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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Durber v PPB Entertainment Ltd [2025] EWHC 498 (KB) (05 March 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/498.html Cite as: [2025] EWHC 498 (KB) |
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KING'S BENCH DIVISION
THE ROYAL COURTS OF JUSTICE
B e f o r e :
____________________
CORRINE PEARL  DURBER | Claimant |
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| - and - |
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| PPB ENTERTAINMENT LIMITED |
Defendant |
____________________
Philip Hinks of counsel (instructed by Knights solicitors) for the Defendant
Hearing date: 4.2.2025
____________________
VERSION OF APPROVED JUDGMENT
Crown Copyright ©
Mr Justice Ritchie:
various pizza slices showing the prizes. A pointer was fixed in position to indicate which prize would be won when the wheel stopped turning. For the online Game, instead of manually spinning a wooden wheel, the Claimant clicked the spin button and this made the displayed wheel spin on screen. It stopped, as shown in the Defendant's reconstruction above, determining that the Claimant had won the Monster Jackpot. The Monster Jackpot segment of the digital wheel lit up. The Monster jackpot was stated on the left-hand side of screen as £1,097,132.71. This figure is visible on the reconstruction above, albeit darkened in the photo, so I have put a red arrow pointing at it. It was the Claimant's lucky day.
very evening. In correspondence, the Defendant explained that the computer system which ran the game on the Site had made an error over the display which she saw. It should have pointed to the Daily Jackpot but, because it had been mal-programmed, it did not. The Defendant relied on its written terms and conditions, which it published online and asserted that those entitled it to refuse to pay the Monster Jackpot. The Claimant sued for her Monster Jackpot winnings relying on what she was shown on her screen.
The applications
Terminology
"WYSIWYG": what you see (on screen) is what you get.
"WCT": written contract terms.
"The Rules": the rules of the Wild Hatter game.
"The Game": the Wild Hatter game.
"RNGS": random number generator software.
"Part A": Part A of the Terms of Use of the WCT.
"Part B: Part B of the Terms of Use of the WCT also called the "Conditions".
"The Preamble": the preamble to Part B.
The Issues
(1) What is the proper construction of the Rules of the Game in relation to determining which Jackpot is won in the Game?
(2) Was clause B1 of the Conditions consistent with or inconsistent with the Rules such that priority has to be determined? If so, did the Rules take priority over clause B1 or vice versa?
(3) Were clauses B1 and B2 incorporated into the contract between the Claimant and the Defendant for her play of the Game or were they not incorporated because they were unusual and onerous and were not adequately brought to the Claimant's attention?
(4) Did the scope of clause B2 cover human errors in programming the screen display of the Game and hence entitle the Defendant to make the Claimant's play void and/or exclude liability for the Claimant's win shown on her screen or any win?
(5) If clauses B1 and B2 were incorporated, engaged and had priority, were they or were any parts of them unenforceable under the Consumer Rights Act 2015?
Pleadings and chronology of the action
viewed via hyperlinks during the registration process. As to the terms, the Defendant pleaded that the relevant version was effective from 24th August 2020 and appended those terms to the defence. Unfortunately, the Defendant did not append all of the relevant terms because the Defendant omitted the Rules. The Defendant relied on clauses 2.1, 2.2, 3.1 and 3.2 in Part A and clauses 1 and 2 in Part B. The Defendant asserted that, as set out in clause B1, the outcome of the Claimant's play was determined by the RNGS which determined that she had won only the Daily Jackpot. The Defendant went on to plead that the game was subject to a mapping error affecting the animations so the images which the Claimant saw when playing the game were in error, but asserted that the error did not affect the RNGS outcome. The Defendant accepted that during her play the Claimant's screen showed that she had won a Jackpot because three Jackpot symbols appeared on the slot reels. An animation was then presented to the Claimant with the Jackpot wheel. The Defendant asserted that, as a result of the mapping error, when the wheel spun the pointer came to rest on the Monster Jackpot segment but should instead have pointed to a Daily Jackpot segment. The Defendant asserted that clause B1 determined the outcome of the Claimant's play which was a win of the Daily Jackpot of £20,265.14. The Defendant pleaded that, under clause B1, where there was any discrepancy between that result and the results shown on the Claimant's screen, the records on the Defendant's server were definitive. Further or alternatively, the result displayed on the Claimant's screen was an error within the scope of clause B2 and, in the premises, the Defendant was not liable for any payout, the Defendant was entitled to avoid the play and avoided the play expressly in paragraph 19.2 of the defence.
various questions were asked of the Defendant, in relation to paragraph 4.2 of the Defence, including whether the Game was developed by a third party or licenced by a third party and enquired about ownership of the intellectual property of the software and whether the servers were owned or operated or hosted by a third party. The Claimant asked for details of that third party. In relation to paragraph 14 of the Defence the Claimant asked when the Game was first available to play; whether the error arose at the start or later; when the error first arose; when the Defendant first became aware of the error; how the error is said to have occurred; when the error was resolved and how; for how long prior to the Claimant's play the error had persisted; whether the error was reported to licencing authorities and for copies of the report and the details of the report.
verbal submissions. The Claimant accepted some inadequacy of the pleading but submitted that the Civil Procedure Rules do not require law to be pleaded, only facts and matters, and the inadequacies were a mere formality. I do not consider that the omissions from the pleadings are a mere formality and, at the end of the hearing, I directed that the Claimant should amend her pleadings properly to cover the facts and matters raised in her submissions, so that due procedural formality had been followed.
The post hearing amendments to pleadings with permission
voids all play and plays". The Defendant pleaded that the Rules were not inconsistent with clauses B1 and B2 of the "Terms". The Defendant asserted that the Rules explained how the entertainment features of the Game operate, but do not determine the outcome of plays which are determined under clauses B1 and 2 of the "Terms". The Defendant asserted that B1 and B2 were not onerous of unusual and pleaded that they were commonplace in the gaming industry. The Defendant pleaded that Ss. 47(2)(c) and (d) did not apply to the contract. And clause B1 did not fall within Ss. 57(4)(c) or (d) of the CRA 2015. The Defendant asserted that: "no discrepancy can arise between (i) the outcome of plays determined by the random number generator software and (ii) the outcomes recorded on PPB's server," The Defendant denied that clause B1 caused a significant imbalance in the parties' rights and obligations to the consumer's detriment. The error fell within the scope of "systems … error relating to the generation of any result, bet settlement or any other element of a Game" and/or "communications error" in that it was an erroneous communication of the result. Further the error was a "Malfunction" under the Game Rules. Finally, clause B2 was neither onerous nor unusual and PPB asserted that they would rely on evidence at trial that similar provisions were commonplace in the industry; and was not contrary to the requirement of good faith and did not cause a significant imbalance in the parties' rights and obligations to the consumer's detriment.
Pleading amendment without permission
(1) The Defendant now relies upon these words: "Malfunction voids all play and plays" which were in the Rules provided in the hearing bundle (p168). They were not relied upon by the Defendant at the hearing and were not mentioned at the hearing or in the Defendant's skeleton argument for the hearing. I have therefore heard no submissions upon these words from either party. I do not know what "malfunction" the Defendant asserts arose. I do not know the Claimant's case on the correct interpretation of those words. In any event, the Defendant abandoned its formerly pleaded case that the play was void so this addition contradicts that abandonment. Furthermore, the Defendant made no assertion at the hearing that the system software or hardware was malfunctioning. The Defendant's evidence contained the admissions that a human mis-programmed part of it.
(2) The Defendant has pleaded that it intends to call, at trial, evidence to prove that clauses B1&B2 were commonplace and usual in the industry. However, this was not backed up by any evidence from the Defendant in any of the witness statements provided at the hearing and was not mentioned in the Defendant's skeleton argument. Instead, the Defendant pursued its defence by reference to the terms in evidence in Parker and Longley (both cited below). If the Defendant had intended to rely on such evidence it should have served that evidence at least in summary for the hearing. There was and is no permission for the Defendant to plead new or different matters from those raised and relied upon at the hearing and in the skeleton arguments. So, the Defendant has gone beyond the permission granted. I did initially consider striking out those two amendments but on reflection have chosen to ignore those two parts of the Defendant's pleading because they were added outside the permission I granted. In any event, because neither was argued or pursued at the hearing, they are, in effect, a late attempt to re-argue the application on different grounds after the hearing thereby putting the Claimant at a disadvantage.
