Every internet user has had the experience of mechanically scrolling through densely typed terms and conditions before being granted access to a website – but are they worth anything in law? The High Court tackled that issue in confirming an online punter's seven-figure gambling win.
After more than five hours continuously playing a form of online blackjack, a gambler amassed a haul of virtual betting chips worth over £1.7 million. The operator of the website initially congratulated him and he celebrated with his family. The operator, however, later informed him that his success had arisen from a glitch in the game and refused to pay out his winnings.
After he sought a court order requiring the operator to honour his winnings in full, the operator argued that any liability to pay him was excluded by terms, conditions, rules of the game and other contractual provisions to which he agreed before starting to play. Defects in the game or malfunctioning software were said to have rendered his bets void.
Rejecting those arguments, however, the Court found that the neither the terms and conditions nor any other contractual provision had the effect of excluding the operator's liability to honour an apparently unimpeachable win. The risk that winnings might arise from an undetected and undetectable defect in the game or its operating software was borne by the operator and had not been shifted to the gambler.
In ruling that the terms and conditions were in any event not incorporated in the contract, the Court criticised their obscure and unclear wording. It was most unlikely that online gamblers would take the considerable time to trawl through complex, repetitive and lengthy documentation which was not clearly relevant to them.
Provisions that purported to restrict the operator's liability had not been adequately signposted or drawn to the gambler's attention. The operator was also not entitled to rely upon them because their lack of accessibility and clarity was inconsistent with the fairness and transparency envisaged by the Consumer Rights Act 2015. The Court concluded that the operator had no viable defence to the gambler's claim and entered summary judgment in his favour.