Green v Petfre (Gibraltar) Ltd (t/a Betfred)

Contractual exclusions in online gambling agreements must use clear language and prominent signposting if they are intended to exclude payment of apparently valid winnings caused by a hidden software defect. Terms referring generally to software errors, malfunctions or payments made because of defects will not ordinarily achieve that result where the game operated apparently normally and the defect was undetectable. Such terms may also fail incorporation and the requirements of transparency and fairness under the Consumer Rights Act 2015. A common mistake does not avoid a gaming contract merely because a defect makes performance less advantageous to one party.

The claimant played an online blackjack side game hosted by the defendant and was shown winnings of £1,722,500.24. The defendant refused payment, relying on exclusion clauses in its general Terms and Conditions, an end-user licence agreement and the game rules. It also relied on common mistake. The claimant sought summary judgment, alternatively strike out of the defence. The central issues were the construction and incorporation of the exclusion clauses, their enforceability under the Consumer Rights Act 2015, and whether common mistake applied.

1. Summary judgment. The dispute concerned short points of contractual construction. The defendant had no realistic prospect of successfully defending the claim, and there was no compelling reason requiring a trial. Summary judgment was therefore appropriate.
2. Contract and construction. The relevant relationship was a gaming contract, probably formed when the claimant placed each bet. It carried an implied obligation to credit and pay winnings, subject to a valid contractual reason for withholding them. Contractual language had to be construed objectively, in its documentary, factual and commercial context, applying Wood v Capita Insurance Services Ltd [2017] AC 1173 and Arnold v Britton [2015] UKSC 36.
3. The exclusions in the Terms and Conditions and EULA concerned detectable communications, system or software failures, interruptions and related losses. They were not apt to exclude payment of an apparently valid win produced by a hidden programming defect. The bare reference to a malfunction in the game rules was undefined and naturally suggested a detectable breakdown or interruption.
4. The exclusions were not adequately incorporated. They were buried in lengthy, repetitive and poorly signposted documents. The EULA had been accepted years before the game existed, and the game rules did not clearly indicate that important exclusionary provisions appeared at the end of the document. The court did not hold that click-wrap contracting was inherently ineffective, but such exclusions required particular care and prominence.
5. Even if incorporated and apt in meaning, the terms were neither transparent nor fair under Part 2 of the Consumer Rights Act 2015. They did not clearly explain the possibility of an undetectable defect or its effect on winnings. The subject-matter exemption was unavailable because the clauses addressed a contingency rather than the main subject matter.
6. The doctrine of common mistake did not apply. The gaming contracts had been performed; the defect made them less advantageous to the defendant but did not make performance impossible. The claimant therefore succeeded in his application.