The lay witness evidence
various submissions in law which should not generally be put in witness statements. Submissions should be in skeleton arguments. He asserted that clauses B1&2 were not incorporated and were not enforceable and do not cover the facts. He asserted that the Defendant's asserted error was not within the scope of clause B2 in any event. He complained that the WCT contained nothing that drew customers' attention to clauses B1&2, which were onerous and disadvantageous, in that they gave the Defendant the final say on outcomes from their server records regardless of what was shown on the consumer's computer. Furthermore, that right was granted regardless of whether the records were correct or not. Secondly, Mr Sheahan asserted that clause B2 gave a unilateral right to the Defendant to avoid the whole bet which created an imbalance of bargaining power and led to his assertion that there was inadequate signposting of these clauses. He also complained that the WCT were closely typed and these clauses were buried in other materials. Further, in relation to the CRA and the duty of fair and transparent dealing, he asserted that, if the terms were incorporated, they were unenforceable because they failed the significant imbalance test when considering the rights and obligations of the parties and were to the Claimant's detriment. The Defendant was the only one who could unilaterally determine the outcome of a win and avoid its own liability. The clause limited the Claimant's right to challenge the result with what she had been shown on screen and there was no provision to determine whether the RNGS or the records on the server were right or wrong. He complained that this take it or leave it approach was unfair. He referred to the correspondence with the Gambling Commission and the letters from Red Tiger, who hosted the Game. They admitted that the pot ID's had been incorrectly mapped to the wrong Jackpot symbols on the 1st of September 2020 so that the Daily Jackpot and the Monster Jackpot were swapped. Mr Sheahan commented that other clauses in the WCT referred specifically to human errors distinguishing them from system errors and submitted that Red Tiger's error was a human programming error not a system error and therefore was not caught by the scope of clause B2 because it did not state expressly that it covered human errors. He asserted Red Tiger failed to do adequate testing. He referred to the Rules and specifically to the clause in the recital to Part B that said that if there was an inconsistency between the Rules and the terms and conditions the Rules prevail. Then referring to the Rules he relied upon the text under the heading Jackpot Game which stated: "spin the jackpot wheel to determine which jackpot tier will be one". He asserted that, on its true construction, that Rule meant that the Jackpot wheel shown on screen determined the Jackpot win and that was undoubtedly the Monster Jackpot for this Claimant. Therefore, he sought summary determination and summary judgment.
various times including in 2016. He gave no evidence that any player was asked at any later stage to re-confirm agreement to the WCT.
vast majority of people in England and Wales. It could abolish debts, feed families, buy houses, pay for private medical care and many other vital matters in life. I infer that, like the majority of the population, the Claimant hoped and maybe dreamed of winning over £1 million. So, when she did so, on 18.10.2020, and when that sum was then taken away from her, that cannot properly or fairly be characterised as a "fairly minor display issue" and it is wrong to assert that the Claimant has "not been negatively impacted".
vice versa errors, namely where consumers were shown they had won the Daily Jackpot but in had in fact won the Monster Jackpot according to the RNGS and no evidence was provided at all about the vice versa errors, if any. Nor did he inform the Court about what the Defendant had done in relation to each of those consumers' wins.
The Parties' submissions
v MGN Limited [2001] EWCA Civ 1279, para. [23] per Hale LJ as she then was; Goodlife Foods v Hall Fire Protection Limited [2018] EWCA Civ 1371, at para. 35 per Coulson LJ; and Foster J in Green v Petfre (Gibraltar) Limited [2021] EWHC 842 (QB), at paras 166 to 172. As to clause B1, its effect is to make the Defendant's server records (which the consumer was not shown) determinative, trumping what the consumer was shown on her screen. B1 ignores the degree of the discrepancy, the degree of fault for the discrepancy and applies even though the consumer has no knowledge of whether there was an error or discrepancy. As to clause B2 the Claimant submitted this clause covered errors caused by the Defendant's negligence or fraud or inefficiency and is very wide. It ignores the degree of error or fault or the method of error and entitles the Defendant to avoid the bet altogether even in cases where, like the Claimant, the consumer has won a Jackpot according to the RNGS, albeit different from the one shown on screen. The Claimant pointed out that the Defendant took no steps to bring these crucial clauses to the Claimant's attention, either for their predecessors, or for them after they were introduced in August 2020. Nor were they sufficiently signposted by positioning, by putting them in bold and in capitals or by giving proper headings on B1&B2. The Defendant did not highlight that the consumer's screen was irrelevant to the result or make clear that the consumer's bet could be avoided altogether if the Defendant had made an error. The Claimant asserted B1&B2 were buried on page 21 of 45 pages of closely typed text.
verbal submissions the Claimant accepted that the 2020 WCT were generally incorporated into the contract when she played on 18.10.2020 so there was no issue relating to general incorporation. However, she maintained her submission that clauses B1 and B2 were not incorporated because they were unusual and/or onerous and were not signposted or brought sufficiently to her attention. She submitted that the Rules governed the Jackpot Game and that the Jackpot Game spin of the wheel was determinative, as described. It was materially misleading to the Claimant for the Rules to state that she should "spin the jackpot wheel to determine which of the offered jackpot tiers will be won" in the light of the Defendant's admission in Mr Padgett's 2nd witness statement that in fact this did nothing of the sort and the result had already been predetermined by the RNGS when she had clicked at stage one of the Game. The Claimant submitted that clause B2, which entitled the Defendant to avoid liability, was unfair when she had already won a Jackpot. The entitlement to avoid liability only arose, on the facts admitted by the Defendant, because of their own error in coding in relation to the onscreen information. Clause B2, entitled the Defendant to avoid any payout in this case, even when they admitted that the Claimant had won (on their case) over £20,000. The Claimant relied on the fact that the Defendant had chosen not to include a verification clause in their terms and conditions. The root of the problem created by clause B1 was that the effect of the clause made the whole system not "WYSIWYG": what you see is what you get. Consumers expect, when playing online, that what their screen tells them is correct, true and reliable. A parallel is to be drawn with a gambler at a casino playing roulette. If she bets on 13 and the ball rolls round and stops on 13, the player does not expect to be told: "ah, sorry, what you have just seen is not what you get, in fact the computer says that ball is on number 43". The Claimant submitted that clause B2 put all the risk for the Defendant's errors onto the Claimant's shoulders. The risk of software errors, of inadequate testing of what is shown on screen, the risk of any error by the Defendant, however gross, is all avoidable by the Defendant under clause B2, by allowing all such bets to be voided. No error by the Claimant permits the Claimant to avoid liability, so the clause is onerous and unfair. The Claimant submitted that the facts of Parker (I will come to that case below) are not similar to the facts of this case. In Parker the gambling company relied on its game procedures and the correct win which was shown on the consumer's screen: two flashing number "15"s circled in green (as distinct from the two not flashing, not circled, number: "1"s). The screen did not show a win of £1 million, it showed a £10 win. The game procedures were clear, they stated (see para. 10 of the judgment of Jay J.):
"10. … If You match a number from the WINNING NUMBERS Section
to a number in the YOUR NUMBERS Section, the two matching numbers will turn white and flash in a green circle indicating that you have won the Prize for the matched YOUR NUMBERS. When You have revealed all numbers and Prizes a message will appear at the top of the Game Play Window indicating the amount You have won, if any. The word 'FINISH' will appear underneath the message. You must select FINISH to complete
the Game."
The Claimant in the case before me submitted that, in contradistinction to Parker, her screen showed the wheel spinning and then it stopped with the win arrow pointing to Monster Jackpot which lit up and showed over £1 million in winnings.
