Onerous Clauses in Terms and Conditions Need to be Made Clear to be Relied Upon

10 DEC 2021

Terms and conditions are rarely an enjoyable read. Often frustratingly small when online or written in overly technical jargon when in print, people tend to worry they may be signing away crucial rights when they thoughtlessly tick the ‘agree’ button. Even at a business-to-business level, professionals can hurriedly gloss over crucial terms which can unwittingly leave their business at a severe disadvantage.

However, the recent case of Blu-Sky Solutions Limited v Be Caring Limited – decided in the High Court – is a welcome development for the fairness of contractual agreements, as well as a lesson for businesses who include onerous clauses and seek to rely upon them.

In this case, Blu Sky, a mobile phone supplier, brought proceedings against Be Caring Ltd (“Be Caring”), a provider of social care, under a contract for the supply of a mobile network service. Following an order of 800 mobile phones, Be Caring then cancelled their order within two weeks, believing there would be no cancellation fee or other negative consequences. Blu Sky, however, had a particularly strict cancellation clause in their terms and conditions which made them entitled them to £180,000 in cancellation fees.

The issue for the court was to decide whether this clause was incorporated into the contractual agreement, and if so whether it could be relied upon by Blu Sky. The reason for the confusion issued from the fact the terms and conditions were presented on Blu Sky’s website, and not on the order form itself. The order form merely referred clients to the website, and read as follows: ‘by signing this document I agree I have logged on to the Blu Sky website at, have read agree and fully understand all terms and conditions regarding the contract’.

The first key question, therefore, was whether the terms and conditions were sufficiently brought to Be Caring’s attention to be incorporated into the contract. Be Caring informed the Court they did not look at the website itself, and that more care should therefore have been taken to make this clause apparent. The judge, HHJ Stephen Davies, commented that Blu Sky had “albeit only by a small margin, discharged the burden of proving that the terms and conditions upon which it relies were accessible’, thus suggesting they were indeed incorporated.

However, there is a different rule for allegedly ‘onerous’ clauses – the definition of these differ depending on the circumstances, but an onerous cancellation clause would be one whereby the cost incurred upon cancellation is out of all proportion to any reasonable pre-estimate of its loss resulting from such a cancellation.

HHJ Stephen Davies referred to the rule from Goodlife Foods Ltd v Hall Fire Protection Ltd [2018]. This reads as follows: “It is a well-established principle of common law that, even if A knows that there are standard conditions provided as part of B’s tender, a condition which is “particularly onerous or unusual” will not be incorporated into the contract, unless it has been fairly and reasonably brought to A’s attention.”

Unsurprisingly, the clause in question was found to be onerous, both because the sum of the “administration charge” bore no relationship to any administration costs incurred or likely to be incurred; and the sum was out of all proportion to any reasonable pre-estimate of its loss resulting from a cancellation.

Having made the onerous nature of the clause clear, HHJ Stephen Davies then concluded that it had not been fairly and reasonably brought to Be Caring’s attention. He gave various reasons for this:

prior to receiving the Order Form, Blu Sky did not tell Be Caring that it would be exposed to a very substantial liability should it decide to cancel its order;

although the Order Form did refer to Blu Sky’s terms and conditions, it did not explain their purpose or give any warning that they imposed potentially substantial obligations;

it would have been perfectly reasonable to include the terms and conditions as part of the Order Form or at least with the orders alongside an explanation; and

Blu Sky made no attempt to highlight the relevant clauses; instead they were “cunningly concealed in the middle of a dense thicket which none but the most dedicated could have been expected to discover”.

Following these points, the judge then concluded that the clause in question was not incorporated into the contract meaning Blu Sky were not able to rely on it. Their claim for £180,000 therefore failed.


This highlights the very real need for businesses to take care when attempting to include possibly onerous conditions and clauses into their contracts. Specifically, care should be taken when reference is made to terms and conditions on the company’s website which are not included in the contract itself, either by annexation or other means.

If such onerous clauses are going to be included, there are some basic steps to take:

  • Give warning: ensure you bring the potential substantial obligations to the other party’s attention, possibly by including them prominently

  • Use simple language: write them for a non-legal reader

  • Make it clear which terms apply: if you have multiple t&c’s on your website, signpost the relevant ones;

  • Date the terms: and date when they are uploaded onto the website;

  • Send the terms with the contract: this is the easiest way to ensure they will be read

If you require assistance with your T&C’s, please contact our team on


Yulia Barnes

Managing Partner

Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.

Experience Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.

Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.

Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.

Will Moran


Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.

Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.

Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.

Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.

Mark Corran


Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.

Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.

Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.

Recent transactions
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  • Representing a central bank in opposition proceedings before the UK IPO;
  • Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.

Ioulia Tatawat

Family Law Adviser

Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.

She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.

Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.

Alex Reidy


Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.

Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.

Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.


Mehves Selamoglu


Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.

Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.

Outside of work and studies, she enjoys running, tennis and yoga.

Mehves is looking forward to developing her legal skills at Barnes Law.


Julia Podgornova

Investor Relationship Manager

Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.

Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.

In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.