Credit Act 1984

In determining whether a regulated contract or a regulated mortgage is unjust in the circumstances relating to the contract or mortgage at the time it was entered into, the Tribunal shall have regard to the public interest and to all the circumstances of the case, including such consequences as those arising in the event of—

compliance with all or any of the provisions of the contract or mortgage; or

non-compliance with, or contravention of, all or any of the provisions of the contract or mortgage.

Without affecting the generality of subsection (1), the matters to which the Tribunal shall have regard include, to the extent that they are relevant in the circumstances—

whether or not there was any material inequality in the bargaining powers of the parties to the contract or mortgage;

whether or not, at the time the contract or mortgage was entered into, its provisions were the subject of negotiation;

whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract or mortgage;

whether or not any of the provisions of the contract or mortgage impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of a party to the contract or mortgage;

whether or not—

the debtor or mortgagor was reasonably able to protect his interests; or

a person who represented the debtor or mortgagor was reasonably able to protect the interests of the debtor or mortgagor—

the form of the contract or mortgage and the intelligibility of the language in which it is expressed;

whether or not, and when, independent legal or other expert advice was obtained by the applicant;

the extent to which the provisions of the contract or mortgage and their legal and practical effect were accurately explained to the applicant and whether or not the applicant understood those provisions and their effect;

whether undue influence, unfair pressure or unfair tactics were exerted on or used against the applicant—

by any other party to the contract;

by any person acting, or appearing, or purporting, to act for any other party to the contract or mortgage; or

by any person to the knowledge (at the time the contract was made) of any other party to the contract or mortgage, or of any person acting, or appearing or purporting to act, for any other party to the contract;

the conduct of the parties to the proceedings in relation to similar contracts or mortgages, or courses of dealing, to which any of them has been a party; and

the commercial or other setting, purpose and effect of the contract or mortgage.

For the purposes of subsection (2), a person shall be deemed to have represented a debtor or mortgagor if he represented him, or assisted him to a significant degree, in negotiations prior to, or at, the time the contract or mortgage was entered into.

In determining whether a contract or mortgage is unjust, the Tribunal—

must not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract or mortgage was entered into; and

is not excluded from considering any conduct relating to the contract or mortgage by reason only that the conduct constitutes or may constitute a contravention of this or any other Act.

In determining whether to grant relief in respect of a contract or mortgage that it finds to be unjust, the Tribunal may have regard to the conduct of the parties to the proceedings in relation to the contract or mortgage since it was entered into.