The decision of the High Court of England and Wales in Durber v. PPB Entertainment Ltd is another helpful case study in how to host a consumer-facing website.[1] It is interesting, given how much time is spent carefully drafting the substance of terms and conditions, that the presentation of those same terms and conditions to consumers can sometimes be an afterthought. If companies do not get this right, there is a real risk that they may be providing consumers with the ammunition they need to argue that any relevant terms and conditions are unenforceable against them.
Background
PPB Entertainment Limited is a licensed gambling operator and hosts various ‘instant win’ games on its PaddyPower-branded website.
Corrine Durber held an account with PPB Entertainment and, as part of the registration process, Durber agreed to be bound by PPB Entertainment’s standard terms and conditions. On 18 October 2020, Durber placed a bet with PPB Entertainment by playing the slot game called ‘Wild Hatter’. Durber had three jackpot symbols appear in her game which prompted the ‘Jackpot wheel’ animation to play. The ‘Jackpot wheel’ indicated that Durber had won the game’s ‘Monster Jackpot’ of almost 1,100,000 pounds. PPB Entertainment accepted that the ‘Jackpot wheel’ indicated this on the animation but attributed it to a software error, and argued that Durber was actually entitled to the ‘Daily jackpot’ of about 20,000 pounds, as per the random number generator software which allocated prizes to each game instance.
Durber argued that the rules of the game provided that what was displayed on the screen is what determined her winnings. PPB Entertainment sought to rely on the platform’s terms and conditions, which held that where there was any discrepancy between the animated game screen and random number generating software on their server, then the result in the server was definitive. Durber submitted, in the alternative, that the clauses of the terms and conditions relied upon by PPB Entertainment regarding such discrepancies were unfair under the Consumer Rights Act 2015 (CRA) and therefore invalid.
The High Court decision
The High Court ruled in favour of Durber and held that the rules of the game clearly indicated that the on-screen display was what determined the winnings of the player.
The court held that, on a proper interpretation of the contractual framework, the rules of the game had precedence over the terms and conditions where there was any inconsistency between the two documents. Durber was entitled to her winnings on the clear language in the rules of the game that ‘what you see is what you get’.
PPB Entertainment sought to rely on an exclusion clause under the terms and conditions which provided that, insofar as there was a system error on the platform, then it had no liability to pay such winnings out. The judge considered that the language of the exclusion clause limited its operation to ‘systems or communications errors’, and that the cause of the discrepancy in this instance was a human programming error. This type of error was not articulated in the exclusion clause, and therefore the clause did not apply.
It was held that Durber was entitled to her winnings, and summary judgment was granted. The judge went on to make an obiter comment that the exclusion clause was unenforceable in any event as it was not properly incorporated into the terms and conditions. The exclusion clause was sufficiently unusual and onerous as to require special notice bringing it to Durber’s attention, and such notice was not given. To use Lord Denning’s classic example: There was no big red hand pointing to the exclusion clause in the onboarding process Durber engaged with to register her account, nor when she started to play the game. Further, even if the exclusion clause was considered to be properly incorporated, then it was not enforceable pursuant to the CRA, as it created a significant imbalance in the parties’ rights, and that was not fair in a consumer contract of this nature.
Takeaways
This judgment further highlights the difficulties that operators face when hosting consumer-facing websites. There is an inherent tension between ensuring that contractual wording – and specifically exclusion clauses – are sufficiently drawn to the attention of consumers without hampering the consumer experience of a website. Consumers are not likely to revisit websites that make them review lengthy terms and conditions prior to each engagement. Similarly, there is a tension between ensuring that contractual language protects the operator while being articulated with plain language such that an average consumer is likely to notice and understand the relevant clauses.
There are steps that operators can consider taking now to protect themselves. It is well worth the time to revisit any applicable terms and conditions, and consider the manner, method and frequency with which they are presented to consumers. In particular, operators should consider how any particularly onerous clauses are flagged to consumer’s attention.
[1] And one that is a neat counterpoint to the judgment given in very similar circumstances in Parker-Grennan v. Camelot UK Lotteries Limited [2023] EWHC 800 (KB). See our article on this judgment.
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