v Camelot UK Lotteries Ltd [2023] EWHC 800 (KB) and the Court of Appeal's decision reported at [2024] EWCA Civ 185 (Parker). The Defendant relied on the judgment of Andrews LJ in Parker to assert that the terms and conditions were incorporated in the WCT by clicking the tick box on registration and the forward amendment clause probably included in the original terms (which had been lost). As to the submission that clauses B1 and B2 were either onerous or unusual, the Defendant accepted the legal principle but rejected that it applied to these clauses. The Defendant denied that the clauses created an imbalance in rights. In the skeleton the Defendant complained that it was unclear how the Claimant put her case but stated that it would answer in verbal submissions. As to the CRA, the Defendant complained it was unclear how the Claimant put her case but relied on the guidance in National Commercial Bank Jamaica Ltd v NCB Staff Association [2024] UKPC 2 at para. 32 and Lewison on Contractual Interpretation. The Defendant submitted that its terms were transparently drafted and presented, were clear and not ambiguous. All the terms were incorporated, they were not onerous or unusual and that the Defendant had a legitimate interest in correcting erroneous bets. The Defendant asserted there was nothing unfair about a game of chance being determined by the RNGS. Indeed, the Court of Appeal in Parker confirmed the decision of the judge at first instance who accepted this. Nor is there anything unfair in clauses B1&B2 which ensure that only winning plays produce payouts rather than plays with errors. The Defendant relied on the judgment of Andrews LJ in Parker at para. 61 to the effect that the Defendant had a legitimate interest in ensuring that payment was only made on valid wins and that the wins were commensurate with the odds advertised on the face of the Game procedures. The Defendant asserted that the Claimant was not irrevocably bound by the WCT. She chose when to play and so chose when to be bound. She had opportunity to become acquainted with the terms whenever she wanted because they were online for nine years before her play. As to the Rules, the Defendant submitted that they were mere instructions how to play the game, mere entertainment guides and, relying on the failure of the Claimant in Parker who advanced a similar argument and the judgment of Mr Justice Jay, at para. 76 at first instance, asserted that no reasonable player could suppose that the game procedures defined the limits of the contractual documentation. The Defendant denied that the Rules were inconsistent with clauses B1 and B2. The Defendant submitted that the Rules were entertainment features whereas clauses B1 and B2 stipulated the outcomes, how they were determined and what occurs where there is a discrepancy between the RNGS outcome and animations on computer screens. The provisions work in harmony and the ordinary and natural construction is that the Rules tell customers how to play and how to win prizes by doing so, but in the event of any discrepancy between the result displayed and the Defendant's records, the latter will prevail and if there is a system or communication error relating to the displayed result, then the Defendant will not be liable for the error.
verbal submissions the Defendant highlighted the common ground as follows: the Claimant opened an account and agreed to the terms; subject to sign posting, the 2020 terms apply; the outcome was determined by the RNGS and needed to be consistent with the return to player percentage and there was testing to ensure the payout percentage was correct. Although the RNGS needed testing and there was no evidence about how it worked the Claimant did not challenge that the RNGS produced a Daily Jackpot result on her play. Therefore, it was not disputed that there was an error affecting the Claimant's display on screen which did not affect the RNGS outcome. So, the Claimant does not challenge the decision of the RNGS. Therefore, it was common ground that the prize win was £20,000.
validating wins. The Defendant had sympathy with the Claimant in view of what she had seen on her screen but this was not a valid win. The Defendant was not taking away from the Claimant what she had genuinely won. It was an error because she was entitled to a win consistent with the RNGS product. As for incorporation the Defendant submitted that the terms were not difficult to follow. Click wrap had been decided in Parker to be a sufficient incorporation method. Clause B1 was not onerous to gamblers and the same approach was used in the terms in Parker. Neither at first instance nor in the Court of Appeal in Parker did the court consider the clauses stating that the result was determined by a RNGS were onerous or unusual. The Defendant relied on para. 35 of the judgment of Andrews LJ in Parker to the effect that games procedures which state that: the outcome of a play is predetermined by the computer system at the point of purchase; the player is not required to exercise any skill and the result is subject to a validation requirement, are explanatory in nature and do not impose any burden on the player or deprive them of a prize to which they would otherwise be entitled. The terms and conditions require and ensure that money is only paid out for a valid prize win and there is nothing onerous or unfair about that. As to clause B1, the second sentence related to discrepancies and merely stated that the records were definitive. This was not a conclusive evidence clause. The RNGS results prevailed over what shown on screen. The same occurred in the Parker case. As to clause B2 and errors, it merely provides a mechanism for dealing with errors ensuring that the Defendant does not pay prizes which have not been won. It is neither unusual nor onerous. The Defendant relied on the judgment of Andrews LJ in Parker at para. 36 to the effect that such rules safeguard the trader's payout against fraud and are designed to ensure that customers do not receive prizes they have not in fact won. The Defendant relied on para. 16 of the judgment of Ellenbogen J in Longley (see below) to submit that it was not unfair to include a clause which avoided paying out windfalls. Turning to enforceability, the Defendant complained that the specific provisions of the CRA were not set out in the Claimant's pleadings but accepted they were set out in the Claimant's skeleton and were relied on orally and the CRA required Courts to consider the Act in any event. The Defendant stated that the Claimant was asking for summary judgment on the pleaded claim. When I raised in discussion that I had no expert or other evidence about what was and what was not usual or unusual, from any witness, the Defendant submitted that the previous decisions were sufficient to give guidance. (Defence counsel recalls asserting that the Defendant would rely on evidence at trial but I do not recall that assertion). The Defendant asserted that S.57(4)(d), the provision relating to unenforceability of clauses excluding rules of evidence or procedure, did not apply. Clause B1 sentence 2, relating to discrepancy, did not state the Claimant cannot check the result of the RNGS in the records. The records were not in dispute in any event. The clause merely stated that the records prevailed, not the screen display. If the Claimant had wanted to challenge the records on the server she could have done so. There was no equivalence to the Gas Meter example. Also, the Defendant asserted that if one part of clause B1 was unenforceable then the two sentences were severable and separate, the one relating to the determination of outcome by the RNGS and the other relating to the server records being decisive. The Defendant submitted that in previous cases the Courts had found a clause similar to B2 to be fair. It was not detrimental to the Claimant, nor contrary to good faith, for the Claimant not to be paid out winnings which she had not won. During submissions I asked defence counsel how it could be fair for the Defendant to be entitled to avoid a bet based on its own error in software programming where the consumer had in fact won the bet, if the Rules are correctly so construed. I asked whether the Defendant was in effect abandoning the pleading in paragraph 19.2 of the Defence that they had avoided the bet in this case. The Defendant then chose to abandon the last five words of that part of their pleading. In relation to paragraph 2 of schedule 2 of the CRA (clauses excluding non-performance or inadequate performance limitations) the Defendant submitted that it was not inappropriate to be able to avoid the bet under clause B2 for the Defendant's error because the Claimant did not have a right to the Monster Jackpot. In relation to the Rules, the Defendant submitted that they were not inconsistent with clauses B1 and B2. The Defendant relied on Lewison on Interpretation of Contracts in relation, generally, to how inconsistencies are resolved or identified. The Defendant submitted that only if there is an irreconcilable discrepancy does an inconsistency arise. The Defendant further submitted that the Rules set out how to play the Game, they were concerned with entertainment but the outcome was determined by clause B1. The Rules did not determine the outcome and that was the way that the interaction between these two provisions should be resolved. As for interpretation of clause B2 the Defendant submitted that the Claimant's argument that "system errors" did not include human error was far too narrow because all these matters were connected. There was a group of related hardware and programmes and these were adapted and maintained by human beings, therefore "system errors" covered any errors within the system whether created by humans or otherwise. An interpretation that human errors were not covered by the terminology "system errors" would give an unnatural meaning to the words. In relation to the contra proferentem rule, which is enshrined in the CRA, the Defendant submitted it was only triggered by ambiguity and that depended on the context, but that there was no genuine ambiguity in this case.
The Written Contract Terms (WCT)
version I was given was on paper. The Rules were printed and exhibited to David Sheahan's witness statement dated 27.9.2024 and consisted of 3 pages. The full WCT were a combination of the Rules, the Terms of Use and multiple other separate documents.
The Rules
"HOW TO PLAY THE WILD HATTER
…
Gamble wheel
The red section displays the exact chance of losing. If the player commits to pressing the Gamble button, the pointer within the wheel will spin. If the pointer lands in the green area, the player wins the highlighted prize which they chose in advance. If the pointer lands on the red area the Gamble is over and the player returns to the slot game
…
Spin the Reels
Click the Spin button to spin the reels.
…
Jackpot Game
Win one of the offered jackpot tiers when three or more jackpot symbols appear on the reels or the jackpot is triggered by a game feature. Spin the jackpot wheel to determine which of the offered jackpot tiers will be won. The size of the segments on the jackpot wheel do not correlate to the odds of winning each jackpot tier represented. The chances of winning a jackpot increase in correlation with the size of the stake played. The jackpot is triggered randomly and can be won by playing any of the linked jackpot games. To win the jackpot, the player is not required to make any decision other than to spin the reels. …" (My italics).
visible Monster Jackpot slice. I have not been shown a whole circular wheel, so I do not know whether there is only one Monster Jackpot pizza slice on the wheel. In any event, the question I must decide below is how these Rules are to be construed. Do they provide expressly that once the Claimant has spun the Jackpot Wheel on her screen, it is that which she is watching which determines what she will win? If so, the determinant of the win is the Jackpot Wheel displayed in screen.
