer rights?’ (2017) 37(1) Legal Studies 78CrossRefGoogle Scholar.

²⁵ See Weatherill, S EU Consumer Law and Policy (Cheltenham: Edward Elgar, 2013) ch 3CrossRefGoogle Scholar.

²⁶ The test for fairness was set out by the CJEU in Aziz v Caixa d'Estalvis de Catalunya, Tarragona i Manresa [2013] 3 CMLR 89, which was cited approvingly by the Supreme Court in ParkingEye, above n 9, where the key principles of the Aziz decision are set out at para [105]. The term in question was found to be fair.

²⁷ CRA 2015, s 62(1).

²⁸ CRA 2015, s 67.

²⁹ CRA 2015, s 64(3).

³⁰ A term is prominent if ‘it is brought to the consumer's attention in such a way that an average consumer would be aware of the term’ (CRA 2015, s 64(4)). An average consumer is ‘reasonably well-informed, observant and circumspect’ (see Cartwright, P ‘The consumer image within EU law’ in Twigg-Flesner, C (ed) Research Handbook on EU Consumer and Contract Law (Cheltenham: Edward Elgar, 2016)Google Scholar).

³¹ Legibility is a UK law addition to the criteria contained in the Directive (Law Commission Advice to the Department for Business, Innovation and Skills (Law Commission, 2013) at para [4.3]), aimed at ensuring that the ‘consumer [is] actually be given an opportunity to examine all the terms’ (Unfair Terms Directive, recital 20). The legibility concept is beyond the scope of this paper.

³² CRA 2015, s 64.

³³ Brandner and Ulmer, above n 2, at 656.

³⁴ CRA 2015, s 68.

³⁵ Information about the terms of trade is essential to the ability of consumers to make an informed choice in the market (see I Ramsay Rationales for Intervention in the Consumer Marketplace (OFT, 1984) para [3.8]).

³⁶ Ramsay, ibid, at paras [3.26]–[3.28]; Collins, H ‘Good faith in European contract law’ (1994) 14(2) Oxford Journal of Legal Studies 229 at 238CrossRefGoogle Scholar, who states ‘Clarity is essential for effective market competition between terms. What matters primarily for EC contract law is consumer choice…’

³⁷ Cartwright, P Consumer Protection and the Criminal Law (Cambridge: Cambridge University Press 2001) p 6CrossRefGoogle Scholar.

³⁸ In contrast see Bar-Gill, O and Ben-Shahar, O ‘Regulatory techniques in consumer protection: a critique of European consumer contract law’ (2013) 50 (Special Issue) CMLR 109Google Scholar ‘people do not pay attention to standard forms…’

³⁹ In contrast see Weatherill, S ‘Empowerment is not the only fruit’ in Leczykiewicz, D and Weatherill, S (eds) The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (Oxford: Hart, 2016) pp 212–214Google Scholar.

⁴⁰ Brandner and Ulmer, above n 2, at 656.

⁴¹ This assumes that the consumer reads even the core terms of the contract. See Bar-Gill and Ben-Shahar, above n 38, and C Twigg-Flesner ‘The importance of law and harmonisation for the EU's confident consumer’ in Leczykiewicz and Weatherill, above n 39, p 189.

⁴² Chen-Wishart, M ‘Transparency and fairness in bank charges’ (2010) 126 LQR 157Google Scholar.

⁴³ Department for Exiting the European Union ‘The United Kingdom's exit from and new partnership with the European Union White Paper’ (DExEU, 2017) para [2.3].

⁴⁴ See Case C-26/13 Kásler and Káslerné Rábai at [42].

⁴⁵ Case C-96/14 Van Hove v CNP Assurances SA at [40].

⁴⁶ Ibid, at [47].

⁴⁷ Of course, a core term that is not transparent, but is fair, binds the individual consumer.

⁴⁸ [2009] CTLC 188.

⁴⁹ Ibid, at [62].

⁵⁰ Ibid, at [63].

⁵¹ Ibid, at [62].

⁵² Office of Fair Trading v Ashbourne Management Services Ltd [2011] CTLC 237 at [158].

⁵³ Office of Fair Trading v Abbey National, above n 3, at [119].

⁵⁴ Ibid, at [92].

⁵⁵ Ibid, at [104].

