Pre-contractual information

Before a consumer becomes bound by a contract with you, consumer law requires that certain pre-contract information is provided to that consumer. What constitutes the contract for these purposes will be determined on the facts and by the form of your agreement with your client. In many cases, your contract is likely to be your client care letter, your terms of engagement, a letter confirming your instructions or some other similarly named document.

You are likely to satisfy many of the pre-contract information requirements naturally as part of your engagement with consumers, not least because there is considerable overlap between these requirements and those set out in the Code of Conduct¹See, for example, principle 3.4. and other regulatory guidance.²See, for example, the CLSB’s Guidance Note on client care letters. However, as consumer law states that pre-contract information is to be treated as a term of the contract,³Consumer Rights Act 2015, section 50. it is important you ensure this is given, or made available, to consumers before a consumer enters into a contract with you.

Although there is some overlap between the pre-contract information requirements and the material information referred to above, they stem from separate legal obligations and care should be taken to ensure compliance with both. In particular, it is worth noting that although providing some material information just before a consumer enters into a contract with you may satisfy your pre-contract information obligations, it may still leave you vulnerable to a breach for failing to provide material information in a timely fashion.

The pre-contract information that you need to provide to consumers, and the form in which you need to provide it, will depend on how the contract is entered into with the consumers. This is summarised in Annex 1. However, in all cases this information needs to be provided to consumers in a clear and comprehensible manner.

The law recognises three types of contract:

• on premises – for example where the contract is entered into in person at your offices or following a face-to-face meeting at your office (even if the contract is entered into online);
• distance – for example where the contract is entered into by email, online or over the phone and up to this point the contact with your client is exclusively through one or more means of distance communication;
• off premises – for example where the contract is entered into face-to-face, but in a location that is not your usual business premises (such as the consumer’s home or at another law firm’s offices).⁴The Consumer Contracts Information, Cancellation and Additional Charges Regulations 2013, regulation 5.

As noted above, consumer law provides that the pre-contract information you provide to prospective consumer clients is to be treated as a term of the contract that you subsequently enter into with them. It is therefore important for you to ensure that the pre-contract information is accurate and up to date, because otherwise you may breach the terms of your contract with your client. This may be particularly relevant, for example, where you are relying on pre-contract information that is provided on your website or in pre-printed leaflets and marketing.

Consumer law provides that you cannot rely on any change to the pre-contract information provided to a consumer (whether such change takes place before or after the contract is entered into) unless that change has been expressly agreed between you and that consumer client. In practical terms, if changes are needed before entering into the contract, this means you will need to highlight changes to pre-contract information promptly and obtain the client’s consent before seeking to enter into a contract with a consumer on the basis of the change. This may be particularly important, for example, if you are updating a standard fee list that has previously been provided to the consumer.

Where a change to pre-contract information is necessary after a contract has been entered into, there may be certain circumstances in which you can rely on a variation clause to agree such changes with a consumer client. However, any such clause must be fair in accordance with unfair terms legislation – see further Contract terms.

Previous section | Next section