Fighting Against the Odds – Mr Green 1 – Betfred 0
The Bookies don’t always win… Tom Maple looks at the recent case of Green v Petfre (Gibraltar) Ltd (T/a Betfred), where Mr Green took on Betfred for £1.75m and won.
I have advised on a number of gambling cases from the sublime to the ridiculous (one involving a bet on Donald Trump based on a tip from a YouTube preacher being perhaps the most bizarre). In nearly all cases, the bookmaker seldom rolls over, and puts up a fight, relying almost exclusively on T&C’s that the gambler has not read.
The facts of this recent case against Betfred are all too familiar. Gambler wins. Bookmaker doesn’t pay out. Gambler doesn’t know what to do to get his money. However, this gambler was not willing to take it lying down…
Background
Just after midnight on 26 January 2018, Mr Green began playing ‘Frankie Dettori’s Magic Seven Blackjack’ (the “Game”) via an online platform hosted by Betfred.
After 5 hours of playing on the Game’s side bet feature, Mr Green moved to a different game on the site. At this time, the betting chips were recorded at £1,722,500.24 in winnings.
When Mr Green went to withdraw the winning chips. However, he was unable to do so. Therefore, Mr Green contacted Betfred. Initially, Betfred did not dispute his winnings. However, after making checks, Betfred told him there had been a “glitch” in the Game and his winnings could not be paid out.
Unknown to either party, a fault in the Game allowed players to play at better odds than Betfred had intended without a break.
Mr Green was somewhat annoyed by Betfred’s refusal and brought a claim against Betfred for his winnings. Indeed, he was so confident of his position, he applied for Summary Judgment (early disposal of a case without trial) or a strike out of Betfred’s defence.
Issues
Mr Green relied on clause 2.4 of Betfred’s terms and conditions, which said that ‘customers may withdraw funds from their account at any time providing all payments have been confirmed’. Betfred argued that clause 2.4 referred to customers own funds placed in the account, not to chip balances.
In response, Betfred relied on 3 exclusions in their paperwork. They said that:
- Clause 4.4 of their terms and conditions excluded their liability to pay Mr Green’s claim as there had been a defect in the Game.
- Clause 5 of the End-User License Agreement (the “EULA”) also excluded liability due to the defect. Additionally, the Game rules said that liability was excluded as bets and payments were void following a malfunction.
- In the alternative, Betfred were claiming common mistake, where there was a fault in the system, allowing Mr Green to play for longer than intended.
Mr Green stated that those clauses did not reflect what happened in his case, and they were not sufficiently brought to his attention (he last accepted the EULA terms in 2013), so they were not incorporated into his contract with Betfred. If, alternatively, they were incorporated, the Consumer Rights Act 2015 (“CRA 2015”), required such clauses to be clear, fair and transparent to be relied on, which they were not.
Decision
Mrs Justice Foster DBE concluded that, looking at the natural meaning of the words, neither clause 4.4 of the terms and conditions, clause 5 of the EULA nor the Game rules were appropriate for Mr Green’s circumstances as they were not in fact dealing with the failure to pay out winnings. The references in the clauses to a defect or malfunction were actually referring to different scenarios.
Additionally, neither the clauses nor Game rules were adequately brought to Mr Green’s attention, so they had not been incorporated into the contract. The Judge added that even if the clauses had been incorporated into the contract, they did not conform with the CRA 2015 as the language was not transparent and fair. The EULA in particular was complex, repetitive and unclear. The use of capitalized paragraphs in the documents suggested their importance but diminished the other paragraphs.
Mrs Justice Foster confirmed that it was unlikely that a customer would read the entire agreement, including the repetitive sections and the rules of the specific game they were playing. The requirement in the terms and conditions for a player to consult an attorney if they are in doubt about the meaning of any of the terms, was found to be an ‘ineffective attempt to shift the burden of providing a clear language and a proper warning where liability is sought to be excluded’.
The existence of mistake did not render the performance of the contract impossible, so Betfred’s argument failed. Mr Green succeeded in summary judgment.
Effect of the case
This is a significant win for all gamblers and you have to hand it to Mr Green for taking Betfred on.
Like many large corporates, bookmakers have lengthy terms and conditions which contain clauses which are difficult to follow for non-lawyers (and some lawyers!). Similarly, as the Judge said, key exclusions and key terms are often either not incorporated, or, if they are, are not brought to the account holders attention, or, are hard to understand.
This case acts as a warning for online companies to be clear in their terms and conditions and to ensure clauses are incorporated. Hopefully it also means that bookmakers do not try to hide behind unfair or unincorporated terms and conditions to try to avoid paying out what the gambler has fairly won.
Let’s face it, the odds are stacked against the gambler, so when they win, the bookie should pay out.
Conclusion
I have advised on numerous cases involving gambling contracts and similar situations to this. If you have a dispute with a bookmaker, online or offline, please do get in touch – Tom Maple, 0118 951 6309 or [email protected] .