The Terms of use/Terms and Conditions
Terms of Use – Part A
Vegas", which, had a player read all of the WCT, included the Game. Clause 2 stated that by visiting the website, registering and using the services the player agrees to be bound by: the Terms and Conditions; the Betting Rules (hyperlinked and not included in the evidence before me); the Regulatory information (hyperlinked and not included in the evidence before me); and "all such other of our terms and conditions, rules or policies as they relate to any applicable Services (e.g. rules for a particular game)…" Clause 2.2 goes on to state that when a player uses any "Additional Gaming Services", which I remind myself included the Game, the player agrees to be bound by the terms and conditions associated with each including the terms and conditions of third party service providers (which were not provided to me and could have been substantial), where indicated. The list included "Games and Vegas" (not hyperlinked) and other games (which were hyperlinked). If that was not complicated enough clause 2.3 stated that all of the terms and conditions (not capitalised), rules and policies referred to in clauses 2.1 and 2.2 were collectively called "Terms of Use" (capitalised first letters). Having read all that I doubt that any members of the public wishing to use the Site would understand the full scope of the terms which governed their game, let alone be able to find them all and read them, whether in a reasonable period of time or at all. This was a complicated web of multiple documents.
Amending the Terms of Use
via pop up web messages at login and that customers would be asked to agree to them to continue using the website and that without agreeing customers would be unable to proceed. I note here that the Defendant produced no evidence that such occurred for the Claimant.
Winnings
Errors
"16. Errors & Suspected Errors
16.1. Paddy Power makes every effort to ensure that no errors are made in prices offered or Bets accepted. However, human and/or systems' error may occasionally result in errors.
16.1.1. Paddy Power reserves the right to correct any obvious errors and to
16.2. In the case of any blatant errors in prices transmitted (including for example where the price being displayed is materially different from those available in the general market and/or the price is clearly incorrect, depending on all of the circumstances), Bets will be settled at the correct price at the time of acceptance (or the Starting Price in the case of horse-racing, whichever is the greater). If a Bet is accepted by us on an event where offering a price on the event itself (rather than the price) was in error, the Bet will be
"16.4. In the event of errors relating to the random number generators used in certain of the Services, Paddy Power reserves the right to
The case before me does not involve any assertion of any error by the RNGS (remember that means random number generator software) but did the mapping error "relate to" the RNGS? The Defendant did not seek to rely on this term. It is instructive in that it involves the Defendant impliedly asserting that it can determine in some way when the RNGS makes errors. I have no explanation in the evidence before me of how that would be done. It is noteworthy that clauses B1 and B2 prevent consumers from challenging the outcome from the RNGS so the imbalance is apparent.
"16.9. If you are incorrectly awarded any winnings as a result of (a) any human error; (b) any bug, defect or error in the Software; or (c) the failure of the relevant Games product or the Software to operate in accordance with the rules of the relevant game, then Paddy Power will not be liable to pay you any such winnings and you agree to refund any such winnings that may have been paid to you as a result of such error or mistake."
The Conditions in Part B
Vegas" and the words expressly state that the terms and conditions set out in "this Part E" (which is probably a typing error, but is confusing for customers) as updated from time to time govern the relationship between the consumer and the Defendant when playing on the "Games tab" or the "Vegas tab" on the Site. Both parties agree that these terms were part of the WCT between the parties in this case, subject to whether clauses B1 and B2 were properly incorporated at all due to lack of signposting and whether they were unenforceable under the CRA. Both agree that the Game was played under one of these tabs. The preamble to Part B self describes as "these Conditions" (initial capital). The full wording of the preamble is as follows:
"Part B – Games and
The following terms and conditions made available in this Part E (as updated by us from time to time in our discretion) ("these Conditions") shall govern the relationship between you and us in relation to all play on the 'Games' tab (https://games.paddypower.com) and the '
Paddy Power reserves the right to amend these Conditions at any time, as may be required for a number of reasons including (without limitation) for commercial reasons, to comply with law or regulations, to comply with instructions, guidance or recommendations from a regulatory body, or for consumer service reasons. Where we wish to make material changes to these Conditions, we will give you as much prior notice of such changes as is reasonably practicable but in any event customers will be notified of material changes before they come into effect. Any such revision will be binding and effective from such date as is specified in such notice. Your continued use of the site will be deemed to be your acceptance of any changes we may make. The date on which the document comprising the then current Conditions came into (or will come into) force will be as stated in the date contained at the top of the Conditions page. Please check these Conditions frequently for updates.
In addition to accepting these Conditions, you acknowledge and agree that the terms and conditions of www.paddypower.com ("the Website"), available at Part A above and as may be amended from time to time in our discretion ("Terms and Conditions"), apply to all eventualities relating to Games not covered by these Conditions. The Terms and Conditions contain important provisions applicable to your use of the Games Website including eligibility criteria requirements and limitations on our liability which apply to your use of the Website and the Games Website.
Further, you acknowledge and agree to be bound by any additional rules which appear within a Game, including within a Game's "Game Info" or "Help" webpage ("Rules"), including rules relating to minimum/maximum bets, maximum payouts, disconnections and system malfunctions. The Rules may also contain instructions on how to play and the return-to-player ("RTP").
Please familiarise yourself with these Conditions, the Terms and Conditions and the Rules before you use the Games Website or play a Game. These Conditions represent a legally binding agreement between you and us. In the event you do not agree or do not understand any of the terms within, please discontinue your use of the Games Website immediately. In these Conditions, "we", "us", or "our" refers to
In the event of any inconsistency between these Conditions, the Terms and Conditions or the Rules, unless otherwise stated, to the extent of the inconsistency, the Rules shall prevail, followed by these Conditions and followed thereafter by the Terms and Conditions." (I have italicised the last paragraph).
various numbered clauses. The relevant ones relied upon by the Defendant are as follows. I shall call them B1 and B2.
"RANDOM NUMBER GENERATOR
1: You fully accept and agree that random number generator ("RNG") software will determine all outcomes of Games on the Games Website. In the event of a discrepancy between the results displayed on your computer and a Game's records on our server, our records shall be regarded as definitive.
ERRORS
2: In the event of systems or communications errors relating to the generation of any result, bet settlement or any other element of a Game, we will not be liable to you as a result of any such errors and we reserve the right to
B1: RNGS outcome determinator and definitive evidence of result
B2: Exclusion of liability for systems or communications errors
Findings of fact
various tiers of jackpot as it span. The wheel then stopped with the win arrow pointing to the Monster Jackpot. Her winnings were shown on screen as over £1 million. Soon thereafter the screen changed and she was only paid out just over £20,000. The Claimant complained asserting that what she saw determined what she had won. Later the Defendant discovered that the RNGS outcome (which was Daily Jackpot) was not properly mapped in the Defendant's supplier's software so as to display the correct pizza slice on the screen. It should have been mapped to Daily Jackpot but was mapped to Monster Jackpot instead. This had occurred during human software mapping works done by the supplier (or a sub-contractor) carried out on 1.9.2020 and had affected 14 plays over the subsequent 48 days. No evidence was provided to me about whether the reverse had also occurred: namely a player had won the Monster Jackpot but was shown only to have won the Daily Jackpot on screen.
vast majority of players, the hope or dream of winning £1 million was exciting and important. As I stated above, for the majority of members of the public that would be a life changing sum. I also infer from the Claimant's timely complaint and all the circumstances surrounding online gambling and I find as a fact that when the Claimant entered the contract with the Defendant and when she played the Game she expected and understood that what she saw on screen would be what she would get: win or lose. I infer and find as a fact that the Claimant did not see clauses B1 or B2 when she made the relevant contract or at any time between 2011 and 18 October 2020. I also infer that at the time the contract was entered, it was the objective of the Defendant, as a large and reputable provider of online gambling, in all the factual circumstances and from their WCT clauses relating to "errors", that the Defendant objectively intended to provide its customers primarily with: what you see is what you get games.
The Law
Summary judgment and striking out
v Banner Jones [2021] EWCA Civ 7 at para. 7. The principles applicable to summary judgment applications were set out in the well-known guidance in EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) by Lewison J. at para. 15.
"15. … the court must be careful before giving summary judgment on a claim. The correct approach on applications by Defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain
ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products
iii) In reaching its conclusion the court must not conduct a 'mini-trial': Swain
iv) This does not mean that the court must take at face
v Stiefel [2021] EWHC 1045 (Comm), at paras 21 to 22:
"[21] The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.
[22] So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up."
v Techtrek India Limited [2020] EWHC 539 (Ch) at para. 11:
"it is well-established that if the applicant adduces credible evidence in support of its case, the evidential burden shifts to the respondent and the respondent must prove some real prospect of success or some other reason for a trial."
Construction of the contract
v Britain [2015] UKSC 36, between paras. 15 and 23, as follows:
"15. When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to "what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean", to quote Lord Hoffmann in Chartbrook Ltd
16. For present purposes, I think it is important to emphasise seven factors.
17. First, the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a
18. Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is a specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve.
