Lee Paul Gibson v TSE Malta LP (t/a Betfair)

A gambling operator does not breach customer-interaction duties in the Licence Conditions and Code of Practice merely because a customer incurs substantial losses. The decisive question is whether the operator knew, or ought reasonably to have known, that the customer was a problem gambler. Apparent affordability, reliable financial information and the customer’s concealment of the problem may support a finding that it did not.

In obiter, the court held that section 33 of the Gambling Act 2005 does not impliedly make gambling contracts void whenever an operator breaches licensing conditions. The statutory scheme imposes a regulatory penalty on the operator and does not evince an intention to invalidate bets.

Mr Gibson lost more than £1.4 million gambling on Betfair’s betting exchange between 2009 and 2019. He alleged that Betfair knew, or ought to have known, that he was a problem gambler and had breached the Licence Conditions and Code of Practice. He sought damages in negligence. He also contended that a breach of licensing conditions rendered the betting contracts void under section 33 of the Gambling Act 2005.

HHJ Bird, sitting in the Commercial Court, dismissed the claim: [2024] EWHC 2900 (Comm). He found that Betfair lacked actual or constructive knowledge of a gambling problem, owed no relevant duty of care, and that causation was not established. He also rejected the statutory-voidness argument. The appeal principally concerned whether the factual finding on Betfair’s knowledge could be disturbed.

The court unanimously dismissed the appeal. Sir Colin Birss gave the judgment, with which Popplewell LJ and Sir Julian Flaux agreed.

1. The trial judge was entitled to find that Betfair neither knew nor ought to have known that Mr Gibson was a problem gambler. On the facts, there was no practical distinction between the LCCP formulation of concern that behaviour might indicate problem gambling and the judge’s knowledge inquiry. The judge had considered the substantial losses, betting pattern, anti-money-laundering interactions and information known to Betfair.

   Those matters did not compel a different conclusion. Mr Gibson had concealed the problem, repeatedly reassured Betfair about his gambling, and provided information which indicated that his property business and assets enabled him to fund it. The judge was also entitled to find that problem gambling was difficult to identify from data analysis alone at the relevant time.

2. The separate challenge to Betfair’s policies also failed. The evidence established that, if responsible-gambling concerns were confirmed, Betfair’s policy was complete account closure. It was therefore unnecessary to determine the precise construction of paragraph 3.4.1(c) of the LCCP.

3. Since the knowledge finding disposed of the appeal, the court did not determine the wider negligence and causation grounds. Following the caution in Housden v The Conservators of Wimbledon and Putney Commons, [2008] EWCA Civ 200, it declined to give unnecessary rulings on issues not arising on the established facts.

4. Although expressly obiter, the court also rejected the section 33 argument. Whether statutory illegality renders a contract unenforceable depends on statutory construction. Section 33 of the Gambling Act 2005 focuses on penal consequences for an operator, not on invalidating contracts between both parties. That conclusion was reinforced by section 24(8), which does not make non-compliance with a code independently civilly actionable, and by section 336, which expressly permits voiding an unfair bet. The Act did not imply that every breach of licensing conditions voided every gambling contract.

• Court of Appeal (Civil Division): Dismissed Mr Gibson’s appeal: [2025] EWCA Civ 1589.
• High Court, Commercial Court: HHJ Bird dismissed the negligence and unjust-enrichment claims, finding no breach of the LCCP and rejecting the argument that section 33 of the Gambling Act 2005 voided the betting contracts: [2024] EWHC 2900 (Comm).