The modern English doctrine of unconscionability

This paper argues that the uncertainty that once plagued the English doctrine of unconscionability has given way to certainty and predictability, as the criteria for relief formulated in Alec Lobb Garages Ltd v Total Oil (Great Britain) Ltd has prevailed over the competing criteria identified in Fry v Lane as restated in Cresswell v Potter. It further argues that the Alec Lobb test has had the effect of restricting the protective reach of the modern English doctrine of unconscionability to such an extent that it is unable to provide effective protection to weaker parties. Whilst weaker parties now enjoy significant protection under various statutory regimes, it is argued that unconscionability still serves an important function and it should be developed to enable it to discharge that office more effectively. The paper suggests possible directions in the future development of the English doctrine. In doing so, it argues that, unlike the approach emerging in some jurisdictions, English law should retain unfairness in the terms of the transaction as a requirement for relief.