19. The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made. Judicial observations such as those of Lord Reid in Wickman Machine Tools Sales Ltd
20. Fourthly, while commercial common sense is a
21. The fifth point concerns the facts known to the parties. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision, to take into account a fact or circumstance known only to one of the parties.
22. Sixthly, in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention. An example of such a case is Aberdeen City Council
23. Seventhly, reference was made in argument to service charge clauses being construed "restrictively". I am unconvinced by the notion that service charge clauses are to be subject to any special rule of interpretation. Even if (which it is unnecessary to decide) a landlord may have simpler remedies than a tenant to enforce service charge provisions, that is not relevant to the issue of how one interprets the contractual machinery for assessing the tenant's contribution. The origin of the adverb was in a judgment of Rix LJ in McHale
v NCB Staff Association [2024] UKPC 2, at para. 31 et seq:
"31. The modern approach of the common law to the interpretation of contracts has been clear at least in its outline since the judgment of Lord Wilberforce in the House of Lords in Prenn
32. First, the court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement, having regard to the contract as a whole. Secondly, in so doing the court has regard to the factual background known to the parties at or before the date of the contract, but excluding evidence of prior negotiations. Thirdly, where there are rival meanings of the relevant contractual provision considered in its context, the court can give weight to the implications of the rival meanings, by considering which construction is more consistent with business common sense. But, fourthly, the court does not depart from an interpretation of the natural language of words just because the contractual arrangement has proven to be a bad bargain for one of the parties. Fifthly, the weight to be attached to the precise words used in the contract will
I will not rephrase any of the above, I simply will apply those principles.
Incorporation of terms into the contract
v Shoe Lane Parking [1971] 2 QB 163, is a good starting point. In that case, the ticket the consumer bought referred to the conditions, which could be found on a notice on a pillar opposite the ticket machine. In the middle of condition 2, there was a purported exclusion of liability, not only for damage to the consumer's car, but also for injury to the consumer "howsoever caused". The Court of Appeal decided that such a clause was unusual and onerous and the case was decided on the basis that it had not been fairly brought to the notice of the consumer.
v Stiletto Visual Programmes Limited [1988] 1 All ER 348. SVP requested and was sent 47 stock photo transparencies, on loan, by a new supplier, IPL. SVP wanted to use them for a presentation and then return them. Written terms were enclosed with the photos in a jiffy bag which SCP probably did not read. Those terms included a charge of £5 per day for photos not returned within 14 days. SVP put them aside and forgot about them. Calls were made but not acted upon. ILP sent an invoice for £3,784 when they were finally returned. SVP refused to pay because they asserted the charge was exorbitant. LIP sued and won at trial. On appeal the Court of Appeal held that the daily hold over charge was onerous and unusual and so had to be signposted in a way which reasonably would bring it to the consumer's attention. The case was decided on the basis that sufficient notice was not given. Dillon LJ ruled thus from p350J onwards:
"The question is therefore whether condition 2 was sufficiently brought to the Defendants' attention to make it a term of the contract which was only concluded after the Defendants had received, and must have known that they had received the transparencies and the delivery note. This sort of question was posed, in relation to printed conditions, in the ticket cases, such Parker
'Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.'
Then in Thornton
'I agree with Lord Denning MR that the question here is of the particular condition on which the Defendants seek to rely, and not of the conditions in general. When the conditions sought to be attached all constitute, in Lord Dunedin's words [in Hood
Counsel for the plaintiffs submits that Thornton
Condition 2 of these plaintiffs' conditions is in my judgment a
Bingham LJ ruled thus, starting at page 353a:
"English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness. Many examples could be given. Thus equity has intervened to strike down unconscionable bargains. Parliament has stepped in to regulate the imposition of exemption clauses and the form of certain hire-purchase agreements. The common law also has made its contribution, by holding that certain classes of contract require the utmost good faith, by treating as irrecoverable what purport to be agreed estimates of damage but are in truth a disguised penalty for breach, and in many other ways. The well-known cases on sufficiency of notice are in my
Further, having reviewed the authorities at p 355J Bingham LJ observed that:
"The more outlandish the clause the greater the notice which the other party, if he is to be bound, must in all fairness be given."
Finally, Bingham LJ ruled at p 357e that:
"The tendency of the English authorities has, I think, been to look at the nature of the transaction in question and the character of the parties to it; to consider what notice the party alleged to be bound was given of the particular condition said to bind him; and to resolve whether in all the circumstances it is fair to hold him bound by the condition in question. This may yield a result not
v MGN Limited [2001] EWCA Civ 1279. The terms have been described as imposing a high hurdle by Fraser J. in his long judgment in Bates v Post Office [2019] EWHC 606, at 979) but it all depends on the context, the facts and the nature of the contract. As Gross LJ stated in Goodlife Foods v Hall Fire [2018] EWCA Civ 1371, at para 101, there is a sliding scale. Various terminology has been used for the scale. The more unusual, unreasonable, outrageous or onerous the clause is, the more necessary it is to bring it to the notice of the consumer.
Similar cases
v Cochrane [2012] EWHC 1290 (Comm) Mr David Donaldson QC sitting as a Deputy High Court Judge considered similar provisions against the predecessor to the CRA, (the Unfair Contract Terms Act 1977). A spread betting bookmaker claimed summary judgment in respect of a consumer whose account was entered and played with by a child who, by playing on the computer, effected it a number of "trades" which caused tens of thousands of pounds worth of loss on the account. Spreadex sued on a clause that deemed the consumer to have authorised all Trading. The consumer was required to agree to a set of Terms and Conditions in a "click-wrap" process. Summary judgment was applied for by the company and refused. The deputy held that the term did not form part of the contract, but even if it did, the clause fell foul of the consumer protection provisions preventing reliance upon unfair terms. At para. 21 he ruled:
"21. A further, and compounding, factor to be taken into account is the manner in which the clause was incorporated into any contract (if there was one). As I described earlier, the potential consumer was told that four documents, including the Customer Agreement, could be
v Petfre (Gibraltar) Limited [2021] EWHC 842 (QB), Mr Green played for 5.5 hours and won over £1.7 million of chips which the supplier refused to honour. Mr Green applied for summary judgment and succeeded despite an exclusion of liability for errors clause and other clauses relied on by the gaming company. At paras. 166 to 172, Foster J. ruled as follows:
"Conclusions on the Question of Incorporation
166. The observations made above when analysing the documents lead me inexorably to the conclusion that, whatever their true meaning, none of the terms seeking to exclude liability was sufficiently brought to the attention of Mr Green so as to be incorporated in the gaming contracts he entered with Betfred.
167. As explained, this is the result of the combination of inadequate signposting to these significant exclusions of liability, and the failure to highlight the meaning and effect intended. The unhelpful, often iterative presentation in closely typed lower-case or numerous paragraphs of capital letters meant that the relevant clauses were buried in other materials. These features are exacerbated by the fact that the player must click through and scroll online, searching out what appears to be relevant to him. I do not go so far as to say that it was fanciful to expect that Mr Green would access the Terms and Conditions at all (as in the Spreadex case), but having accessed the Terms and Conditions and then the EULA, it is quite unreasonable to expect he would have found and noted the importance of the key clauses relied upon. This is overwhelmingly obvious in the case of the Game rules where it is highly unlikely, in my
168. Betfred rely on acceptance of the EULA terms in 2013 some 4½ years before Mr Green actually played the Game (it had been in operation only for hours when the events in issue happened). I do not hold that it is, without more, impermissible to bind a regular player in this way. However, the commensurate burden upon the trader who wishes to exclude liability is all the greater. In all the circumstances it is almost impossible that Mr Green was reasonably aware, even in 2013, that the Terms and Conditions and the EULA contained clauses that purported to support a refusal to pay his winnings in these circumstances. In real terms it is fanciful to suggest that what he last saw in the EULA in 2013 was sufficiently brought to his attention for the purposes of the gaming session on the newly introduced Game in January 2018 absent a reminder, and the more ready availability of the EULA itself.
169. For reasons which have been given in relation to the context of the clauses in issue, I agree with the submission of Mr Couser that each of the clauses which purports to allocate the burden of the risk of an undetected and undetectable defect to Mr Green, are inadequately drawn to his attention in order to do so.
170. The mechanism by which acceptance of the Terms and Conditions is signalled is known as a "click wrap", and no issue arises but that Mr Green accepted by clicking on the relevant button. He sues on one of the clauses of the terms and conditions and has never sought to say that he is not bound by at least some of the Terms and Conditions set out.
