A recent case in the High Court (Andrew Green -v- Petfre (Gibraltar) Limited t/a Betfred) has highlighted the importance of adequately signposting exclusion clauses in consumer terms and conditions.
What are exclusion clauses? Clauses which restrict or exclude liability; for example, clauses which exclude or restrict a person from pursuing a right or remedy (as happened in this case).
The facts of the case
In January 2018, Mr Andrew Green played a blackjack game on Betfred’s mobile casino app for 5 hours non-stop. By the end of his 5-hour stint, the app showed that he was in the money and had won £1,722,500.24. Mr Green then tried to withdraw his jackpot but the app prevented him from doing so.
He therefore contacted Betfred’s customer services and all bets were off when they told him that his winnings would not be paid out due to a “malfunction” in the game. The glitch (of which neither party were aware at the time Mr Green was playing) meant that the longer the game was played without stopping, the likelihood of a player obtaining winning cards increased to such an extent that eventually, the player would have held only winning cards.
In order to argue it didn’t have to pay out, Betfred wore its poker face and relied on exclusion clauses in its consumer terms and conditions which stated that Betfred was entitled not to pay out in the event of a “malfunction”.
Mr Green brought a claim for his winnings and the chips fell exactly where he needed them to – he won.
The issues considered:
Meaning: Did the wording of the exclusion clauses adequately operate to exclude Betfred’s liability to pay out for the winnings? The judge found no because the exclusion clauses did not make clear that Betfred would not pay out in the event of an error in the game and that the meaning of “malfunction” had not been effectively defined; Incorporation: Were the exclusion clauses part of the contract between the parties? The judge found no because the terms were not adequately signposted and their meaning and intended consequences had not been highlighted. She also pointed out that the “unhelpful … presentation [of the terms] in closely typed lower-case or numerous paragraphs of capital letters” made relevant clauses difficult to find; Reliance: Under the Consumer Rights Act 2015 (CRA), are the clauses enforceable such that Betfred can rely on them? The judge found no because the CRA requires terms to be transparent and fair, and based on her findings concerning meaning and incorporation, this was not the case.
What practical meaning does this case have for consumer terms and conditions?
This case draws out a few key tips to ensure that you can hedge your bets on your exclusion clauses:
Draft clauses clearly and in their natural meaning; Properly define ambiguous terms; Present the terms in an easy-to-read format; and Clearly signpost at the beginning of the terms which clauses are most important (which includes the exclusion clauses).
Don’t let it be luck of the draw – follow these rules of thumb to keep your exclusion clauses winning.