ENF 20.5 Risk Management

Where a firm has given an undertaking as described in ENF 20.4.6 G (1), or a court has ruled the firm's term unfair, then the FSA considers it desirable that the firm should notify promptly clients with whom it has already concluded contracts of the effect on their contracts.

The firm should also, as part of its risk management, consider the effect on its own business, including whether there are relevant risks requiring mitigation. This may involve the firm contacting existing customers in due course to request that they agree to an amended contract, though such amendments will themselves need to avoid unfairness within the meaning of the Unfair Terms Regulations and comply with the law of contract generally.

As part of their risk management, firms that have not themselves given an undertaking or been subject to a court decision should remain alert to undertakings or court decisions concerning other firms, since these will be of potential value in indicating the likely attitude of the courts, the FSA, the Office of Fair Trading or other qualifying bodies to similar terms or terms with similar effects.