171. It is important to say that I do not make any finding that acceptance of terms by means of a "click wrap" is inadequate to form a binding contract that contains limitations to or exclusions of liability. Nor, if adequately drafted and signposted, that, even in the context of an online betting facility, liability may be excluded for events such as occurred in this case."
v PPB [2022] EWHC 977, Ellenbogen J. was dealing with a telephone gambling claim in which the consumer was suing for over £250,000. He had placed telephone bets on horse races. He placed a £1,300 each way bet over the phone. The bet needed human authorisation and during the internal phone calls the bet was misstated between staff as £13,000 each way. This was approved internally and a staff member, also in error, spoke to the consumer and recited authority for £13,000 each way and he agreed, understanding that the higher sum was in play. That bigger bet was recorded in the paperwork, £26,000 was debited from his account. His horse won. His account was credited with the winnings. The staff member who authorised it soon realised he had authorised over his authority and the winnings were deducted back from the consumer's account. PPB relied on their terms and conditions in particular clause 16 about errors which entitled them to correct obvious errors and void bets placed where such occurred. Ellenbogen J. found that there was no meeting of minds. Bookmakers do not make counter offers increasing customers' bets. When considering transparency and significant imbalance under the CRA 2015 the judge did not consider that clause 16 correcting erroneous bets created an imbalance which was significant and so it was not unfair. Depriving the consumer of what was in effect a windfall from a bet made in error was not punitive.
v Camelot UK Lotteries [2023] EWHC 800 (Parker). In that case Jay J. dismissed an application for summary judgment by a consumer who asserted that she had won £1 million on the national lottery because of seeing two matching number "1"s on her screen which were not lit up. The consumer relied on the words on the bottom of her screen which said "match any of the winning numbers to your numbers to win prize". As I explained at para. 31 above, the relevant games procedures stated that the winning numbers would be the numbers which matched and would be highlighted and circled in green. Her actual winning numbers ("15"s) were so highlighted and she was shown her £10 win, but she had spotted two other numbers ("1"s) which were not flashing or highlighted and asserted that because they matched she should have won £1 million. The errant number "1"s were a coding fault. Jay. J ignored various pleading points and concentrated on the parties' arguments (para. 29). As to incorporation of terms, at para.5 Jay J. noted that not only were they incorporated at the account opening but also: "The Defendant's contractual documentation is updated from time to time. Updates of any significance required acceptance by the Claimant by her ticking or clicking a button marked "Accept". At the relevant time, the Claimant was presented with a drop-down menu revealing a summary of the changes as well as complete versions of the new sets of provisions." Prize winning involved playing and then the consumer claiming the prize and validation of the claim. Clear headings in the rules of the game were given to the clauses for claiming and validation of the prizes. It was stipulated that players could only win one prize per play. It was stated that the result of instant win games was determined as the point the play was bought. A limitation of liability clause, with a clear heading, covering defects in the game was also prominent. There was a clause governing disputes and a definitions clause. The game procedures gave examples of screen shots and clearly described the way winning numbers would be displayed with green encirclement and flashing lights. The Judge dealt with the general incorporation of 3 sets of documents containing terms by the method of clicking an online screen box indicating agreement. He referred to Chitty on Contracts 34th edition para. 15-010 and ruled that the method of incorporation was valid. He then went on to consider the assertion that some terms were onerous or unusual and so needed signposting. He concluded that the game procedures, the win determination clauses and the validation clauses were not onerous or unusual. In para. 64 he explained that, read together, they meant that what was shown on screen might be different from the predetermined result when the play was made and the games procedures and the rules made it clear that the outcome was determined by the computer system as it appeared on the official list of wins and nowhere else. What mattered was that the result was not rigged. In particular, he ruled that:
"67. Furthermore, there can be nothing onerous or unusual about a game in which the definition of "Winning Play" is connected to what appears on the Defendant's official list and is "as predetermined by [the Defendant's] computer system". Clause 6.2(d) is unremarkable. However, clause 6.3(e) is not quite so straightforward. A Play may be declared invalid if there were an inconsistency between the outcome as displayed on the screen and the result as predetermined by the computer system. Strictly speaking, this clause could be invoked by the Defendant in a case where all the correct lights were flashing and the message proclaimed that the player had won £1 million, even after the finish button had been pressed. That would, of course, presuppose a major computer error. Under the Game Procedures, a £1 million win would indeed have been the outcome even if it were not on the official list, and those take priority over the IWG Rules. Even if the Defendant were to surmount this first difficulty, would it be able to declare the Play invalid on this counterfactual? Clause 6.3(e) has the "feel" of being unusual if not onerous in these hypothetical circumstances.
68. … On the facts of the present case, the final Game Play Window informed the Claimant that she had won £10 and that was also the result under the IWG Rules. The outcome "as displayed" (see clause 6.3(e)) was not that the Claimant had won £1 million. There was no conflict. The Defendant does not need clause 6.3(e) in order to win this application." (I have italicised one part).
"89. I am prepared to accept that some of these clauses may have created an imbalance, but (putting clause 12 to one side for the time being) I cannot accept the argument that there was a significant imbalance. The Defendant was fully entitled to explain to players the basic philosophy of this game: namely, that it was a pure game of chance, and the outcome is determined as soon as the play button is pressed. Assuming that the animations are enabled, the outcome will also be "predetermined" inasmuch as whatever the player does thereafter cannot make a difference. Furthermore, I agree with Mr Hinks that it was not one-sided to set out a
As for the validation clauses Jay J. upheld them as enforceable with the following reasoning:
"94. I consider that clause 12.1 did create a significant imbalance between the parties. Although the jurisdiction of this Court is retained (and Mr Hinks did not submit that clause 12.2 was an ouster of jurisdiction), it cannot be denied that the table is firmly tilted in the Defendant's favour, the Wednesbury test being a high burden for a player to discharge. Consideration must therefore be given to whether the Defendant has acted "in a manner or to an extent which is contrary to the requirement of good faith" in relation to this clause.
95. In my judgment, there was no want of fair and transparent dealing by the Defendant. Clause 12 was expressed fully, clearly and legibly, and there were no pitfalls and traps. As I have already said, the Defendant was fully entitled to have a
96. I would therefore uphold the final sentence of clause 6.1, and the whole of clause 12, on the basis that these provisions were not incorporated or applied by the Defendant in a manner or to an extent that was contrary to the requirement of good faith."
validation requirements were considered at para. 35:
" … These clauses are explanatory in nature; they merely set out what is required in order to achieve the entitlement to be paid the prize money. They do not impose any burden on the player, nor do they deprive them of a prize to which they would otherwise be entitled. They are rules which ensure that money is only paid out for
In two paragraphs, which were a warning to the industry about terms granting the trader the right to declare plays invalid in WYSIWYG circumstances, Andrews LJ stated:
"36. If one looks more specifically at Clause 6 of the IWG Rules, it contains the sort of provisions that one would reasonably expect to be there to safeguard Camelot against fraud, and allows them to check for themselves that the player has indeed won a prize. These provisions are designed to ensure that someone does not succeed in making Camelot pay them a prize which they have not in fact won. The only provision which gave the Judge pause for thought about whether it was onerous was Clause 6.3(e), which would entitle Camelot to declare a Play invalid if the outcome as displayed on the screen did not match the result as predetermined by the computer system.
37. I agree with the Judge that in certain hypothetical circumstances, questions might arise as to whether Camelot would be entitled to rely on that Clause, e.g. if in consequence of a major software error the final screen had signified (with flashing lights) that the player had won £1 million and that result was confirmed when they clicked the "Finish" button. That would be much closer to the situation in Green
The Court of Appeal did not accept the submission that to be properly incorporated it would have been necessary to make the consumer scroll through all the terms before being able to accept them and play. As to the issue of enforceability, Andrews LJ ruled thus:
"52. None of these terms was individually negotiated and so the issue was whether, contrary to the requirement of good faith, any particular term caused "a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" (see Reg 5(1) of the UTCCR). If so, that term would be regarded as unfair, and unenforceable against the consumer by
53. In paragraph 79 of his judgment, the Judge correctly directed himself as to the general principles governing the application of the UTCCR and the meaning of "significant imbalance" by reference to the speech of Lord Bingham in Director General of Fair Trading
54. Schedule 2 to the UTCCR sets out a non-exhaustive list of the types of terms which may be regarded as unfair. By Reg 6(1) unfairness is to be assessed by taking into account the nature of the goods or services for which the contract is concluded and by referring, at the time of its conclusion, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
55. Reg 7(2) is a statutory enactment of the contra proferentem rule of construction. It provides that "if there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail".
