Hillside (New Media) Ltd v Baasland & Ors

For a threatened claim arising from online gambling losses, the applicable law is determined by the ordinary private international law rules for tort and contract. Financial loss occurs where the claimant’s immediate loss is suffered, rather than wherever indirect financial consequences are felt. Where the gambling facilities, website operations, relevant accounts and contractual performance are substantially connected with England, English law may govern the claim. Under English law, a bookmaker does not generally owe a problem gambler a duty to prevent continued gambling, absent an established basis for such a duty. A contractual obligation to protect the customer requires proof that the term is necessary for business efficacy or obvious to the parties. Summary judgment and a negative declaration may therefore be granted where there is no real prospect of liability.

Hillside, an English online gambling company, sought summary judgment on a negative declaration that it was not liable to Bjarte Baasland for losses incurred through sports, casino and games betting on the bet365 website. Baasland had threatened proceedings alleging negligence and non-statutory strict liability under Norwegian law, but had not commenced them or served a defence.

The court considered whether any contractual or non-contractual claim would be governed by Norwegian law or English law. It examined the Rome II Regulation, the Private International Law (Miscellaneous Provisions) Act 1995, the Rome Convention and the contractual arrangements governing the betting facilities. The central issues were the place of immediate financial loss, the closest connection of the alleged tort and contracts, and whether English law disclosed any viable claim.

1. Applicable law. The court held that there was no realistic possibility that a claim by Baasland would be governed wholly or partly by Norwegian law. Under the Rome II Regulation, the immediate loss occurred when betting reduced or exhausted the value of the funds held for him. The relevant funds and betting facilities were substantially connected with England. Any tort was also manifestly more closely connected with England.
2. The same conclusion followed under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The facilities were provided substantially through a website operated in England, and the loss was suffered in substance in England. The secondary rule also pointed to English law.
3. As to contract, the parties had not selected Norwegian law. The characteristic performance was the provision of gambling facilities through Hillside’s website, and the general rule therefore pointed to English law. The consumer-contract exception was not shown to apply because there was no evidence of a specific invitation or relevant advertising directed to Baasland in Norway.
4. Merits under English law. Following Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch), the court accepted that the common law imposed no duty of care on a bookmaker to protect a customer who appeared to be a problem gambler by preventing continued gambling. Hillside was in an even stronger position because there was no evidence that it knew or ought to have suspected Baasland’s difficulty. No strict-liability claim or implied contractual term requiring protection was realistically arguable.
5. There was no real prospect of Baasland defeating Hillside’s contention that it was under no liability in tort or otherwise. The court granted the negative declaration and Hillside’s application for summary judgment.