Opinion

With exclusion clauses and unfair terms, the house doesn't always win

Published Date
Apr 25, 2021
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Exclusion clauses in consumer contracts must be adequately signposted, with their meaning and effect highlighted: Andrew Green v Petfre (t/a Betfred).

In 2018, Andrew Green played a blackjack game on Betfred’s mobile app. After five hours, he had winnings of GBP 1,722,500.24. However, when he tried to withdraw his jackpot, he was prevented from doing so. Betfred informed him that there was a glitch in the game and refused to pay out. Mr Green issued a claim for the money.

Betfred defended the claim, arguing that, due to the glitch, they were not entitled to pay out, and sought to rely on the exclusion clauses in the terms and conditions on their website, mobile app, and blackjack game. Betfred alternatively claimed that both parties had mistakenly believed that the game was functioning properly, so the contract between them was void.

Mr Green applied for summary judgment to strike out Betfred’s defence, claiming that the exclusion clauses (i) did not cover the present circumstances of a malfunction in the game (rather than a software malfunction), and (ii) were not sufficiently notified to him, and were inaccessible and unclear, so did not form part of the contract. He argued that the doctrine of mistake was not applicable.

The judge considered the following issues in relation to Betfred’s exclusion clauses:

  1. The wording of the exclusion clauses on which Betfred relied was inadequate to exclude liability to pay out Mr Green’s winnings because of an error in the game. The terms did not deal with a failure to pay out winnings, and were not clear that bets are voided as a result of an error. In addition, the reference in the terms to “malfunction“, without defining that word, was insufficient to cover circumstances where the game “functioned apparently flawlessly, but produced a set of odds that were not what one party intended“.
  2. The exclusion clauses were not brought to Mr Green’s attention sufficiently, due to inadequate signposting and a failure to highlight the meaning and effect of those terms. As such, even if the terms had been worded in a manner which was effective to exclude liability, they were not incorporated into the contract between Betfred and Mr Green.
  3. As a result of her findings about the drafting and presentation of the exclusion clauses, the judge found that the terms were not transparent or fair, as required by the Consumer Rights Act 2015. Betfair was therefore not entitled to rely upon them.

As for Betfred’s alternative case, the judge held that the mistake did not render the contract incapable of performance, as required under the doctrine of mistake, but simply less advantageous to Betfred.

Postscript: Three years after his win, Mr Green will now receive GBP 1.7m with interest. According to the BBC, Betfred has apologised for the delay in Mr Green receiving his money and confirmed it will not appeal the decision.

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This content was originally published by Allen & Overy before the A&O Shearman merger

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