The court noted that the existence of an arbitration clause, together with the requirement for a mandatory stay under s9 of the Arbitration Act 1996, meant that an arbitration clause excluded or, at least, hindered a consumer’s right to take legal action. Such a requirement prevented the consumer from having access to the courts and caused an imbalance between the claimant, as a professional builder, and the consumer, as a layperson, to the consumer’s detriment. A further element of imbalance to the consumer’s detriment arose where the claims were small and the fees payable to the arbitrator were comparatively significant, as in this case. The court noted that the impact of the arbitration clause would not immediately be apparent to a layperson. The requirement for fair and open dealing meant that the arbitration clause, and its effect, needed to be ‘more fully, clearly and prominently set out’ than it had been in this case.

Note that the decision in this case would probably have been different if defendant had had professional advisers acting on his behalf and those advisers had been involved in the drafting of the contract