Examine Jim’s possible claims against the Grand Hotel, and if any exclusion clauses apply (10)
It is submitted that Jim may be able to claim for damages regarding the loss of his belongings, however an exclusion
clause applies which may nullify his claims, although this exclusion clause may not apply under the section 11 action
in UCTA 1977 or s62 of the CRA 2015, depending on how the judge may choose to interpret it. Before assessing
whether the exclusion clause of “we exclude liability for loss to personal property” applies depending on the judge’s
interpretation, we must assess whether the exclusion clause is incorporated into the contract. Firstly, we can dismiss
this as being a trade puff, mere opinion or mere representation as it is clearly important. As this is a written contract,
applying the writing rule it is clearly incorporated in the contract, as seen in the Case of the Farmhand as stated by
Lord Feyneux. However, it may be argued that the parties were not drawn enough to the terms as particularly
regarding exclusion clauses, judges are strict on interpreting this. There were 2 ways that Jim was drawn to the
exclusion clause, both on the website and being pinned up in his hotel room. We can dismiss the latter as Jim did not
visit his room so was not drawn to it, as seen in the case of Olly v Marlborough. Regarding the website, it may be
held that small, highlighted text telling him to read the terms and conditions has drawn him enough to the terms, as
seen in the Daily Mail where being on the back drew the claimant enough to the terms. Therefore, it is held that Jim
likely was drawn enough to the term and thus this exclusion clause applies.
Now, we shall assess how the judge may interpret this exclusion clause. There are various ways in which a judge can
interpret an exclusion clause, one of which being the reasonable man test as held by Lord Hoffman in the case of
West Bromwich which is how the reasonable man would interpret the exclusion clause, and in this case it would be
they would not be liable for any loss or damage. However, it may be held that the exclusion clause has been
misrepresented by the receptionist and, as per L’Estrange v Graucob, the defendant is held to the lie regarding
exclusion clauses. This can be seen in the case of Curtis Chem. The receptionist telling Jim that they would look after
the bags as if they were their own is clearly a misrepresentation and thus the hotel will be held to that lie and as they
failed to do what was promised, the exclusion clause does not apply and thus the hotel is liable. Regardless, even if
the judge chose not to apply this, there are 2 statutory terms which may apply. The first of these is UCTA 1977
section 11 action which states that an exclusion clause must be reasonable and a judge may interpret this exclusion
clause to not be reasonable as a hotel should be responsible for loss via their own negligence. Even if a judge did find
this exclusion clause to be reasonable, section 62 of CRA 2015 would likely void the exclusion clause as it states that
there must be no unfair terms and this is evidently an unfair term. Therefore, the exclusion clause is clearly void and
not applicable, making the exclusive Grand Hotel liable for any damages. There is a part of equity law known as
Contra which could apply, which states that the judge can interpret the clause in favour of the least powerful party
as seen in Disney v Various creators but because Jim is a millionaire, both parties are equal so this does not apply
(Transocean Drilling UK). Nonetheless, the Grand Hotel is still liable regardless.
It is submitted that Jim may be able to claim for damages regarding the loss of his belongings, however an exclusion
clause applies which may nullify his claims, although this exclusion clause may not apply under the section 11 action
in UCTA 1977 or s62 of the CRA 2015, depending on how the judge may choose to interpret it. Before assessing
whether the exclusion clause of “we exclude liability for loss to personal property” applies depending on the judge’s
interpretation, we must assess whether the exclusion clause is incorporated into the contract. Firstly, we can dismiss
this as being a trade puff, mere opinion or mere representation as it is clearly important. As this is a written contract,
applying the writing rule it is clearly incorporated in the contract, as seen in the Case of the Farmhand as stated by
Lord Feyneux. However, it may be argued that the parties were not drawn enough to the terms as particularly
regarding exclusion clauses, judges are strict on interpreting this. There were 2 ways that Jim was drawn to the
exclusion clause, both on the website and being pinned up in his hotel room. We can dismiss the latter as Jim did not
visit his room so was not drawn to it, as seen in the case of Olly v Marlborough. Regarding the website, it may be
held that small, highlighted text telling him to read the terms and conditions has drawn him enough to the terms, as
seen in the Daily Mail where being on the back drew the claimant enough to the terms. Therefore, it is held that Jim
likely was drawn enough to the term and thus this exclusion clause applies.
Now, we shall assess how the judge may interpret this exclusion clause. There are various ways in which a judge can
interpret an exclusion clause, one of which being the reasonable man test as held by Lord Hoffman in the case of
West Bromwich which is how the reasonable man would interpret the exclusion clause, and in this case it would be
they would not be liable for any loss or damage. However, it may be held that the exclusion clause has been
misrepresented by the receptionist and, as per L’Estrange v Graucob, the defendant is held to the lie regarding
exclusion clauses. This can be seen in the case of Curtis Chem. The receptionist telling Jim that they would look after
the bags as if they were their own is clearly a misrepresentation and thus the hotel will be held to that lie and as they
failed to do what was promised, the exclusion clause does not apply and thus the hotel is liable. Regardless, even if
the judge chose not to apply this, there are 2 statutory terms which may apply. The first of these is UCTA 1977
section 11 action which states that an exclusion clause must be reasonable and a judge may interpret this exclusion
clause to not be reasonable as a hotel should be responsible for loss via their own negligence. Even if a judge did find
this exclusion clause to be reasonable, section 62 of CRA 2015 would likely void the exclusion clause as it states that
there must be no unfair terms and this is evidently an unfair term. Therefore, the exclusion clause is clearly void and
not applicable, making the exclusive Grand Hotel liable for any damages. There is a part of equity law known as
Contra which could apply, which states that the judge can interpret the clause in favour of the least powerful party
as seen in Disney v Various creators but because Jim is a millionaire, both parties are equal so this does not apply
(Transocean Drilling UK). Nonetheless, the Grand Hotel is still liable regardless.
