The Regulatory Law Committee of the City of London Law Society (the Committee) has published its response to the FCA’s Discussion Paper on smarter consumer communications.

The Committee’s response focuses on legal issues in connection with the use of “smart” formats in design and delivery of firms’ terms and conditions (T&Cs) and the potential suggestions for improving accessibility of T&Cs without compromising legal certainty.

Generally, the Committee supports the FCA’s efforts to encourage firms to explore alternative modes of customer communication as a means for increasing understanding and engagement in retail markets. However, the Committee also notes that the potential benefits offered by innovation in customer communications are not outweighed by an increased risk of financial services contracts being disputed and potentially rendered unenforceable and/or in breach of regulatory requirements. The Committee states that this risk is particularly relevant where T&Cs are concerned and highlights some specific comments on the following legal issues regarding the use of smart communications in the context of T&Cs:

• contract formation;
• content of T&Cs – legal certainty and comprehensiveness;
• format of T&Cs – incorporation of terms; and
• layering of T&Cs.

View CLLS response to FCA Discussion Paper on smarter consumer communications, 25 September 2015