⁵⁶ Contrast the GDPR, above n 1, recital 58 (‘any information and communication, where processing is addressed to a child, should be in such a clear and plain language that the child can easily understand’) and Art 12(1). This is discussed in Growing Up Digital Taskforce Growing Up Digital: A Report of the Growing Up Digital Taskforce (Children's Commissioner 2017) available at https://www.childrenscommissioner.gov.uk/wp-content/uploads/2017/06/Growing-Up-Digital-Taskforce-Report-January-2017_0.pdf (last accessed 4 November 2018) p 12.

⁵⁷ See above n 30.

⁵⁸ H Schulte-Nolke et al (eds) EC Consumer Law Compendium: A Comparative Analysis (2008) p 398.

⁵⁹ Office of Fair Trading v Abbey National plc, above n 3, at [89].

⁶⁰ Above n 48, at [31].

⁶¹ Made explicit in the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR), reg 2(4).

⁶² Above n 52, at [155].

⁶³ In the CPUTR 2008, vulnerability exists on account of ‘mental or physical infirmity, age or credulity’ (reg 2(5)).

⁶⁴ Ibid.

⁶⁵ Ashbourne Management Services, above n 52, at [155].

⁶⁶ Office of Fair Trading v Abbey National plc, above n 3, at [119]; Foxtons, above n 48, at [29].

⁶⁷ It may be possible that terms that are particularly damaging to vulnerable consumers are misleading actions under CPUTR 2008.

⁶⁸ Competition and Markets Authority Unfair Contract Terms Explained (CMA, 2015) para [40].

⁶⁹ Above, text to n 35 et seq.

⁷⁰ For example in consumer insurance contracts (see O'Sullivan, J and Hilliard, J The Law of Contract (Oxford: Oxford University Press, 7th edn, 2016) p 217CrossRefGoogle Scholar).

⁷¹ Reflecting the decision in Van Hove, above n 45.

⁷² Of course, consequences of, for example, exclusion and limitation clauses may be significant in economic terms.

⁷³ Eg an arbitration clause.

⁷⁴ Leff, AA ‘Unconsionability and the crowd: consumers and the common law tradition’ (1970) 31 University of Pittsburgh Law Review 349 at 356Google Scholar.

⁷⁵ Collins, H Regulating Contracts (Oxford: Oxford University Press, 1999) pp 87–93Google Scholar.

⁷⁶ See Ramsay, I Consumer Law and Policy: Texts and Materials on Regulating Consumer Markets (Oxford: Hart, 3rd edn, 2012) pp 317–320Google Scholar.

⁷⁷ Hodges, above n 5, ch 14 part II.

⁷⁸ Such as Office of Fair Trading v Abbey National, above n 3, and Foxtons, above n 48.

⁷⁹ Ayres, I and Braithwaite, J Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992)Google Scholar; and Cartwright, above n 37, pp 220–222.

⁸⁰ Ramsay, above n 76, pp 320–330 and Bright, S ‘Winning the battle against unfair contract terms’ (2000) 20(3) Legal Studies 331CrossRefGoogle Scholar.

⁸¹ The ease of reading scores as a tool for assessing compliance is noted by Benson, above n 4.

⁸² Directive 93/13/EEC, recital 19.

⁸³ Chall, JS and Dale, E Readability Revisited: The New Dale-Chall Readability Formula (Brookline Books, 1995) pp 79–80Google Scholar define a readability formula as ‘an equation which combines those text features that best predict text difficulty. The equation is usually developed by studying the relationship between text features (eg words, sentences) and text difficulty (eg reading comprehension, reading rate and expert judgment of difficulty)’.

⁸⁴ Such is the function of the reading scores built in most word processing programs (see for example https://support.office.com/en-gb/article/Test-your-document-s-readability-85b4969e-e80a-4777-8dd3-f7fc3c8b3fd2 (last accessed 4 November 2018).

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⁹⁶ Benson, above n 4.

⁹⁷ Smith, D and Richardson, G ‘The readability of Australia's taxation laws and supplementary materials: an empirical investigation’ (1999) 20 Fiscal Studies 321CrossRefGoogle Scholar.

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⁹⁹ Sutherland, C ‘The elusive quest for simplicity: measuring and assessing the readability of enterprise agreements, 1993 to 2011’ (2013) 35 Sydney Law Review 349Google Scholar.

