The Dekagram: 3rd August 2026

In this week’s Dekagram, Ben Rodgers considers a recent case on compellability of foreign witnesses in the context of an inquest, whilst Charlie Stonehill unpacks the latest guidance from the Competition and Markets Authority on unfair contract terms – some of which some readers may find surprising.

Can an inquiry chair or coroner summons an overseas witness to give evidence?  The answer appears to be a guarded “yes,” following the judgment of the Divisional Court last month in R. (oao UCPI Designated Lawyer Officers Core Participant Group) v. Sir John Mitting [2026] EWHC 1394 (Admin)

The facts

The Undercover Policing Inquiry was set up in 2015 to investigate concerns about undercover policing operations in the United Kingdom during the 1970s, 80s and 90s.  The inquiry chair is Sir John Mitting.  He is particularly keen to hear evidence from a certain retired undercover police officer, known as “HN86.”  HN36 retired 30 years ago, and for the last 25 years has lived overseas.  He is not a core participant in the inquiry.  Nevertheless, his interests are being represented in the inquiry by lawyers at the Metropolitan Police Service.  In September 2025, the inquiry chair sent his lawyers, in London, a notice under s.21 of the Inquiries Act 2005, requiring his attendance to give oral evidence.  The lawyers, on behalf of HN86, brought this claim for judicial review, arguing that it was unlawful to serve a s.21 notice on a person residing overseas.

The law

Under s.21 of the Inquiries Act 2005, an inquiry chair has the power to require a witness to attend the inquiry to give evidence.  Failure to attend when required is an offence.

In an inquest, the coroner may issue a notice requiring a person to ‘attend and give evidence at an inquest’ under schedule 5 of the Coroners and Justice Act 2009.  Again, failure to comply is an offence.

The Chief Coroner’s Bench Book states that “There is however no power to compel evidence from a person who is outside the jurisdiction of England and Wales.”  (Chapter 13, paragraph 62.)  In R (Shafi) v. HM Senior Coroner for East London [2015] EWHC 2106 (Admin), Bean LJ expressed the same view.

The problem

The Claimant’s argument, on behalf of HN86, was that the inquiry’s jurisdiction, derived as it was from the Inquiries Act 2005, was limited to the United Kingdom.  An inquiry or coroner has no extraterritorial jurisdiction.  The inquiry chair had unlawfully purported to exercise his jurisdiction outside the UK.  The s.21 notice had the effect of applying UK criminal law to a person outside the UK.

The resolution

The Divisional Court’s response to this is to say that the offence takes place in the UK.  The offence is that, where there should be a witness, there is an empty chair.  The offence of failing to comply with a notice is an offence of omission, and it is committed at the inquiry’s premises in the UK.  So there is no international law objection to issuing a notice to someone who resides overseas: the notice is issued here, the offence is committed here and enforcement can only take place here.  The requirement to give evidence will not be enforced abroad: of course officers will not be sent to Spain to fetch the witness.  It’s merely that, if the witness later comes to the UK, he can be detained or fined for not having come when the notice required him to.

Comment: what about service?

HN86 could be served within the jurisdiction because he had lawyers in London.  Unfortunately the judgment does not spell this out in words of one syllable, nor does it say anything, really, about service.  So it would not be a surprise if coroners hear submissions, relying on this judgment, to the effect that they have the power simply to post a notice, with UK penal consequences, to a witness overseas.  That could cause all sorts of problems.

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’

CMA Guidance on Unfair Terms Under the Consumer Rights Act 2015

On 22 July 2026, the Competition and Markets Authority published its final revised guidance on Part 2 (Unfair Terms) of the Consumer Rights Act 2015. The underlying law has not changed since 2015. The revision instead focuses on streamlining the guidance, simplifying technical language, and integrating examples to assist readers.

The Key Requirements

Transparency and Fairness

When it comes to unfair terms, Part 2 of the Act requires that terms in contracts and consumer notices used by traders with consumers be both fair and transparent. It applies to all consumer contract terms—whether individually negotiated or in standard form, written or verbal—and to consumer notices, meaning announcements or communications reasonably intended to be seen or heard by a consumer (for example, a sign in a car park or a notice of refund rights).

