Don’t Make Your Consumer-Facing Terms &Conditions a Lottery
Businesses with consumer-facing websites would do well to check that their terms and conditions are clearly presented to reduce any risk of a claim, given a recent dispute. If there is room for ambiguity (at best), a consumer could succeed in claiming they are unenforceable.
The reminder follows a decision throwing out a claim against lottery operator Camelot by a winner who felt short-changed by £1m. It really was a case of ‘tough luck’ for the claimant – and ‘good job done’ by Camelot with its T&Cs..
What was the problem?
In this case1, the game involved the Interactive Instant Win Games which are played online on the National Lottery website.
The claimant opened her lottery account in 2009 and was required to tick a box confirming she agreed to be bound by the rules of the game. The rules were accessible via a series of hyperlinks or drop-down menus. Players are notified of subsequent changes and required to tick acceptance of significant changes.
In 2015 the claimant bought a £5 ticket. At the relevant time, she was presented with a drop-down menu revealing a summary of changes plus complete versions of the provisions. The game, in a nutshell, was that to win - a player had to match a number in the ‘YOUR NUMBERS’ section of the screen with a number in the ‘WINNING NUMBERS’ section.
The claimant pressed ‘play’ on her screen and clicked on all five of ‘Winning Numbers’ and all 15 of the ‘Your Numbers’. Her screen changed and an animation identified that she had won £10 prize as the combination of the number ‘15’ being matched and it was flashing white.
Looking closely, she saw she had also matched the number 1, the prize for which was £1 million. There was no message saying she had won £1 and no flashing lights. The Claimant says that she is entitled to this prize in addition to the £10 prize which the screen display had told her she had won.
Camelot resisted her claim for the £1m prize, partly on the basis that a coding issue had generated an error in the software responsible for the animations. The claimant’s counsel characterised this as “a red herring” and argued that the claimant had no means of detecting the coding error (which Camelot failed to identify for 36 hours), creating a particular unfairness. This was rejected by the court.
Camelot heavily relied on its terms and conditions of play.
T&Cs
The judge summarised the prevailing business practices succinctly: “In the age of the internet, we all have experience of search engines or internet providers seeking to impose on the consumer the terms and conditions they have chosen. Whether these are read I would rather not have to say.
“There are at least two techniques. One company… requires the consumer to scroll through the Terms and Conditions before clicking the relevant ‘accept’ box; others adopt the same mechanism as [Camelot], although there is considerable variation as to the steps a supplier may take to give appropriate prominence to all or any of these terms.
“We all have experience of being asked, or required, to ‘ACCEPT ALL COOKIES’ without having a clear idea of what is happening. In the present case, it should be added that unless the Claimant did click the relevant box she would not have been able to play at all.”
Here, the court found nothing onerous or unusual about Camelot’s contractual provisions and they were not unfair under the Unfair Terms in Consumer Contracts Regulations. It was up to the claimant whether she wanted to go ahead on the basis of the games’ rules. The stipulation effectively saying a player can win only one Prize per play was considered reasonable and commonplace.
The judge also found that the game rules were clearly drafted, set out logically and with “reasonably prominent” headings; and the terms and conditions were sufficiently incorporated via the hyperlinks and drop-down menus.
All the clauses relied on by Camelot in its defence were enforceable. In short, the outcome of £10 was both the intended outcome of the ticket and the actual result.
What does this mean?
This is good news for businesses and, though fact-specific, clarifies the extent to which reasonable attempts to incorporate contractual terms and conditions, including notifying of changes, are sufficient to be enforceable – even if a computer glitch crops up.
Businesses would be wise to keep their online terms and conditions under review and ensure they are fair and reasonable – clearly defined and consumers know what the intended result of any transaction is. If in doubt, take specialist advice from commercial solicitors.
1Parker-Grennan v. Camelot UK Lotteries Limited [2023] EWHC 800 (KB)
If you would like us to cover an issue in the next NGM Tax Law Newsletter, we would be pleased to hear from you