Introduction

CMA 37, the Competition and Markets Authority’s guidance on unfair contract terms, provides a detailed framework for assessing fairness under the Consumer Rights Act 2015 (CRA). While the guidance is comprehensive, its practical value could have been strengthened by explicit reference to recent and highly relevant case law, most notably Parker-Grennan v Camelot [2024] EWCA Civ 185 (Camelot).

The Camelot decision provides important clarification for businesses on the enforceability of standard terms incorporated through click-wrap mechanisms and slightly recalibrates expectations of the “typical consumer” when compared with the long-standing authority of Office of Fair Trading v Foxtons Ltd [2009] EWHC 1681 (Ch) (Foxtons). This article considers whether the CMA’s failure to reflect Camelot in CMA 37 risks undermining its role as an impartial and up-to-date regulator, and identifies specific areas where such a reference would add clarity for both businesses and consumers.

 

Incorporation of Terms via Click-Wrap

In Camelot, the Court of Appeal confirmed that click-wrap consent, where a consumer actively ticks a box or clicks “I accept”, combined with clear and effective signposting, is sufficient to incorporate contractual terms. This applies even where those terms may be onerous or unusual.

This finding is directly relevant to CMA 37, Part 2, “Relevance of earlier case law” (p.14). While CMA 37 acknowledges traditional principles of incorporation, it does not explicitly address modern digital contracting methods. A reference to Camelot would provide valuable clarification that online incorporation mechanisms, when properly implemented, can meet legal requirements under the CRA.

Businesses often struggle to determine how best to ensure their online terms are legible, transparent and reliably incorporated by reference. Camelot reaffirms that terms can be validly incorporated via click-wrap where they are easy to locate, easy to understand and supported by clear signposting. As Andrews LJ stated at paragraph 46 of the judgment:

“The trader only needs to take reasonable steps to bring the terms and conditions to their attention, which in my judgment necessarily involves giving them a sufficient opportunity to read them.”

This guidance is of particular importance for businesses contracting online at scale.

 

The Fairness Test under Section 62 CRA

The Camelot judgment also provides important clarification on the application of the fairness test under section 62 of the CRA. The Court of Appeal confirmed that onerous or unusual terms are not automatically unfair simply because of their nature, provided they are reasonably brought to the consumer’s attention.

This is highly relevant to the CMA 37 section entitled “Fairness test – section 62” (from p.21 onwards). The guidance would benefit from citing Camelot to reinforce the principle that fairness is assessed by reference to transparency, accessibility and the consumer’s opportunity to review the terms, rather than the mere presence of burdensome provisions.

Camelot makes clear that businesses may rely on standard terms and conditions, even where those terms are onerous or unusual, provided they are properly signposted during the online contracting journey. Importantly, incorporation by reference does not render such terms automatically unfair, notwithstanding that they remain assessable for fairness under section 62(4) of the CRA.

The Court placed significant weight on the steps taken by Camelot to explain the rules of the game to participants. The approach adopted was found to be reasonable and aligned with what a normal consumer would expect. At paragraph 51, Andrews LJ stated:

“By adopting the click-wrap procedure the Appellant was bound by those terms, subject only to the question whether any of them was ‘unfair’ within the meaning of the UTCCR.”

The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), as the predecessor regime to the CRA, was effectively restated by the 2015 Act, making this reasoning directly applicable.

 

Transparency under Section 68 CRA

The Camelot decision also provides valuable insight into the transparency requirement under section 68 of the CRA, addressed in CMA 37 from p.30 onwards. Despite the presence of misleading animations within the user interface, which led the consumer to believe they had won £1 million rather than £10, the Court upheld the contract.

The decisive factor was that the underlying terms were clearly accessible and had been agreed to through the click-wrap process. This reinforces the principle that transparency focuses on the clarity, visibility and accessibility of contractual terms, even within complex or engaging digital environments.

A reference to Camelot within CMA 37 would strengthen the guidance by illustrating that where traders meet transparency requirements through effective signposting and accessibility, they may rely on incorporated terms, subject to any subsequent assessment of fairness.

 

Is Camelot an Inconvenient Case for the CMA?

CMA 37 remains a highly valuable resource for businesses seeking to understand how the CMA interprets and enforces the CRA and wider consumer protection legislation. However, the guidance continues to rely heavily on Foxtons, which adopts a particularly low expectation of consumer engagement with online terms and conditions.

Camelot represents a subtle but important shift. It recognises that, in a digital contracting environment, businesses can reasonably expect consumers to engage with clearly presented and properly signposted terms. Where those standards are met, businesses are entitled to rely on the terms incorporated via click-wrap mechanisms.

By incorporating Camelot into CMA 37, the CMA would:

• Provide a clear and modern example of valid online incorporation.
• Clarify that fairness and transparency depend on signposting and accessibility rather than consumer passivity.
• Offer practical benchmarks for businesses operating in digital and online markets.

Conclusion

CMA 37 remains a robust and authoritative guide but integrating recent case law such as Parker-Grennan v Camelot would significantly enhance its relevance to modern contracting practices. The decision provides a clear illustration of how courts apply CRA principles in online environments and offers practical guidance for businesses drafting and implementing consumer terms. In that sense, Camelot is not an inconvenient truth, but an essential one.