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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
School of English, University of Nottingham, Nottingham, UK
Richard Hyde*
School of Law, University of Nottingham, Nottingham, UK
Fabio Parente
School of English, University of Nottingham, Nottingham, UK
*Corresponding author. Email:


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.

Research Article
Copyright © The Society of Legal Scholars 2019 

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


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’).

2 Brandner, HE and Ulmer, PThe Community Directive on Unfair Terms in Consumer Contracts: some critical remarks on the proposal submitted by the EC Commission’ (1991) 28(3) Common Market Law Review 647 at 656Google Scholar.

3 Consumer Rights Act 2015, s 68 and Sch 3, para 3(5), removing any doubts about the existence of such a power (see Office of Fair Trading v Abbey National [2008] EWHC 875 (Comm), [2008] 2 All ER (Comm) 625 at [86]).

4 RW Benson ‘The end of legalese: the game is over’ (1984–85) 13 Review of Law and Social Change 519 at 547.

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9 The penalty jurisdiction is a notable exception. The development of the doctrine is summarised in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis (ParkingEye) [2015] UKSC 67, [2016] AC 1172.

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12 For example the ‘rule’ that prevented the application of exclusion clauses in cases of fundamental breach, disapproved by the House of Lords in Suisse Atlantique Société d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361.

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

14 For example, cases such as Parker v Southeastern Railway (1877) 2 CPD 416; Olley v Marlborough Court [1949] 1 QB 532 and Interfoto v Stilletto [1989] QB 433.

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

16 See Law Commission and Scottish Law Commission Report 69: Exemption Clauses – Second Report (Law Commission 1975) para [11].

17 The term must fall within ss 2, 3 or 6, and the liability must relate to the course of a business or the occupation of the premises. A clause in a contract of the type set out in Sch 1 cannot be reviewed.

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

19 See eg Overseas Medical Supplier Ltd v Orient Transport Services Ltd [1999] 2 Lloyd's Rep 273 at 280.

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

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27 CRA 2015, s 62(1).

28 CRA 2015, s 67.

29 CRA 2015, s 64(3).

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32 CRA 2015, s 64.

33 Brandner and Ulmer, above n 2, at 656.

34 CRA 2015, s 68.

35 Information about the terms of trade is essential to the ability of consumers to make an informed choice in the market (see I Ramsay Rationales for Intervention in the Consumer Marketplace (OFT, 1984) para [3.8]).

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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 (last accessed 4 November 2018) p 12.

57 See above n 30.

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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)).

65 Ashbourne Management Services, above n 52, at [155].

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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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84 Such is the function of the reading scores built in most word processing programs (see for example (last accessed 4 November 2018).

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118 n = 108.

119 n = 111.

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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.

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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 (last accessed 4 November 2018). The age limit of 13 appears generally in social media terms of use (see Snapchat (, clause 1); Facebook (, clause 4(5)); and Twitter (, clause 1).

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