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Assessing plain and intelligible language in the Consumer Rights Act: a role for reading scores?

Published online by Cambridge University Press:  10 January 2019

Kathy Conklin Open the ORCID record for Kathy Conklin [Opens in a new window] ,
Richard Hyde Open the ORCID record for Richard Hyde [Opens in a new window]  and
Fabio Parente Open the ORCID record for Fabio Parente [Opens in a new window]
Kathy Conklin
Affiliation:
School of English, University of Nottingham, Nottingham, UK
Richard Hyde*
Affiliation:
School of Law, University of Nottingham, Nottingham, UK
Fabio Parente
Affiliation:
School of English, University of Nottingham, Nottingham, UK
*
*Corresponding author. Email: richard.hyde@nottingham.ac.uk
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Abstract

Under the Consumer Rights Act 2015 consumer contracts and consumer notices are required to be expressed in plain and intelligible language. This is a difficult concept to capture. Determining whether a contract is expressed in plain and intelligible language involves resource-intensive work by regulators and difficult adjudications by courts. This paper explores whether reading scores present a viable alternative. Can a simple computer program tell a consumer, a business, a regulator or the court that a particular contract is not expressed in plain and intelligible language? The paper begins by exploring the concept and role of plain and intelligible language in the Consumer Rights Act, before considering the ways that reading scores have developed and been used in legal contexts. We then report on the findings of an experimental examination of insurance contracts using a basket of reading scores, using our findings to draw conclusions about the utility of reading scores in determining whether a contract is expressed in plain and intelligible language. We find that reading scores can play a role in such determinations, but that further work is needed to provide appropriate tools for business, regulators and courts to use in assessing plain and intelligible language.

Keywords

Consumer Rights Act 2015reading scorestransparency
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 3 , September 2019 , pp. 378 - 397
Copyright
Copyright © The Society of Legal Scholars 2019 

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Footnotes

†

This work was supported by a Hermes Business Engagement Grant awarded by the University of Nottingham.

References

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’).

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

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

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

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

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27 CRA 2015, s 62(1).

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34 CRA 2015, s 68.

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48 [2009] CTLC 188.

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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.

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

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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].

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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).

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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.

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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.

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142 Above, text to n 86.

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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).

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157 Davis, above n 135.