Online Sellers: Don't Gamble With The Small Print

• Published date: 08 June 2021
• Subject Matter: Corporate/Commercial Law, Consumer Protection, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Consumer Law, Trials & Appeals & Compensation
• Law Firm: Stevens & Bolton
• Author: Mr Michael Stocks and Charles Maurice

The decades-old principle that clauses in contracts that are particularly onerous (such as those that exclude or severely limit the liability) must be adequately brought to the attention of the 'buying' party is familiar to many.

However, the recent decision in Green v Petfre (Gibraltar) Limited (t/a Betfred) has brought this principle up to date, with the court determining that exclusion clauses in Betfred's on-screen 'clickwrap' terms and conditions had not been adequately brought to the attention of a gambler who was seeking to recover '1.7m of winnings.

Facts

On 26 January 2018, after having played 'Franki Dettori's Magic Seven Blackjack' for over five hours, Andrew Green had amassed winnings of '1,722,500.24. When Mr Green contacted Betfred to claim his winnings he was informed that Betfred would need to carry out a systems check with the game's creator, Playtech, on account of the winnings being so large.

Subsequently Playtech notified Betfred that there had been a technical glitch in the game to the effect that the odds of Mr Green winning the jackpot had increased significantly from 0.000018361%, to Mr Green being able to win the jackpot three times in one visit. The 'glitch' had been a failure of the game to re-set itself, resulting in Mr Green accumulating more 'trophy' cards than the game should have let him, thereby increasing his chances of winning the jackpot. Neither Betfred nor Mr Green were aware of the glitch at the time.

Mr Green issued a claim for recovery of his winning asserting that Betfred's refusal to pay was a breach of a promise contained in the terms and conditions document that customers may withdraw funds from their account at any time.

Relying on exclusion clauses contained in its terms and conditions, an End User Licence Agreement and in the Game Rules, Betfred argued that it was entitled to refuse to pay out winnings on account of there being a defect in the game.

Mr Green applied to strike out Betfred's defence asserting that Betfred did not have a realistic prospect of succeeding in its defence. The basis of Mr Green's application was that:

1. The meaning of the exclusion clauses did cover the actual technical glitch that had occurred
2. The clauses had not, in any event, been sufficiently notified to him and so had not been incorporated into the contracts with Betfred
3. Even if incorporated, under the Consumer Rights Act 2015 clauses of this nature were required to be fair and transparent and they were neither

Decision

In a...