…
58. … Reg 7(2) is concerned with the construction of individual clauses and not with the re-ordering or disapplication of contractual provisions. He relied on the approach to section 69 (1) of the Consumer Rights Act – the identical provision to Reg 7(2) UTCCR – which was taken by Bourne J in R (Doneghan and others)
59. I agree with that characterisation."
Enforceability of terms in the contract
"CHAPTER 3
DIGITAL CONTENT
What digital content contracts are covered?
33 Contracts covered by this Chapter
(1) This Chapter applies to a contract for a trader to supply digital content to a consumer, if it is supplied or to be supplied for a price paid by the consumer.
(2) This Chapter also applies to a contract for a trader to supply digital content to a consumer, if—
(a) it is supplied free with goods or services or other digital content for which the consumer pays a price, and
(b) it is not generally available to consumers unless they have paid a price for it or for goods or services or other digital content.
(3) The references in subsections (1) and (2) to the consumer paying a price include references to the consumer using, by way of payment, any facility for which money has been paid.
(4) A trader does not supply digital content to a consumer for the purposes of this Part merely because the trader supplies a service by which digital content reaches the consumer."
Can a trader contract out of statutory rights and remedies under a digital content contract?
S. 47 Liability that cannot be excluded or restricted
(1) A term of a contract to supply digital content is not binding on the consumer to the extent that it would exclude or restrict the trader's liability arising under any of these provisions—
(a) …
(b) section 35 (digital content to be fit for particular purpose),
(c) section 36 (digital content to be as described),
(d) …, or
(e) ….
(2) That also means that a term of a contract to supply digital content is not binding on the consumer to the extent that it would—
(a) exclude or restrict a right or remedy in respect of a liability under a provision listed in subsection (1),
(b) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,
(c) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or
(d) exclude or restrict rules of evidence or procedure.
(3) The reference in subsection (1) to excluding or restricting a liability also includes preventing an obligation or duty arising or limiting its extent.
(4) …"
"Can a trader contract out of statutory rights and remedies under a services contract?"
S. 57 Liability that cannot be excluded or restricted
(1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 49 (service to be performed with reasonable care and skill).
(2) …
(3) …
(4) That also means that a term of a contract to supply services is not binding on the consumer to the extent that it would —
(a) …,
(b) …,
(c) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or
(d) exclude or restrict rules of evidence or procedure.
(5) …
(6) ….
(7) … "
"What are the general rules about fairness of contract terms and notices?
S. 62 Requirement for contract terms and notices to be fair
(1) An unfair term of a consumer contract is not binding on the consumer.
(2) An unfair consumer notice is not binding on the consumer.
(3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.
(5) Whether a term is fair is to be determined—
(a) taking into account the nature of the subject matter of the contract, and
(b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
(6) …."
"PART 2 UNFAIR TERMS
What are the general rules about fairness of contract terms and notices?
S. 63 Contract terms which may or must be regarded as unfair
(1) Part 1 of Schedule 2 contains an indicative and non-exhaustive list of terms of consumer contracts that may be regarded as unfair for the purposes of this Part.
(2) Part 1 of Schedule 2 is subject to Part 2 of that Schedule; but a term listed in Part 2 of that Schedule may nevertheless be assessed for fairness under section 62 unless section 64 or 73 applies to it."
"What are the general rules about fairness of contract terms and notices?
S. 69 Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail."
"SCHEDULE 2 Section 63
CONSUMER CONTRACT TERMS WHICH MAY BE REGARDED AS UNFAIR
PART 1 LIST OF TERMS
1 ….
2 A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.
…
20 A term which has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, in particular by—
(a) requiring the consumer to take disputes exclusively to arbitration not
covered by legal provisions,
(b) unduly restricting the evidence available to the consumer, or
(c) imposing on the consumer a burden of proof which, according to the
applicable law, should lie with another party to the contract."
v First National Bank plc [2002] 1 AC 481, Lord Bingham gave guidance on an earlier, similar provision at para. 17:
"17. A term falling within the scope of the Regulations is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith. The requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties' rights and obligations under the contract significantly in his favour. This may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty. The illustrative terms set out in Schedule 3 to the Regulations provide
Applying the law to the facts
Summary judgment application
Construction of the WCT
Construction of the Rules in the context of being part of the WCT
via her computer screen. Unlike the facts in Parker, in which the player could choose to turn the screen animations off, here the Defendant constructed the screen visuals to be permanent and to match the Rules.
visual wheel and the visual determination of the result. In my judgment, objectively, there was no ambiguity in the words of the Rules about what was going to happen. There was no ambiguity on screen either, unlike the facts of Parker. I consider that the words governing stage two, when read with the words in the Rules about stage one, clearly intended to bind the parties to the process which expressly stated that, by spinning the wheel shown on screen, the Claimant would have her Jackpot determined before her very eyes on the screen, understanding that the screen display was created by the Defendant's software. The process at stage two was stated and intended to be WYSIWYG: what she saw was what she would get.
validation of her win after the spin was over nor did they tie winning to any unseen RNGS output, server records or official winnings list to be consulted or checked before her win was determined. The Rules were simple and clear.
voids all plays" is dealt with above in the paragraph relating to amended pleading and points not taken at the hearing. In any event, without hearing any submissions on the meaning of these words, the software and hardware did not malfunction, it was programmed wrongly by a human being.
Construction of B1
various terms and conditions in various documents in addition to various game rules which were all amalgamated partly into one larger document, albeit it with other hyperlinked and non hyperlinked Rules and supplier documents as well. The redrafting at that time was clearly not complete or unitary. As I explained above when commenting generally on the "Terms of Use", the "Terms and Conditions", the "Conditions" and the Rules, the index does not cover any of the clauses in Part B and the headings in Part B are not of much, if any, assistance for a consumer seeking to read relevant clauses. Part B self describes as Part E and the clauses in Part B overlap with and clash with clauses in Part A. It is perhaps not so surprising then that inconsistencies between the Conditions in Part B and the Rules might have arisen. The Defendant also relied on para. 9.104 of Lewison in which a principle summarised by Lord Radcliffe is extracted from Karachiwalla v Nanji [1959] A.C. 581, to the effect that inconsistency is a desperate expedient. In two other cases, cited in footnotes 274 and 275, the author summarises that a clause should not be rejected unless manifestly inconsistent with or repugnant to the rest of the agreement. In essence what the Defendant relied on was the judgment of Akenhead J in RWE Npower Renewables Ltd v JN Bentley Ltd [2013] EWHC 978 (TCC) in which he ruled that (no page number provided):
"If it is possible to identify a clear and sensible commercial interpretation from reviewing all the contract documents which does not produce an ambiguity, that interpretation is likely to be the right one; in those circumstances, one does not need the 'order of precedence' to resolve an ambiguity which does not actually on a proper construction arise at all"
This ruling was upheld by Moore-Bick LJ [2014] EWCA Civ 150. Finally, the author suggested the approach was well summarised by Judge Stephen Davies in GB Building Solutions Ltd v SFS Fire Services Ltd [2017] EWHC 1289 (TCC); 172 Con LR 18, thus:
"In summary, the task for the court is to ascertain whether or not there is an
inconsistency (meaning a contradiction or conflict, whether a case of literal inconsistency or a case where two clauses cannot fairly or sensibly be read together) without adopting any predisposition for or against inconsistency being present. If there is an inconsistency then the order of precedence clause provides the answer."
visible outcome of the RNGS, which was first decided at the start of the play when the reels were first spun. That would contradict the actual wording of both stages of the Rules. There are three elements to this divergence: (1) the "what you see is what you get" approach, which is supported in the Rules and denied in B1; (2) consumer satisfaction which is provided by instant interaction in the Rules and overridden in B1; and (3) the commercial risk, which is on the Defendant's shoulders in the Rules and on the consumer's shoulders in B1. I consider that WYSIWYG is central to this Game. I consider that consumer satisfaction is commercially important to both contracting parties. I consider that allocation of risk is a matter of commercial choice and agreement but only when the parties have equal bargaining power. It could be allocated to one or the other party or split in some way related to the cause of the error creating the risk or the obviousness of it. So, a sensible commercial interpretation of where the risk should rest does not assist me in construction.
vice versa.
verification will determine the result (at least for big Jackpots) but chose not to do so.
