You are the Judge – sneaky terms and conditions


The third scenario in our You are the Judge series is a situation in which a person makes an innocent assumption but is caught out by the terms and conditions of the contract he signed. Is this fair?

What do you think the correct answer is in this situation?

You are the judge - sneaky terms and conditions


Tim booked a session of paintballing for his friend Dave’s stag do.

Tim paid up front for the party’s equipment and ammunition, but some participants were given more paintballs on request during the match (without being told that it would cost them more).

Tim has now been sent an unexpected bill for an additional £450. The company are pointing to a clause in their terms and conditions that states that asking for ammunition refills entails an additional cost of £30 per participant, regardless of who used the refills, and in addition to the on-site cost.

Tim admits he did not read the terms and conditions on the website, despite checking a box saying that he had. Does he have to pay the additional cost?

The answer

This clause is patently unfair and Tim should not be bound by it.

There is a general principle that the more unusual a clause, the more attention should be drawn to it. Just including the clause in a set of website-based terms and conditions without highlighting it is not sufficient.

This is the so-called “red hand rule”, named after the suggestion by Lord Denning that some clauses could only be valid if they were printed in red ink, with a red hand pointing to them. It is currently enforced by the Unfair Terms in Consumer Contacting Regulations 1999, which prohibits unfair clauses that were not negotiated individually.

So, if Tim was asked to pay the additional cost he should make it clear that he was not explicitly made aware of this, and he should be fine. Of course, if the clause was in fact printed in a large font and red ink on the terms and conditions and he simply didn't notice he might not be on such solid ground!

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