¹⁰⁰ Miranda v Arizona (1966) 384 US 436.

¹⁰¹ Rogers, R et al. ‘The language of Miranda warnings in American jurisdictions: a replication and vocabulary analysis’ (2008) 32 Law and Human Behavior 124CrossRefGoogle ScholarPubMed.

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¹⁰³ Linsley, PM and Lawrence, MJ ‘Risk reporting by the largest UK companies: readability and lack of obfuscation’ (2007) 20 Accounting, Auditing & Accountability Journal 620CrossRefGoogle Scholar.

¹⁰⁴ Growing Up Digital, above n 56.

¹⁰⁵ Ibid, p 8.

¹⁰⁶ See Fairer Finance ‘Insurance and banking customers need a PhD to understand the small print’ available at https://www.fairerfinance.com/insights/press-releases/insurance-and-banking-customers-need-a-phd-to-understand-the-small-print.

¹⁰⁷ See in general Felsenfeld, C ‘The plain English movement’ (1982) 6 Canadian Business Law Journal 408Google Scholar.

¹⁰⁸ See Cogan, JA Jr ‘Readability, contracts of recurring use, and the problem of ex post judicial governance of health insurance policies’ (2010) 15(1) Roger Williams University Law Review 93 at 120 fn 105Google Scholar and see generally Friman, MS ‘Plain English statutes’ (1995) 7 Loyola Consumer Law Reporter 103Google Scholar; Pressman, R Legislative and Regulatory Progress on the Readability of Insurance Policies (Document Design Center, 1979)Google Scholar and Karlin, CJ ‘Readability statutes – a survey and a proposed model’ (1980) 28 University of Kansas Law Review 531Google Scholar.

¹⁰⁹ Texas Administrative Code title 7 section 90.1045.

¹¹⁰ Code of Laws of South Carolina 1976 title 37 chapter 3 section 202.

¹¹¹ Montana State Code title 33 chapter 15 section 325. The Montana code provides detailed methodology for use in calculating the Flesch reading ease score.

¹¹² See eg Ontario Securities Commission Bulletin Issue 33/40s4 (October 08, 2010) Appendix A available at http://www.osc.gov.on.ca/en/SecuritiesLaw_rule_20101008_81-101_pos-oscb_3340-sup-4.htm (last accessed 4 November 2018).

¹¹³ Sirico, LJ Jr ‘Readability studies: how technocentrism can compromise research and legal determinations’ (2008) 26(1) Quinnipiac Law Review 147Google Scholar.

¹¹⁴ Ibid, at 165–166.

¹¹⁵ Documents on file with the authors.

¹¹⁶ For the purpose of the search the traveller was assumed to have no pre-existing conditions, and did not require any special insurance covering winter sports or business travel.

¹¹⁷ n = 113.

¹¹⁸ n = 108.

¹¹⁹ n = 111.

¹²⁰ n = 112.

¹²¹ Bryman, A Social Research Methods (Oxford: Oxford University Press, 2nd edn, 2004)Google Scholar.

¹²² Directive 93/13/EEC, recital 19 provides ‘the terms which clearly define or circumscribe the insured risk and the insurer's liability shall not be subject to [a fairness] assessment’.

¹²³ Collins, H ‘Good faith in European contract law’ (1994) 14(2) Oxford Journal of Legal Studies 229 at 243CrossRefGoogle Scholar.

¹²⁴ See eg Bankers Insurance Co Ltd v South [2003] EWHC 380 (QB), [2003] PIQR P28.

¹²⁵ For example, buildings and contents insurance, car insurance, travel insurance, pet insurance, gadget insurance, etc.

¹²⁶ See generally Merricks, W ‘The Financial Ombudsman Service: not just an alternative to court’ (2007) 15(2) Journal of Financial Regulation and Compliance 135CrossRefGoogle Scholar.

¹²⁷ See eg Ombudsman News Issue 29 Case 29/1.

¹²⁸ M Eik Michalke koRpus: An R Package for Text Analysis (Version 0.06-5) (2016), available at http://reaktanz.de/?c=hacking&s=koRpus (last accessed 4 November 2018).

¹²⁹ H Schmid ‘Improvements in part-of-speech tagging with an application to German’ (1995) Proceedings of the ACL SIGDAT-Workshop.