The priority clause
Construction of clause B2
valid win "result" under the Rules (which was contrary to the RNGS "result"). The Defendant submitted that this clause excludes liability to pay out on the Claimant's wining result, whichever it was. It potentially allows the Defendant to avoid paying, not only the £1 million, but also the £20,000. Both related to the generation of "any result". Neither party sought to submit differently.
via Red Tiger. This person mis-mapped the software which affected the "result" shown on screen. The issue between the parties was whether this human error was included in the scope of the words "systems or communications error" on the proper construction of the clause. In the context of Part B and online gaming, I consider that the natural interpretation of "systems and communications error" could cover errors in the systems caused by the humans who programme them or could be restricted to hardware and software errors more remote from and not directly related to human errors. So, B2 could potentially have different meanings for the term "systems and communications errors", the one including human errors and the other not including them. All systems and software are created, maintained and updated by humans so all resulting errors in systems and communications could eventually be traced back to humans. But some are better described as equipment errors, for instance broken or worn out equipment. Others could be software clashes, or incompatibility which may be more remote from direct human errors. Others could be power outage errors. The list is endless.
"8. ERRORS
In the event of systems, communications or human errors relating to the generation of any result, bet settlement or any other element of a game, we will not be liable to you as a result of any such errors and we reserve the right to withhold payment and to declare all bets or plays in question
This is a very similar exclusion of liability clause but included "human error" expressly and separately, whereas clause B2 did not.
Conclusions on construction
Incorporation of clauses B1 and B2
"Openness
2.22 In order to achieve the openness required by good faith, terms should be 'expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously' to the consumer. Consumers should not be assumed necessarily to be able themselves to identify (particularly in longer contracts) terms which are important, or which may operate to their disadvantage or which would be likely to surprise them, if drawn to their attention"
Further, at para. 2.25:
"Consumers' circumstances – how they behave in practice
2.25 Economic research has drawn attention to a number of factors that the CMA considers are potentially relevant to the assessment of fairness. One of these is that most consumers do not read standard written contracts thoroughly before making a purchase This finding cannot be considered surprising, and it is not clear how it would be practical or economically efficient for consumers generally always to read all the terms of all contracts into which they enter, given the number of transactions in which they are involved and other claims on their time. It remains important that terms should be transparent, since those who do read them should be properly informed. But lack of time and ability to do so is an important source of consumer
validly won a Jackpot under the Rules (which took priority over B1) and as displayed on her screen. She had faithfully played the Game and spent her money. The clause purports to permit the Defendant to avoid liability to consumers because of errors in what was displayed onscreen caused by the Defendant's own recklessness, or negligence (or that of its sub-contractors), regardless of the seriousness of the errors or the default. Further, this clause purports to exclude liability for breach of the CRA S.35 duty to provide digital content which is fit for its purpose (that being: effective, instant win, online gambling shown on screen) or the S.36. duty to provide digital content which is as described (gambling under WYSIWYG Rules). In this case the seriousness of the default by the Defendant was high in my judgment. It related to huge Jackpots which were incorrectly mapped on a Jackpot wheel. The right to avoid was also given regardless of the duration of the Defendant's errors and regardless of their complete failure to test their screen graphics after remapping. In this case the failure to test lasted 48 days, which I consider to be a long time and was undetected over what were probably thousands of plays. The right is given regardless of the number of other customers disadvantaged by the default before the Claimant, in this case 13 others. I also take into account that the right to avoid was not a one off. It purported to apply to every play, every day of every year. If, contrary to my decision above, B2 covered human errors, the Defendant's sub-contractors' errors led to the right to exclude liability to the Claimant for over £1 million which she had properly won in accordance with the Rules. I consider that to be unusual.
validation clause. Nor is it a "how you win this game" clause. It was not referred to in the Rules. It undermines what I have found was the common intention of both parties, that what the consumer sees is what she gets.
view is to accept the submission of Mr Baldock that clause B2 was unusual and onerous, within the proper meaning of those words.
view. Some show the efforts of various gaming companies to draft liability avoiding clauses for errors. In Spreadex a clause was held to be unusual and onerous, so not incorporated. Likewise in Green. In Longley the case turned on different issues. In Parker, the ratio related to the identified £10 win being shown clearly on screen and in compliance with the games rules and procedures. The validation of results term was also determined as incorporated, usual and not onerous. A liability exclusion was not the issue. It is clear that each case is fact specific.
void plays. Its effect is to deprive players, not only of their play, but also of any winnings, even those Jackpots to which they should have been entitled had the software been properly mapped. The Defendant accepts that the RNGS awarded the Claimant over £20,000, but clause B2 gave them the right to take that very substantial sum away. The fact that the Defendant has not chosen to reclaim the £20,000 odd they paid to the Claimant is nothing to the point. One can envisage many types of clauses to deal with software errors which are far less draconian. A clause which entitles the Defendant to avoid paying only the excess sum caused by the error, for instance. Before ever reaching the need for an exclusion clause the Defendant could have put a validation clause into the Rules for large Jackpots which would have avoided the mischief. See for instance the Camelot rules which made it clear that wins over a certain level needed validation, in Parker. The Defendant did not do that. In my judgment the man on the Clapham Omnibus or the woman on the Sheffield tram, if asked, would say that for online gambling, it would be unusual and onerous for the company to be able to avoid all liability for its own recklessness or negligence and long term lack of quality testing and for the consumer to bear all of the financial risk arising therefrom. So, taking all the circumstances into account, I consider that clause B2 was unusual and onerous.
valid prima facie evidence of the win, but there was no such notice, rule or caveat in the Rules.
Efforts to bring B1 and B2 to the Claimant's attention at the time the contract was made
very long.
Enforceability under the CRA
Contract for the supply of digital content
verbal submissions but not in her skeleton or pleadings. Whilst the Claimant asserted this was a contract for the supply of digital services and the Defendant denied this, no substantive submissions were made about this issue either in the skeleton arguments or at the hearing. The amended pleadings properly highlight that the issue relates to the interpretation of S.33(4) of the CRA but I heard no submissions on that section. No case law was provided to me to explain how that section operates. Because they were raised so late I do not consider it fair to the Defendant to determine this issue. So, I proceed on the agreed basis that this was a contract for the supply of services covered by the CRA.
Contract for the supply of services
verification of wins, in particular large jackpots, do not inherently cause an imbalance. For the reasons explained by Andrews LJ in Parker, they are necessary to make clear these crucial matters in online gaming contracts. So, no imbalance is caused merely by explaining clearly, in a set of game rules or procedures, or terms that the computer (or the RNGS) will determine the win, not the screen animations. Thus, I do not consider that the first sentence of clause B1, inherently created an imbalance of itself. But, in this Game it contradicted what was set out in the Rules and abolished the player's expectation, expressly confirmed by the Rules, that what the Defendant's computer displayed in digital form on her screen would determine her results. It is the contradiction between the Rules and the Conditions which creates the imbalance. Under the Rules the player knows what is being determined and sees the outcome. Under B1 the player does not know her result and, under the second sentence of B1, her screen provides no probative evidence of the result. This combination of secret determination off screen and abolishment of the evidential probative value of the player's screen display, put all the power into the Defendant's hands and disempowered the player. The equivalent in live roulette, would arise where the player who bet on number 13 and sees the ball stop on the roulette wheel on number 13, is not allowed to rely on what she sees. A term allowing the house to assert that the ball actually landed on another number (say zero) would be unusual and disempowering. It is equivalent to the gas meter reading being decisive in the examples in the UCTA Guidance 2015.
valid wins too. This clause creates a very wide exclusion. Even on the Defendant's own case the Claimant won over £20,000 but clause B2 would entitle the Defendant to avoid all liability. Furthermore, this clause entitles the Defendant to avoid liability for Defendant's own recklessness, gross negligence, negligence and long term failure properly to test. The breadth of the defaults covered is substantial. A more focussed clause would create less imbalance. For theses reasons, in my judgment, clause B2 created a significant imbalance between the parties which I consider breaches the requirement of good faith.
void in B2, the same reasoning applies. Therefore, I rule that clauses B1&B2 and each of the 4 sentences therein are unenforceable for being in breach of S.62 of the CRA.
Conclusions
(1) The Rules of the Game applied and determined that the jackpot wheel shown by the Defendant's software on the Claimant's digital screen determined that she had won the Monster Jackpot.
(2) If clause B1 was incorporated in the contract it was inconsistent with the Rules such that priority had to be determined. The Rules took priority over clause B1 by reason of the preamble to Part B. Thus, the Claimant won the Monster Jackpot under the contract.
(3) The scope of clause B2 did not cover human errors in programming the screen display of the Game and hence did not entitle the Defendant to make the Claimant's play void and/or to exclude liability for the Claimant's win shown on her screen.
(4) Clauses B1&B2 of the Conditions in Part B of the WCT were not incorporated into the contract between the Claimant and the Defendant because they were unusual and onerous and were not adequately brought to the Claimant's attention.
(5) If clauses B1&B2 were incorporated, they were unenforceable under the Consumer Rights Act 2015.
Therefore, summary judgment should be entered for the Claimant.
END