Tag: commercial-contracts

If you deal with consumers, then you need to know how consumer law applies to your contract terms and notices.

Ten years on from the introduction of the Consumer Rights Act 2015 (the CRA), the Competition and Markets Authority (the CMA) is revising its current guidance on unfair contract terms.

The draft guidance is aimed at making the guidance more accessible, helping businesses better understand and comply with the CRA. The consultation closed on 19 March 2026. Once finalised, it will replace the existing guidance on unfair contract terms.

Which terms are unfair?

Contract terms are unfair if they tilt the rights and responsibilities excessively in favour of the supplier. The law currently uses a ‘fairness test’ by looking at the words in the contract, taking into consideration what is being sold, how a term relates to other terms in the contract, and all the circumstances at the time the term was agreed.

Certain terms and notices giving rise to particular concerns are ‘blacklisted’ and deemed as unsuitable for use with consumers. These include terms that exclude or restrict liability for death or personal injury resulting from negligence, a consumer’s statutory rights and any associated remedies. Blacklisted terms are never enforceable against a consumer.

What are the key changes in the draft guidance?

Enhanced CMA enforcement powers under the DMCC:

The updated guidance integrates the Digital Markets, Competition and Consumer Act 2024 (the DMCC), enabling the CMA to impose penalties without going to court for businesses that use prohibited, non-transparent or unfair terms or notices. Fines may be up to 10% of a company’s global turnover or £300,000 (whichever is higher).

Transparency – more than words:

Transparency now covers not just the content itself, but also its presentation by requiring clear fonts and headings that follow a logical structure, supported by explanation of terms which may be complex or challenging to understand.

Fairness and consumer behaviour:

The requirement of ‘good faith’ should include a behavioural dimension. Suppliers must consider consumer psychology and avoid exploiting consumer biases — for instance, consumers’ tendency not to read standard terms thoroughly, or to underestimate future costs such as renewal or termination fees. Campaigns emphasising quick benefits, such as a free trial, while using tactics to minimise attention as to future costs will face greater scrutiny. Automatic renewal of subscriptions are also specifically noted as an area of concern, with the DMCC’s new subscription provisions (to enter into force no later than August 2026) adding further obligations.

The role of advertising:

Advertising is explicitly incorporated into the fairness assessment, requiring consistency between terms and marketing claims. Small print which removes or curtails more prominent claims, failing to highlight key terms during the marketing process, or inconsistency between marketing claims and the contract terms could give rise to an unfair commercial practices. Statements made by a supplier that a consumer is likely to see may also be treated as terms of the contract.

Exclusions and variations to the contract:

Vague language such as “liability is excluded so far as the law permits” will not remedy an unfair clause; and terms allowing a supplier to vary terms such as changing the description or price of the services or goods may now be deemed unfair should they be overly wide in scope or result in changes that may be unexpected to the customer.

What are the key takeaways for consumer businesses?

The draft guidance makes clear that unfair, onerous or significantly unbalanced terms will be closely scrutinised. Suppliers should ensure that lines of communication with customers are clear, transparent and user-friendly to understand.

Contract terms should similarly be reviewed to make sure that they strike a reasonable balance without prejudicing consumers by including reasonable protections around cancellation or refund rights.

For more information on how the new guidance will impact your consumer contracts, contact Sacha Wilson and Jacky Lai.

If your business enters into contracts with public sector entities for the provision of IT or related services, you will be familiar with the public sector tender and procurement processes. But are you familiar with what can be done to challenge the outcome of those processes?

Whether it is an issue with the application of the scoring criteria, or how the process has been conducted, your business may have the ability to challenge contract awards.

However, in order to do so effectively, your business will need to move quickly and ensure that it deploys the various legal tools available to it strategically.

What is the relevant legislation?

In 2025, the Procurement Act 2023 (the Act) came into force. This represented the most significant development to UK public procurement laws for over 30 years, replacing the well-established EU-founded regime under the Public Contracts Regulations 2015 (the PCR).

How long do you have to bring a claim?

The period during which a legal claim can be brought under the Act is very short and remains largely unchanged from the PCR. In summary:

If you are a supplier seeking to challenge an award, the period to bring a claim is just 30 days from when they knew, or ought reasonably to have known, of the circumstances giving rise to the claim. However, this may be extended for up to three months where the court considers there is a good reason to do so.

If you are supplier seeking to set aside a contract that has been entered into, the period to bring a claim is 30 days from the date it knew or ought to have known of the circumstances giving rise to a claim with a long stop date of 6 months from the date the contract was entered into.

However, the parties can enter into a standstill agreement which, in effect, extends the limitation period, allowing the parties an opportunity to resolve the dispute.

Can you prevent the authority from entering into a contract with another supplier whilst you challenge the decision?

Under the previous regime, contracting authorities were required to observe a 10-day waiting period following the issue of a ‘standstill letter’ to all tendering suppliers before entering into a contract with the preferred supplier. Claims issued prior to contract execution would trigger an automatic suspension of the procurement process.

The Act reduces the standstill period from 10 to eight working days, with the period now triggered by the contract award notice instead of the issue of a standstill letter. Claimants are no longer entitled to the benefit of automatic suspension up until the date of contract execution. This is a significant shift from the previous position and impacts upon strategic considerations.

What information do you have about the decision-making process?

There are various ways you can find out more about the decision-making process. One of them is that contracting authorities must publish a Contract Award Notice on a central digital platform, and an assessment summary to each supplier that submitted an assessed tender.

The assessment summary must include: (a) the scores awarded for each criterion; (b) an explanation of those scores; and (c) in respect of unsuccessful suppliers, the reasons why the contract was not awarded to them, together with the corresponding information at (a) and (b) for the successful tender.

The enhanced disclosure requirements are a positive development for suppliers looking for substantive grounds on which to base a potential challenge.

What remedies can you obtain when challenging an award?

In many cases, compromise solutions are reached with the relevant authority without a claim needing to be issued. However, if you do pursue a claim, the remedies available remain mostly unchanged from the previous regime. There are two main categories:

Pre-contractual remedies:

Where a contract has been awarded but not yet executed, a successful challenge may result in the court granting one of the following orders:

an order setting aside the relevant decision or action (including the decision to award the contract);
an order requiring the contracting authority to take specified action (such as reconsidering a decision previously made);
an order for damages (which may be granted in addition to any other order, and has historically encompassed lost profits arising from the breach and/or wasted bid costs); or
such other order as the court considers appropriate.

Post-contractual remedies:

Where the awarded contract has been executed, the available remedies are limited to damages and/or an order setting aside the contract (subject to certain conditions in the Act).

What does this mean for suppliers?

If you are concerned about a procurement decision, then given the short timeframes for challenge, it is critical to seek legal advice at the earliest possible opportunity to allow your advisors time to evaluate the claim and devise and deploy the optimum strategy.

The Act’s emphasis on transparency, creating a level playing field and the introduction of new obligations on contracting authorities, expands the scope for potential challenges.

You will however need to navigate the reduced standstill period, which now runs for 8 working days from the contract award notice, and the fact that automatic suspension is no longer available until the date of contract execution.

If you would like to find out more about how to make procurement challenges, contact Lizzie Williams and Jacky Lai.

Tag: commercial-contracts

Unfair contract terms in consumer contracts: new draft guidance from the CMA

If you deal with consumers, then you need to know how consumer law applies to your contract terms and notices.

Government IT contracts: how to challenge the procurement process

If your business enters into contracts with public sector entities for the provision of IT or related services, you will be familiar with the public sector tender and procurement processes. But are you familiar with what can be done to challenge the outcome of those processes?