help with problem question concerning the UCTA

more would need to be known about the scenario to even begin answering this - post the whole scenario?

ohh right, thanks sorry
Brian is a lawyer with a corporate commercial practice in Coventry. As his workload increases, Brian decides it is time to buy a smart-phone so he will be able to use his phone occasionally for business whilst he is away from the office and also so that he can call his family and friends.

EverEager is a large mobile telephony provider, whose mobile network covers most of the UK. Brian visits one of their shops to get advice and to buy a phone. After discussing the options with the sales assistant, Brian decides to purchase a SmartPhone 6+ model on a one-year contract paid for by a monthly payment direct debit of £35 per month. As the assistant is in the process of registering and connecting the phone to the network, she hands Brian a document. It contains the following information:

‘Here’s a brief summary of some of the key points which We’d like to draw to your attention. They’re a useful guide to the Agreement, but aren’t part of it. You should still refer to the terms and conditions on our website.

8. Breaking this agreement. There are instances in which, because of something You do, or do not do, We can suspend or disconnect You from Services and/or end this Agreement. You may have to pay Us a Cancellation Charge as a result.

12. Our liability to You. There are certain circumstances in which Our liability to you is limited or excluded.’ – exclusion clause

Brian glances over the document, signs it and then hands his debit card over to the sales assistant so she can set up the monthly direct debit payment plan for his phone.

On returning home, Brian adds his work and personal email accounts to the phone and informs his family and friends of his new phone number.

For three weeks, Brian operates the phone without incident. In the fourth week, Brian is unable to get a signal on his phone for two days, with the consequence that he misses an important phone call from a client. The client is angry and changes to another law firm with a loss of business to Brian’s firm of £10,000. Once network service resumes, Brian receives an email to his personal email account from EverEager containing a virus. When Brian opens the email, the virus corrupts his email account enabling fraudsters to download the passwords to his bank account. Using the passwords, the fraudsters extract £5,000 from Brian’s bank account; a sum which includes his usual monthly salary of £2000.

Angry at the problems with his phone, Brian stops his direct debit payment and immediately contacts EverEager to inform them that he will not be paying further as he is no longer using his phone. EverEager tell Brian that he is contractually obliged to continue with the monthly payment plan, and as he is refusing to pay, they will exercise their rights under the contract to recover 3 months rental payments, together with a cancellation charge of £250. EverEager deny they bear any responsibility for the problems with Brian’s bank account or the loss of the business he incurs. -
EverEager refer Brian to their terms and conditions on their website which state:

“5. Our liability:
5.1 Our total liability to You for something We or anyone who works for Us does or does not do will be limited to £3000 for each SIM card for one incident. –
5.2 If You are not a Consumer. We are not liable to You in anyway for any loss or damage that was not reasonably foreseeable at the time You entered this Agreement. This includes, but is not limited to loss of income, business or anticipated profits.- EXCLUSION CLAUSE
5.3 If You are a Consumer. We are not liable to You in any way for any loss, income, business or profits, or for any loss or damage that was not reasonably foreseeable at the time You entered into this agreement.- EXCLUSION CLAUSE
5.4 We will not be liable to you if any harm You suffer from a Virus which infiltrates Your Equipment, whether it is transmitted via the Services or otherwise. -

6. When we may suspend or disconnect the Services:
6.1 We may suspend the Services or terminate this Agreement and disconnect any SIM Card from the Network without warning if:
6.1.2 The Network breaks down or needs maintenance.
6.2 You are liable for Charges during suspension unless We decide otherwise. We would not make You pay Monthly Charges during the suspension charges only if there was a severe disruption to the Network (meaning that there was a breakdown in over 90% of the Network which lasted three days or more).
7.2 You do not have the right to terminate the agreement during the first six months of your contract. If You do terminate your contract within the first six months, We reserve the right to charge you 3 months rental charge and a Cancellation Charge of £250. ‘

Advise Brian in relation to his contractual arrangement with EverEager.

okay well s.5(4) is an exclusion clause for consumers, so it falls under UCTA, s.2(2) for negligence liability to consumers, and therefore is subject to the test of reasonableness in s.11. this is if his action in buying the phone is seen as incidental to his business, rather than part of it , fitting the definition of a consumer under s.12 (R&B Customs Brokes Co Ltd v UDT Ltd). this is likely as it is used both for work and personal calls.

then you go to s.11, and s.11(4)(a) and (b) in particular - since EverEager are a large company in the UK, it would be expected that they have a large amount of resources to cover themselves for the liability which they have excluded through s.5(4), as well as insurance to cover it. it is likely the court would hold the clause unreasonable as viruses can be extremely damaging and a multinational corporation , as a matter of policy , should be held liable for any viruses they transmit to their customers

that is a tough question :') is this like an exam question? i'd walk out haha how LONG is that

thank you so so much! you explained that really well! haha, its a 20% assessed piece of coursework due in april so that probably explains the length