A term or notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. Good faith is not a technical concept: it reflects fair and open dealing, good standards of commercial morality, and a genuine regard for consumers’ legitimate interests. The Act contains an indicative, non-exhaustive list of terms that may be unfair, known as the “Grey List,” as set out in Schedule 2 of the Act.

The transparency requirement is a standalone obligation. Written terms and notices must be in plain and intelligible language and legible and must be presented so that the average consumer can understand their rights and obligations, assess how the contract will operate in practice, and make an informed choice about whether to enter it.

Exceptions

Two categories of terms are exempt from the “fairness” assessment. Firstly, the “core” exemption (as set out in s.64 of the Act). The core exemption relates to terms which set out the main subject matter or the appropriateness of the price (hence it relates to the “core” of the contract). Such terms are still required to be transparent and prominent, and therefore “core” terms which are hidden, or indeed terms which are labelled “core” but relate to other matters, will not be exempt from being unfair.

Secondly, there is the “mandatory” exception. Terms that operate like those on the Grey List are always assessable for fairness. Some terms are prohibited outright—notably terms excluding or restricting liability for death or personal injury resulting from negligence, and terms overriding or hindering consumers’ statutory rights and remedies.

Enforceability

Unfair and prohibited terms are not binding on consumers, so traders cannot rely on them and may have to repay money paid under them, though the rest of the contract remains binding. Enforcement can be pursued through the courts and, for the CMA, through its new direct enforcement regime; penalties can reach up to 10% of a business’s global turnover or £300,000, whichever is greater.

Practical Guidance

The guidance repeatedly stresses that most consumers do not read standard terms thoroughly before buying, are strongly influenced by presentation, and tend to undervalue future or unlikely events such as termination or renewal fees. Traders are therefore expected to design contracts around how consumers actually behave.

In practice, the guidance offers the following ways in which traders may achieve compliance with Part 2:

• Contracts should contain no hidden surprises and should be consistent with marketing and sales claims.
• Small print must not undercut more prominent claims.
• Important, onerous, or surprising terms should be actively brought to the consumer’s attention during the sales process, including through face-to-face explanation, brochures, executive summaries, checklists, or FAQs. They should not be buried somewhere in lengthy documentation.
• Terms should be logically organised under clear headings, written in short, simple sentences.
• Terms should be free of dense cross-referencing and unexplained legal jargon, and statutory references should be explained in plain terms.
• Where documentation is unavoidably long or complex, a cooling-off period with a genuine cancellation right can help mitigate potential unfairness.

Traders Outside the UK

Following consultation requests, the guidance sets out how the law on unfair terms applies to non-UK traders, who sell within the UK. Under section 74 of the Act, where a consumer contract has a close connection with the UK, Part 2 applies even if the contract states that it is governed by the law of another country. A close connection is likely where the trader has directed commercial activities to consumers in the UK, where the contract is otherwise concluded or performed in the UK. For example, goods delivered to a UK consumer, or where the impact of enforcement will be felt substantially in the UK. The consumer’s place of residence is relevant but not determinative.

A choice-of-law clause does not deprive a consumer of the mandatory protections available under their home law, and exclusive jurisdiction terms preventing a consumer from litigating in their local courts are generally unenforceable. 

Comment

The CMA’s revised guidance is likely to prove influential in consumer disputes before the UK courts. The underlying law is unchanged, so the guidance does not alter the legal test. However, the guidance offers the regulator’s considered view of how the established test operates in practice, and courts assessing fairness and transparency may treat it as a persuasive benchmark against which a trader’s conduct can be measured. Its practical expectations provide a ready yardstick by which a judge might gauge whether a term is transparent and fairly presented. Because the guidance also reflects the CMA’s own enforcement priorities, including its new direct enforcement regime and the significant penalties now available, traders would be prudent to treat it as the practical standard the courts are likely to expect, notwithstanding its non-statutory status.

About the Author

Charlie Stonehill was called in 2021 and joined Deka after successfully completing pupillage in January 2026. He now undertakes work across all of chambers’ practice areas. In his spare time he enjoys participating in and attending sport, music performances, and theatrical productions; and enjoying good food.