First case in which the Court of Appeal considers working of 'click-wrap' incorporation
The rules for incorporating terms and conditions into a contract pre-date the digital area. Broadly, Ts and Cs do not have to be read by the other side: they just need to be aware that there is writing (even if they do not know that that writing contains Ts and Cs).
The party with the relevant Ts and Cs must do what is reasonably sufficient to bring them to the attention of the other party. In the consumer space, the Consumer Rights Act 2015 (and before that, the Unfair Terms in Consumer Contract Regulations 1999) attempts to address unfairness to the weaker party.
Parker-Grennan v Camelot UK Lotteries Ltd is the first case in which the Court of Appeal has considered how incorporation works when a contract for goods or services is made online (and where, often, customers click "I accept" (a procedure known as "click-wrap"), without reading the Ts and Cs, as they cannot proceed with the sale if they do not click).
Without wishing to lay down general guidelines, the Court of Appeal said that requiring consumers to scroll through several pages before getting to the click-wrap would not make it more likely that they would read them. As with physical sales, the seller does not have to ensure the consumer reads the terms and conditions – it need only take reasonable steps to bring them to their attention.
Accordingly, it was sufficient here to adopt the click-wrap procedure and to then link to later versions of the Ts and Cs via a drop-down menu.
However, the Court of Appeal cautioned that that might not work in every case – one example where it might not work would be where "the website remains open for a transaction for such a limited period of time that in practice the consumer would not have a sufficient opportunity to read and digest all the standard terms and conditions (if they desired to do so) as well as to conduct the transaction".
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