The recent High Court decision of Andrew Green and Petfre (Gibraltar) Limited t/a Betfred is a useful reminder of the effect of a poorly drafted exclusion of liability clause in an online consumer contract. The central issue of this case was whether Betfred could successfully exclude its liability to pay Mr Green his £1.7 million winnings.
Mr Green had an account with Betfred (a gambling company based in the UK) and had used Betfred’s online platform to play betting games for several years. On 26 January 2018 Mr Green played a game called “Frankie Dettori’s Magic Seven Blackjack” on Betfred’s mobile app. Mr Green played for 5½ hours and when he finally stopped playing the game, he had amassed £1.7 million worth of betting chips. When Mr Green tried to withdraw the winning chips into his cash account with Betfred he was unable to do so. Betfred informed Mr Green that there had been a glitch in the game, and his winnings could not be paid out.
Unknown to either Mr Green or Betfred, a fault in the development of the game considerably shortened the odds in the player’s favour – the game’s intention was that a player would have a 0.00018361% chance of achieving the jackpot once. A failure of the game to reset after each hand allowed Mr Green to achieve the jackpot three times in one gaming session.
Green v Betfred: the claim
When Mr Green demanded his winnings, Betfred refused to honour the pay-out. Mr Green issued a claim against the betting company. He relied on the terms and conditions he had clicked to accept when he created his Betfred account several years earlier.
Betfred argued that the terms of their contract with Mr Green excluded their liability to pay out the winnings to him in circumstances where there was a software defect.
Amongst other things, Mr Green claimed that it was not the software that had malfunctioned, but the game itself and this was not covered by the exclusion clause. Further, the terms that Betfred relied upon were unclear, inaccessible and not clearly brought to Mr Green’s attention and therefore did not form part of the contract.
Mr Green was a consumer and English law requires contracts with consumers to be fair and transparent and prevents a trader (in this case Betfred) from enforcing an unfair contract term against a consumer.
Green v Betfred: the decision
The decision turned on the construction of the contract. Judge Foster granted summary judgment to Mr Green. The Judge held that the wording of the clauses in the contract between Betfred and Mr Green were inadequate to exclude liability to pay out Mr Green’s winnings because they did not deal with the failure to pay winnings and the reference to “malfunction” on the contract was not sufficient to cover a hidden defect.
The Judge commented that it was unreasonable to expect Mr Green to find and note the importance of the clauses that Betfred relied on and if Betfred wished to exclude liability to pay out on “an ostensibly clear win” it would have to be much clearer in what its terms said.
The Judge also found that Betfred failed to adequately draw the exclusion clauses to Mr Green’s attention, and they were therefore not incorporated into the contract. Further, they were not transparent or fair and Betfred were not entitled to rely on them.
Whilst this case is specific to its facts, it does serve as an important reminder that businesses must take great care when drafting exclusions of liability in consumer contracts. The court will critically scrutinise the terms of the contract and how they are presented to the consumer.
Any ambiguity will be interpreted against the business seeking to rely on the exclusion clause and a clause which fails to meet the strict requirements of consumer legislation is unlikely to be enforceable.
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