Article by William Hibbert – The new FCA Consumer Duty: the interrelationship with common law contractual obligations

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The new Consumer Duty is not actionable under s 138D Financial Services and Markets Act 2000. While some existing legislation affecting contracts address the concepts of fairness and good faith similar to those in the Duty, such legislation is of limited application. Might it be possible to use contractual obligations in order to give a right of action? The case law suggests that only the clearest language of incorporation would incorporate the rules underlying the Duty. The Duty will however inform the standards expected under the implied term of care and skill in contracts for financial services.

This article first appeared in the January issue of Butterworths Journal of International Banking and Financial Law.

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