business man with a magnifying glass, reading the small print in a contract

The recent case of Blu-Sky Solutions Limited v Be Caring Limited serves as a reminder of the risk of burying onerous contractual terms in the small print.

We are regularly asked to accept detailed terms and conditions when entering into contracts with businesses for the supply of services and goods. The “small print” contained in these terms and conditions can give rise to disputes at a later stage when a party seeks to rely on them in order to enforce its rights under the contract.

In the recent case of Blu-Sky Solutions Limited v Be Caring Limited, the court considered whether Be Caring was bound by a particularly onerous clause in Blu-Sky’s standard terms and conditions.

Background to the case

Blu-Sky had included a clause in their terms and conditions which set out a cancellation fee in the event that Be Caring cancelled their telecomms contracts with Blu-Sky. This cancellation clause was not included in the main contract that Be Caring signed, but the contract referred to Blu-Sky’s terms and conditions which could be found on their website.

Be Caring cancelled their contracts, and Blu-Sky tried to collect the cancellation fee of some £216,000. Be Caring asserted that the cancellation clause was unenforceable.

Blu-Sky brought a claim against Be Caring for the £216,000 cancellation fee, but the judge agreed with Be Caring, and held that as the cancellation clause was particularly onerous and had not been ‘fairly and reasonably’ brought to the attention of Be Caring prior to their entering into the contract, it had not been incorporated as a term of the contract, and therefore could not be relied on by Blu-Sky.

A reminder not to bury terms in the small print

This case serves as a reminder of the risk of burying particularly onerous contractual terms in the small print of standard terms and conditions.

It also demonstrates the importance of taking the time to consider the detail of any standard terms and conditions in advance of entering into a contract. This can help to avoid costly litigation further down the line.

If you would like advice on contracts or commercial disputes, please get in touch.