The case of Green v Petfre (Gibraltar) Ltd (t/a Betfred) hit the headlines recently, when Andrew Green succeeded, after a 3 year battle, in recovering his winnings of £1,722,500.24 from a game on Betfred’s online casino.
Mr Green played a game called ‘Frankie Dettori's Magic Seven
Blackjack’, in which he could place side bets on ‘trophy cards’. The game was licensed to Betfred by Playfair
in Gibraltar and (unknown to the parties) a software error stopped the game
resetting as intended, so that Mr Green ended up with many more trophy cards than
he should have. The chance of a player
achieving the jackpot of 7777 times the side bet stake should have been
0.00018361%, but Mr Green had won the jackpot three times before he eventually stopped
betting at 5:58 am. When Mr Green
attempted to cash in his virtual chips, Betfred investigated and eventually
refused to pay out, citing various exclusions of liability in their online
terms and conditions.
Mr Green eventually obtained summary judgement from Mrs Justice
Foster in the High Court to strike out Betfred’s defence based on the terms and
conditions as having no realistic prospect of success. Apart from the interesting facts of the case,
it also provides a useful illustration of the Courts’ approach to online terms
and conditions in a consumer case.
The Betfred terms and conditions were accepted by Mr Green clicking
an ‘Accept’ box when he first opened an account with Betfred several years
previously. There was no dispute about
their acceptance – Mr Green was even suing on one of the terms and conditions
to recover his winnings. The problem was
whether the particular exclusions on which Betfred relied were effective.
The full terms and conditions here consisted of the Terms
and Conditions, which were 32 pages long (if printed), an End User Licence
Agreement of 9 pages and Game Rules for the particular game of 6 pages. The Terms and Conditions document in
particular was poorly drafted, with what the judge described as a number of infelicities
of presentation. It was iterative and repetitive, in places the numbering was
absent or inconsistent and it contained typographical mistakes. The frequent use of capitalisation of whole
clauses served, in the judge’s view, to obscure rather than highlight key
provisions.
The judge’s conclusions were that:
- As a matter of contractual interpretation the wording of none of the exclusions relied upon by Betfred was sufficient to exclude liability for the particular error that occurred. Their meaning was unclear, but they appeared to be directed to hardware or communications errors, rather than a behind-the-scenes software error of this kind. What happened was possible if the game were functioning correctly – just very, very unlikely.
- The manner in which the exclusion clauses were presented and Betfred’s failure adequately to draw them to Mr Green’s attention meant that they were not incorporated in the contract. Although it is unlikely a punter would ever read these clauses, they needed to be drafted so as to bring them to his attention if he did.
- As this was a consumer contract under the Consumer Rights Act 2015, Betfred was not entitled to rely on the exclusions because they were not transparent or fair.
The exclusions therefore failed for three different reasons. In addition, Betfred’s defence based on the doctrine
of mistake also failed, because any mistake did not render the contract
incapable of performance, just less advantageous to one party.
Cases like this always turn on their particular facts, but
this case shows the dangers of poorly drafted terms and conditions, particularly
when dealing with a consumer. When
drafting, you need to think carefully about exactly what liability your client
wishes to exclude, draft clearly to cover it and signpost it to the
reader. If you must use CAPITALS, do it
very sparingly or they could well be counter-productive. When you have done all this, you may well
have satisfied the transparency requirement of the Consumer Rights Act, but you
will still have to persuade a Court that the exclusion is fair. Maybe a clearly drafted exclusion of
liability for obvious software errors would be fair, but an error like this
which produced a possible but highly unlikely result seems trickier to argue it
would be fair to exclude. The punter
will simply assume it his lucky day, rather than that it must be a software
error.
What we don’t know is whether Playfair’s business to
business exclusions of liability in their contract with Betfred proved
effective.
