UK Decisions of Interest

December 9, 2021

Blu-Sky Solutions Limited v Be Caring Limited [2021] EWHC 2619:

Facts: A supplier (A) contacted B (B) offering to provide telecommunications services. A sent an electronic order form to B stating that all orders and contracts were subject to A’s standard terms and conditions which were available on A’s website. B signed the order form, but subsequently told A that it did not wish to go ahead with the order. A sought to enforce on a cancellation fee which was contained in its standard terms and conditions. B argued that if A wanted to rely on this cancellation fee it should have been brought to B’s attention.

Decision: The court sided with B. It was acknowledged that the standard terms and conditions had been incorporated into the contract by reference. The court expressly stated that it will assume that a term included in a signed contract has been adequately brought to the signing party’s notice in all but exceptional circumstances. However, the court went on to say that, where a contract incorporates terms by reference, one or more of which is unduly onerous, that term needs to be brought specifically to the attention of the signing party. In this case, the court held that the cancellation fee was unduly onerous and had not been fairly and reasonably drawn to B’s attention. The court further held that even if the cancellation fee was drawn to the attention of B, it still would not have been enforceable as it was a penalty clause and therefore void.

Comment: Parties seeking to rely on standard terms and conditions (including those on its website) need to draw particular attention to unusual or onerous terms to the contracting party if they want to have reasonable prospects of being able to rely upon those terms in a dispute.

Rolfe and other v Veale Wasbrough Vizards LLP [2021] EWHC 2809:

Facts: The defendants sent a letter (by email) in relation to potential debts owing to their client by the claimants. The letter referred to the debt, threatened legal action and included a statement on account of fees.

However when the email was sent, there was a single letter typographical error in one of the email addresses which resulted in the letter being sent to the wrong recipient (the Wrong Recipient). The Wrong Recipient promptly responded indicating that they thought the letter was sent to them incorrectly and then (at the Defendant’s request) confirmed that the email had been deleted the very next day.

The claimants brought an action in damages for misuse of confidential information, breach of confidence, negligence and damages under the Data Protection Act. The defendant brought an application for summary judgment (on the debt) on the basis that this was a one-off accidental error which was quickly remedied and the damage or distress suffered, if any, was so low as not to meet the de minimis threshold.

Decision: The High Court granted summary judgment in favour of the defendant. The Court held that the information in question was minimally private and contained nothing especially personal. The Wrong Recipient was rapidly asked to delete it and confirmed that they had done so and there was no evidence of further transmission or any consequent misuse. The Court stated in particular that: “In the modern world it is not appropriate for a party to claim (especially in the High Court) for breaches of this sort which are, frankly trivial”

Comment: This is a robust decision from the High Court on minor breaches of the Data Protection Act 2018. Given the closeness of Jersey’s Data Protection (Jersey) Law 2018 to the Data Protection Act 2018 it is likely that decisions such as this would be persuasive in Jersey.

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