Transactional decision meaning

EMFC Loan Syndications LLP v The Resort Group plc [2021] EWCA Civ 844 What are the practical implications of this case? This decision is significant for transactional lawyers and litigators: To ensure a contract reflects the parties’ intentions, state everything expressly. If a term is to be a condition or warranty, make that explicit; otherwise it is innominate. Interpret and draft by reading the agreement as a whole and checking whether clauses fit, or conflict with, the proposed construction. A construction that seems unfair or unreasonable may still stand: the test is not fairness but what, objectively, the parties are taken to have agreed. Any effective cause term is subject to special wording or indicators in the contract and will depend on the particular facts and terms of each agreement, by reference to ordinary principles of construction and implication. ...

Although considerable attention has focused heavily on the Competition and Markets Authority’s (CMA) bolstered direct enforcement toolkit, the DMCCA 2024 likewise broadens and fortifies further the core foundations of consumer protection law in the UK in several important ways. In this piece, we explore the fresh rules on unfair commercial practices, setting out in detail the operative tests, key risk points and practical approaches designed to achieve compliance in practice. What has changed The DMCCA 2024 restates and revises the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPUTR 2008). It preserves the split between practices that are per se unfair—and therefore unlawful—and those that are only unfair where they influence a consumer’s commercial choices. However, the range of commercial practices falling within each limb has been materially enlarged under the DMCCA 2024. Prohibited practices The following behaviours are always treated as unfair, irrespective of any impact on consumer decision-making: Schedule 20 of the DMCCA 2024 identifies 32 blacklisted practices, such as...

What are the practical implications of this case? Appreciating the reach of this ruling will also aid advisers guiding clients on broker commission structures and their potential effect on the interest charged under a conditional fee agreement, together with the precise disclosures that must be made to consumers about any commission in place. Commission arrangements of the sort agreed between Arnold Clark and Clydesdale in this matter were prohibited by the FCA in 2021. Nonetheless, the court acknowledged that a significant number of car purchases occurred in contexts where those or comparable terms existed or might have applied, or could potentially have been present. The Ombudsman concluded that Arnold Clark recommended to Ms Lewis a Clydesdale finance product (the conditional sale agreement) which formed part of the overall transactional package enabling her to acquire the vehicle, alongside the part exchange of her previous car and a modest cash contribution. Arnold Clark’s recommendation of Clydesdale’s finance terms constituted part of its antecedent negotiations ‘in relation to the goods...

As at 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) has repealed and superseded the consumer protection framework set out in the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277. This Practice Note addresses the offence of carrying on a commercial practice that entails a misleading omission, and the distinct offence of withholding material information from an invitation to purchase under DMCCA 2024. While the provisions for these offences under DMCCA 2024 broadly reflect those in CPUTR 2008, SI 2008/1277, the prior ban on failing to include material information in an invitation to purchase has been extended and now stands as a discrete type of misleading commercial practice. In addition to targeting drip pricing, the offence has been widened so that leaving out material information from an invitation to purchase is unfair regardless of whether it is liable to influence a consumer’s transactional decision (see further below: Offence of omitting material information from an invitation to purchase). For deeper analysis of unfair...

This Practice Note serves as a practical ‘how to’ on avoiding unfair commercial practices with consumers. It explains what businesses can do to stay within the unfair commercial practices (UCP) provisions of the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024), including avoiding drip pricing and taking reasonable and proportionate steps to prevent and remove fake reviews. Where appropriate, it signposts to other detailed notes on consumer law and practice. For a general introduction to the consumer protection provisions of DMCCA 2024 and detailed tracking, see Practice Notes: The Digital Markets, Competition and Consumers Act 2024—key consumer protection provisions and Digital Markets, Competition and Consumers Act 2024—consumer protection tracker. What is an unfair commercial practice? Unfair commercial practices are prohibited under DMCCA 2024, s 225(1). A ‘commercial practice’ means any act or omission by a trader connected to promoting or supplying the trader’s product, or another trader’s product, to a consumer, or a consumer’s product to a trader. It is immaterial whether the act or omission occurred...

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note outlines the legal framework, guidance and practice concerning the protection of consumers against unfair trading. It examines the principal elements of the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPUTR 2008)—notably unfair commercial practices such as misleading acts, deceptive omissions, aggressive conduct and prohibited practices—and reflects on the amendments that the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) is set to introduce. It also touches on the criminal offences under CPUTR 2008, mechanisms for enforcement, and consumers’ private rights to redress. As to the DMCCA 2024, in July 2021 BEIS—now the Department for Business and Trade—opened consultation on reforms to competition policy, consumer rights and the enforcement of consumer law...