In April 2023, we reported on Mrs. Parker-Grennan’s failure to obtain summary judgement against Camelot UK Lotteries Ltd (the provider of the National Lottery) in respect of her claim that she had won £1,000,000 rather than £10. For a full summary of the first instance decision see our blog here.

By way of recap:

• When Mrs. Parker-Grennan opened her online National Lottery account she was required to tick a box confirming she had read and agreed to be bound by various Camelot Ts&Cs (the “Terms”).

• In August 2015, she bought a ticket for one of Camelot’s online ‘Instant Win Games’. To win, a player had to match a number across two sections of the game. As soon as a player pressed ‘play’ on the screen, the Random Number Generator (“RNG”) selected a number which corresponded with a specific prize tier. That number determined the outcome of the player’s ticket (in this case, a prize tier of £10).

• Having selected her numbers, Mrs Parker-Grennan saw an animation on screen confirming she had won £10. While the RNG was working correctly, a software error affected the animations of the game and upon closer inspection of the screen, she saw the number ‘1’ had also matched, and the prize for that match was ‘£1 million’. There was no corresponding flashing message or animation.

• Parker-Grennan clicked ‘finish’ to complete the game and was told she had won £10. She subsequently claimed against Camelot for £1,000,000, advancing several submissions based on non-incorporation and/or unenforceability of the Terms.

Dismissing Mrs. Parker-Grennan’s application for summary judgment, Mr Justice Jay found:

1. The Terms were properly incorporated between the parties.
2. None of the incorporated Terms were rendered unenforceable by reason of the Unfair Terms in Consumer Contracts Regulations 1999 (the circumstances of this case arose prior to the Consumer Rights Act 2015).
3. There was no construction of the Terms on which Mrs. Parker-Grennan could succeed.

With Mr. Justice Jay’s permission, Mrs. Parker-Grennan appealed his decision. The Court of Appeal unanimously dismissed her appeal, agreeing with his initial ruling.

• For online operators, there is an ongoing dilemma: how to bring Ts&Cs sufficiently to the attention of a prospective customer to incorporate them in the contract, without testing that customer’s patience so much s/he decides to take their custom elsewhere. Lady Justice Andrews pondered whether (a depressing notion for those of us responsible for drafting these terms!) it is ever going to be possible to overcome the ‘fact of life’ that most people (‘even lawyers’) will not bother to read the small print before clicking their acceptance.

• When considering the incorporation of contractual terms, the question is not whether the operator has done ‘everything in its power’ to try to make the other party read the terms (‘one cannot force someone to read Ts&Cs if they cannot be troubled to do so’); the operator only needs to take reasonable steps to bring Ts&Cs to customers’ attention, and provide sufficient opportunity to read them. Whether or not such reasonable steps have been taken will be a matter of fact.

• Lady Justice Andrews did not accept Mrs. Parker-Grennan’s argument that Camelot had not drawn enough attention to the Terms or that players should be forced to look at these before clicking ‘accept’. Forcing a customer to go through that exercise would not make it more likely they would read the Terms; conversely, it was more likely to cause them to become fed up and abandon the website. Further, the Court of Appeal found as a matter of fact that Mrs. Parker-Grennan had a ‘real opportunity’ of becoming acquainted with the terms before she clicked ‘accept’.

• While any onerous or unusual clauses must be brought to the attention of a customer (see our comments on the Green v Betfred case on that point here), Lady Justice Andrews agreed with the first instance judge that there was nothing onerous or unusual about the various contractual provisions on which Camelot sought to rely. One would expect a game such as this to have rules. A stipulation that a player can only win one prize per play is entirely reasonable and commonplace, especially in the context that the respective odds are calculated on that basis. Moreover, no reasonable player could have expected that the game instructions were the totality of the contractual terms. When Mrs. Parker-Grennan saw the screen confirming she had won £10, it should have been ‘obvious to any reasonable player of the Game, even if they did not read the Game Procedures [that only £10 had been won].’

• Therefore, in this case, not only was Mrs. Parker-Grennan aware of the existence of the Terms, the Terms themselves did not contain any provisions that were onerous or unusual. In fact, the network of contractual provisions on which Camelot relied was ‘clearly drafted and well signposted’. The Terms were enforceable against Mrs. Parker-Grennan, and on their true construction, she had not won £1,000,000.

While the issues in this case highlight the complexity of balancing the needs of operators to publicise their Ts&Cs with the needs of consumers to access and understand these, it was expressly accepted by the Court of Appeal that betting operators have a legitimate interest in ensuring payment is made only if there is a valid win.

Nothing in this case impacts the ruling in Green v Betfred which stated operators can rely on clauses enabling them to withhold payments, provided the terms pertaining to do so are clearly drafted and adequately signposted. Lady Justice Andrews refused to be drawn into the hypothetical circumstances as to whether Camelot would have been entitled to rely on their exclusion clauses if, for example, a software error caused the final screen to indicate a win of £1,000,000. So, for now, the Betfred decision remains untested.

This case is nonetheless a helpful reminder to operators of the need to ensure all consumer terms on which they may need to rely are properly incorporated, clearly drafted and adequately signposted.