ABSTRACT
Next the chapter considers the indicative list of terms that may be regarded as unfair and some of the types of unfairness that this seems to show the test to be concerned with.4 We then turn to the general role that is played by the OFT and the courts in applying the test of unfairness.5 The sheer volume of work done by the OFT means that this is a very significant role in practice. There is discussion of the apparent attitude of the OFT to various key elements of unfairness. In particular it is pointed out that the OFT view transparency as vital to fairness and appear to set quite high standards of transparency. However, the OFT certainly do not appear to view transparency as necessarily being sufficient. Terms appear to be viewed routinely as unfair on substantive grounds. In setting fairly high levels of transparency, but also in not viewing transparency as
necessarily sufficient, the OFT appear to take an approach that is more fairness-oriented than freedom-oriented.