¹³⁰ This is a particular risk in the legislative approach taken in those States in the USA where one formula is used (see above text to n 107 et seq).

¹³¹ As in the Montana State Code, above n 111.

¹³² Creating a new reading score methodology tends to be the response in the linguistics literature when identifying consistency problems with the scores or the calculators (see, for example, M Sinha ‘New readability measures for Bangla and Hindi texts’ (2012) Proceedings of COLING 2012: Posters 1141, 1144).

¹³³ Collins, above n 123.

¹³⁴ Directive 93/13/EEC, recital 19.

¹³⁵ Davis, J ‘Protecting consumers from overdisclosure and gobbledygook: an empirical look at the simplification of consumer-credit contracts’ (1977) 63(6) Virginia Law Review 841CrossRefGoogle Scholar.

¹³⁶ See Better Regulation Executive and National Consumer Council Warning: Too Much Information Can Harm (Final Report, November 2007).

¹³⁷ Masson, M and Waldron, MA ‘Comprehension of legal contracts by non-experts: effectiveness of plain language redrafting’ (1994) 8 Applied Cognitive Psychology 67CrossRefGoogle Scholar.

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¹³⁹ As suggested by Greene et al, ibid.

¹⁴⁰ See above, text to n 107 et seq.

¹⁴¹ Sirico, above n 113, at 148, and see the critique of the Microsoft Word at text to n 114 et seq.

¹⁴² Above, text to n 86.

¹⁴³ See Redish, J ‘Readability formulas have even more limitations than Klare discusses’ (2000) 24(3) ACM Journal of Computer Documentation 132CrossRefGoogle Scholar for a more in-depth analysis. See also Selzer, J ‘Readability is a four letter word’ (1981) 18(4) International Journal of Business Communication 23CrossRefGoogle Scholar.

¹⁴⁴ Crossley, SA et al. ‘Text readability and intuitive simplification: a comparison of readability formulas’ (2011) 23(1) Reading in a Foreign Language 86Google Scholar.

¹⁴⁵ Discussed and rejected by Benson, above n 4, at 551 et seq.

¹⁴⁶ Dr Seuss, Green Eggs and Ham (HarperCollins, 2003)Google Scholar has a Flesh-Kincaid grade level of -1.3, but only using single syllable words in short sentences (the only polysyllabic word in Green Eggs and Ham is ‘anywhere’) is unlikely to be sufficient to explain the economic effects of a consumer contract.

¹⁴⁷ As alluded to by A Smith J in Office of Fair Trading v Abbey National, discussed above text to n 55.

¹⁴⁸ Pau, C et al. ‘Complexity of the New Zealand tax laws: an empirical study’ (2007) 22(1) Australian Tax Forum 59 at 89Google Scholar.

¹⁴⁹ Sirico, above n 113.

¹⁵⁰ Ibid, at 170.

¹⁵¹ Funkhouser, RG and Maccoby, N ‘Communicating specialized science to a lay audience’ (1971) 21 Journal of Communication 58CrossRefGoogle Scholar.

¹⁵² Funkhouser, RG ‘Functional evaluation of consumer documents’ (1983) 20(3) Journal of Business Communication 59 at 60CrossRefGoogle Scholar argues that reading scores that are ‘developed for ease of application…’, particularly by computers, are removed from ‘the measurement of actual vocabulary difficulty’, reducing their usefulness in measuring consumer understanding.

¹⁵³ For example, in cross-border transactions, where the consumer may not be a native language speaker, a reading score is unlikely to capture whether the clause would be plain and intelligible to a second language speaker.

¹⁵⁴ Growing Up Digital, above n 56, p 8, fn 2.

¹⁵⁵ Instagram Terms of Use, clause 1, available at https://help.instagram.com/478745558852511 (last accessed 4 November 2018). The age limit of 13 appears generally in social media terms of use (see Snapchat (https://www.snap.com/en-GB/terms/, clause 1); Facebook (https://www.facebook.com/terms, clause 4(5)); and Twitter (https://twitter.com/tos, clause 1).

¹⁵⁶ For example, eye-tracking. See Conklin, K, Pellicer-Sánchez, A and Carrol, G An Introduction to Eye-tracking: A Guide for Applied Linguistics Research (Cambridge: Cambridge University Press, 2017)Google Scholar.

¹⁵⁷ Davis, above n 135.