The decision of the High Court of England and Wales in Parker-Grennan v. Camelot UK Lotteries Limited is a helpful case study in how to host a consumer-facing website. It is surprising, given how much care and attention is afforded to the content of terms and conditions, how the presentation of those same terms and conditions to consumers can often 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. Accordingly, companies would be well served to revisit their practices to ensure they are not creating unnecessary hurdles for themselves to overcome when seeking to rely on their terms and conditions in any dispute.
Camelot UK Lotteries Limited is the licensed operator of the National Lottery and hosts various ‘instant win’ games on its website. Any website user is required to tick a box upon creating an account that they have read and agree to be bound by Camelot’s terms and conditions, which are available through a series of hyperlinks and drop-down menus. When the terms and conditions are updated by Camelot from time to time, website users are prompted by a pop-up that displays a summary of the changes, accompanied by a button marked ‘accept’, which users must click in order to keep using the website.
Joan Parker-Grennan held an account with Camelot, and on 25 August 2015, she paid £5 to play the ‘£20 Million Cash Spectacular’ instant win game. Upon selecting to play the game, Parker-Grennan’s game was instantly linked to a unique ‘play number’. Parker-Grennan proceeded to play the game, whereby the player seeks to match a selection of numbers identified as ‘YOUR NUMBERS’ with another selection of ‘WINNING NUMBERS’ in order to claim the corresponding prize for any given match.
When Parker-Grennan finished playing the game, the final animation played, which identified that she had won £10 by matching the number 15. However, Parker-Grennan also noticed that, although the game had not flagged it, she had matched the number 1, which had a corresponding prize value of £1 million, and she quickly took a screenshot of the display.
Parker-Grennan contacted Camelot to explain the result that she had secured. Camelot responded that the play number associated with Parker-Grennan’s game was automatically and randomly associated with a ‘prize tier’ – in this case, prize tier 27, which meant a £10 win for the player – and that the display graphic shown was the result of a coding error.
Parker-Grennan brought a claim against Camelot for the £1 million prize and sought summary judgment of her claim. Camelot resisted the claim on the basis that, while it accepted there was a coding error that displayed an incorrect prize, the animated display was irrelevant to the question of the prize that was actually won by a player in accordance with the relevant contractual terms – namely, the account terms, the instant win game rules and the game procedures (collectively, the terms and conditions).
The Court succinctly identified the three essential limbs of the case:
- Incorporation: What were the terms of the contract between the parties?
- Enforceability: Are all or any of the provisions that were incorporated rendered unenforceable by reason of the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999?
- Construction: In light of incorporation and enforceability above, did the claimant win the £1 million claimed?
The High Court’s decision
Parker-Grennan advanced a case that no reasonable consumer would read any of Camelot’s terms and conditions, and that the particularly onerous wording on which Camelot relied should have been properly signposted in line with well-established contractual principles. The Court, relying on Ebury Partners Belgium SA v. Technical Touch BV, found that hyperlinks and drop-down menus are sufficient to incorporate contractual terms on a website. As to whether any of Camelot’s terms were onerous enough to require special notice, the Court agreed that as a matter of principle this was fair and, amongst other precedents, pointed to Lord Justice Denning’s ruling that: ‘[T]he more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient’. The Court found that none of Camelot’s terms and conditions was so unusual or onerous on Parker-Grennan as a consumer that they required special notice to be given and decided the incorporation issue in Camelot’s favour.
Parker-Grennan sought to argue in the alternative that, even if Camelot’s terms were properly incorporated, they were void for unfairness under the UTCCR. Regulation 5 of UTCCR set out that a contractual term that has not been individually negotiated is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. If a term is found to be unfair, then, pursuant to Regulation 8 of UTCCR, it is not to be binding. The Court accepted that some of Camelot’s terms created an imbalance but did not go so far as to find a significant imbalance, and that Camelot was fair and transparent in all its dealings with Parker-Grennan. For example, Camelot used plain English in the terms and conditions, with helpful sub-headings and clear sections that were discretely devoted to each particular game.
Once the Court found that Camelot’s terms and conditions were successfully incorporated and enforceable against consumers, then the ordinary contractual principles of interpretation led to the irresistible conclusion that players could only win one prize per play, and that the play number – and not the graphic displayed – determined the prize that Parker-Grennan had won.
Accordingly, the application for summary judgment was dismissed.
It is apparent that the Court found Camelot to have behaved responsibly with its consumers, and that the manner in which it had presented its terms and conditions was fair and reasonable. When contrasted against similar cases decided in favour of the player, this case is an opportunity to identify and implement best practices for contracting with consumers via a website. Companies would be well served to review their websites to ensure that any contractual terms are:
- Written in plain English.
- Clearly defined and discrete.
- Readily available in an easy-to-read format.
- Required reading before a user can access the website (e.g., a pop-up requiring a click to ‘accept’).
Failure to review website terms could mean that companies are simply creating hurdles for themselves to overcome when seeking to rely on their terms and conditions in any dispute.
  EWHC 800 (KB).
  EWHC 2927 (Comm).
 J Spurling v. Bradshaw  1 WLR 461.