To Win Or Not To Win? A Question of Clear, Consistent Terms
Do your various contractual terms, associated rules and notices sufficiently protect your commercial interests? A recent decision demonstrates the importance of fair and consistent drafting of terms and conditions and any associated documents and ensuring these are brought clearly to the attention of the other party.
What happened?
An online player of a Paddy Power ‘fruit-machine’ game won a jackpot of just over £1m while playing the game on her iPad. She knew she won because the screen told her so after she was invited to spin the jackpot wheel.
But Paddy Power (PP) said this was a mistake: there was a human mis-programming error and her winnings should have been displayed at just over £20,000 (as recorded by its servers). That’s what she was paid. No explanation for the change of the sum she had won was provided on screen.
PP relied on its T&Cs, arguing that where there was any discrepancy between the random number software generator software and the on-screen result, the records on PP’s server were definitive. Further, the game Rules stated that malfunction voids all play, however, the software and hardware did not malfunction - it was, as the court noted, programmed wrongly by a human being.
The judge1 highlighted several difficulties in constructing the interaction between the game Rules and the actual T&Cs. He found that PP could have made it clear to the consumer in the Rules at the date of the contract that, for instance, verification will determine the result (at least for big jackpots) but chose not to.
Further, one of the clauses in the T&Cs provided that "In the event of a systems or communications error relating to the generation of any result …, we will not be liable to you as a result of such errors …". Again, the clause did not cover the human error that had happened.
Also, the clause transferred all of the risk for PP’s errors onto the consumer. The exclusion clause created a very wide exclusion (it excluded liability for valid wins), creating a significant imbalance between the parties. This breached the requirement of good faith.
The judge concluded that on a proper construction, the Rules had priority: the result or outcome shown on the screen was contractually what the player was entitled to (‘what you see is what you get’). That is what the she expected; and that’s what PP would have thought was to be intended.
Why does this matter?
PP’s drafting of its T&Cs and the game Rules were not consistent and this cost it almost £1m. Had PP reasonably and sufficiently brought certain clauses to the player’s attention, its defence may have succeeded, at least in part. In practice, it had not done so.
Businesses may find it instructive to consider the specific problems highlighted in the ruling, and consider their own contractual documentation in light of this:
· PP had lost its original contract with the player
· It had not produced any evidence of sending her customer notice when there had been a change in terms in 2020
· The exclusion clause did not include “for our mistakes"
· The exclusion clause was not listed in the index to the Terms of Use, or mentioned/referred to in the Rules and not in bold or capitals or highlighted or referred to on screen at all
· The T&Cs consisted of multiple documents located in different places (making it difficult for consumers to see the whole contract in one place at one time)
Businesses must ensure their contractual terms are unambiguous, consistent with any other rules or terms, fair, and (particularly if onerous) clearly brought to the attention of the other party. The context is relevant – transacting (or playing) online, for example, can present the particular challenge of engaging with the user and directing them to clear contractual terms at the right stage.
Always take specialist legal advice to avoid costly mistakes.
1Durber v Paddy Power [2025] EWHC 498 (KB)
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