Background
The Claimant, Ms Durber, played the 'Wild Hatter' game on the Defendant, PPB Entertainment Limited (Paddy Power)'s website. She span the jackpot wheel and the game subsequently displayed on her screen that she had won the £1,097,132.71 "Monster Jackpot". However, the Claimant had only £20,265.14 credited to her account.
The Defendant argued that it was not required to pay the Monster Jackpot to the Claimant, as, whilst the screen had shown the Claimant had won the "Monster Jackpot", the software behind the screen – the random number generator software – had instead determined that she had only won the sum of the "Daily Jackpot" of £20,000. They therefore sought to argue that what the Claimant had been shown on her screen was an error – the software had provided the correct result.
Although the rules of the game, which set out how a consumer would be required to play the game and how they would win (the "Rules"), provided that a consumer should 'spin the jackpot wheel to determine which of the offered jackpot tiers will be won', the Defendant intended to rely upon the provisions of its standard terms and conditions ("Terms and Conditions"). The Terms and Conditions were available online, and combined with the Rules, terms of use, and various other documents formed the contract between the Claimant and Defendant.
The first of the relevant terms within the Terms and Conditions stated that, "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" (clause "B1"). Further, the Defendant sought to exclude liability for the result on the basis of "systems or communications errors relating to the generation of any result, bet or any other element of a Game" (clause "B2"). These terms had been accepted by the Claimant when she had initially opened an account in 2011.
The Claimant subsequently issued proceedings in the High Court for recovery of the sum of the Monster Jackpot.
Judgment
Mr Justice Ritchie sided with the Claimant, awarding summary judgement in her favour on 5 March 2025, due to a priority clause in the Terms and Conditions. The clause held that, to the extent of inconsistency, the Rules would take precedence over the Terms and Conditions. Additionally, a proper construction of the Rules was that what was displayed upon the screen was what would determine the winnings, reinforcing the message that 'what you see is what you get'.
Whilst the Claimant succeeded because of this priority clause, Mr Justice Ritchie's obiter comments regarding the onerous and unusual nature of Clauses B1 and B2 are of practical significance for businesses who engage with consumers subject to standard terms and conditions.
Mr Justice Ritchie considered that consumers would expect that whatever would be shown on their screen would be both accurate and correct. Therefore, as the effect of clause B1 was to make what the consumer saw essentially irrelevant, this clause was unusual and onerous.
Clause B2 was a widely-drafted exclusion of liability clause which placed all risk for errors solely on the consumer. A proper construction of this clause B2 was that liability was only excluded for systems or communications errors – and not the human error, which led to the incorrect jackpot being displayed. Therefore, even if incorporated into the contract, B2 would not have entitled the Defendant to avoid liability in paying the Claimant her winnings.
Further, the Defendant did not make sufficient efforts to bring B1 and B2 to Claimant's attention prior to the contract being made. Mr Justice Ritchie noted that:
- The terms and conditions changed in August 2020, yet the Defendant produced no evidence of informing the Claimant of this change not of her acceptance;
- Clause B2 was not clearly named as "Exclusion of Liability for our mistakes";
- Clauses B1 and B2 were not listed in the index to the terms of use, nor were they mentioned or referred to in the Rules;
- Clauses B1 and B2 were in the middle of 45 pages of small print, and were not sufficiently drawn to the Claimant's attention as they were not, for example, in bold, capital letters, or highlighted; and
- The terms and conditions consisted of multiple documents located in different locations, rendering it difficult for consumers to see the entire contract at once.
Therefore, both B1 and B2 would have been unenforceable – and even if they were incorporated, they would have been unenforceable under the Consumer Rights Act 2015, as they created a serious imbalance in the rights and obligations of the parties, to the detriment of the consumer, undermining the requirement of good faith.
What does this mean for businesses?
Businesses should take practical steps to ensure that their terms and conditions are clear and concise, ensuring that significant efforts are made to highlight onerous or unusual clauses.
Businesses should also note that the judgment does not place a blanket restriction on the ability of operators to exclude liability for paying out winnings to consumers. If this is to be done, however, businesses should ensure that their terms are consistent, accessible, and fair. As suggested by Mr Justice Ritchie, this could be achieved by clearly informing a consumer at the time of entering into a contract that there would be a verification process for large jackpots, which would determine the result. Additionally, businesses could consider highlighting unusual or onerous clauses in an easily accessible location for a consumer – explaining clearly and concisely the effect of these clauses, and frequently reminding consumers of the same.
Companies which have recently merged, as Paddy Power and Betfair did in 2016, should ensure that they thoroughly review their terms and conditions so that they are codified and consistent. Here, the result of the merger was a convoluted and inconsistent set of contract documents, which contained a range of conflicting clauses and references to alternative documents. Businesses could consider a clearly drafted priority provision which may help to avoid this outcome, establishing clearly what would happen if different clauses conflict and any ambiguities arise. Even where there has not been a change as substantial as a merger, businesses should regularly ‘sense-check' their terms and conditions for consistency.
Further, operators with contracts made up of multiple documents– such as those which include reference to separate terms or policies should include clear sign-posts to such documents and ensure that they are aligned with any overarching terms and conditions.
Whilst this case did not establish new points of law, it has served as a useful reminder of the importance of clear drafting and the steps that businesses ought to take when they have onerous and unusual clauses in consumer-facing terms and conditions – and the risks of non-compliance if not.
