Case:

Durber v PPB Entertainment Ltd 2025 EWHC 498 (KB) (05 March 2025), before Mr Justice Ritchie.

Introduction:

The High Court has granted summary judgment in favour of Corrine Durber, a customer of Paddy Power, who sought recovery of £1m+ in jackpot winnings. Paddy Power argued that it was not obliged to pay Durber because the winnings arose from a programming error, and the terms of the contract between them excluded its liability to pay out in those circumstances.

Key Facts:

• In October 2020, Durber played an online game, “Wild Hatter” (the Game), on the Paddy Power website.
• As a result of an “error in the software mapping”, the Game’s jackpot wheel initially showed that Durber had won the “Monster Jackpot” of close to £1.1m, before the screen updated to reveal the correct, smaller “Daily Jackpot” win of just over £20,000.
• Paddy Power sought to rely on contract terms stating that its server records – determined by random number generator software – were definitive over the screen display, and a separate exclusion clause for errors.
• Durber argued that the rules of the Game (Game Rules), which stipulated that what was displayed on screen determined winnings, took priority over the wider terms and in any event the relevant terms were unfair under consumer law.

The Judgment:

Finding in favour of Durber, the court determined that:

• Under an ordinary and natural construction of their words, the Game Rules did stipulate that what was displayed on screen determined winnings in the Game (essentially, ‘what you see is what you get’).
• The Game Rules took precedence over the wider terms and conditions which, in contrast to the Game Rules, stipulated that Paddy Power’s server records were definitive in determining winnings (not what was displayed on screen).
• The exclusion clause for errors did not cover the specific human error in software programming that caused the discrepancy between the server records and Durber’s screen display.
• In any event, the relevant exclusion clauses were, by their nature, ‘unusual’ and ‘onerous’ and, as such, were not incorporated into the contract with Durber because they were not adequately brought to her attention.
• Even if the clauses were incorporated into the contract, they were not – due to their breadth – fair or enforceable under the Consumer Rights Act 2015 (CRA).

Commentary:

What Lessons Can Operators Draw from The Judgment?

It’s important to note that this case does not mean that exclusions of liability to pay out winnings in the event of a game error are necessarily going to fail. Indeed, the Judge accepted that “errors can occur and game rules and procedures setting out clearly how an online game will only be won if no error has occurred and/or requiring verification of wins, in particular large jackpots, do not inherently cause an imbalance”.

However, the bar has again been set very high for operators seeking to rely on contractual protections in the event of game errors, and a number of lessons can be drawn (some new, many reiterating familiar themes):

• Signposting: This is by no means a new concept – it’s long been required that ‘unusual’ or ‘onerous’ clauses must be flagged to consumers in some additional (and adequate) way in order to be enforceable. But this case is yet another reminder of quite how essential this practice is. Powerful clauses, particularly those that are potentially detrimental to consumers, must be specifically pointed out to consumers using what Lord Denning once famously described as “red ink … with a red hand pointing to it”.
• Drafting specificity & clarity: Drafting needs to be uber-specific and clear, so that meaning is unambiguous. In this case, for example, the Judge held that the errors clauses didn’t cover human errors because they didn’t consistently say so (even though human error was referred to in places) and, therefore, the CRA’s ‘contra proferentem’ rule applied.[1]
• Beware conflicts: Clearly a problem in this case was the apparent contradiction between the Game Rules and the wider terms and conditions. It isn’t easy to maintain total consistency between general T&Cs and other connected documents, but operators should work to minimise – and ideally, abolish – discrepancies. Care must also be taken around clauses that set out the order of precedence in the event of inconsistencies, to ensure the right documents are being prioritised in the right situations.
• Incorporation of other rules / documents: The Judge criticised what in his view was a “complicated web of multiple documents”. Operators may feel stuck between a rock and a hard place on this point, when the alternative would be to have every set of terms, policies, rules, etc., set out in a single – and probably enormously long – document. We hardly think the courts would like that approach, either (or consumers, for that matter). Nevertheless, operators should bear this criticism in mind and strive to keep their network of terms as straightforward and easy to navigate as possible.
• Scope of exclusion clauses: The Judge clearly felt that Paddy Power’s exclusion clauses – which were by no means out of step with industry practice, even today (noting that the terms in question dated from 2020) – were nevertheless overly broad, and were therefore problematic and unenforceable. Expanding on his theme of scope-reduction, the Judge said: “One can envisage many types of clauses to deal with software errors which are far less draconian. A clause which entitles the [operator] to avoid paying only the excess sum caused by the error, for instance.[2] He added that, before ever reaching the need for an exclusion clause, an operator could use a ‘validation clause’ to clarify that large jackpots would be checked – in his view, such a clause would have “avoided the mischief” in this case.
• Context: Exclusions of liability need to be considered in their specific context. The Judge in this case was evidently impressed by the fact that Durber hadn’t done anything wrong, whereas – in the Judge’s view – Paddy Power had (in the sense that the issue (i.e., the error) arose on Paddy Power’s side of the equation, not Durber’s). Clearly the Judge felt that to successfully exclude liability in these particular circumstances would require an even higher degree of drafting clarity, signposting, and so on.

What Steps Should Operators Be Taking?

There’s an obvious need for operators to review their terms and conditions in light of this case. There are never any guarantees of enforceability when it comes to exclusions of liability against consumers, but operators should certainly take note of the judgment, and review/update their terms and conditions accordingly.

Many will already have done this following other similar outcomes in the courts over recent years, but in the current climate – not only following this and other cases (see our commentary on the Green v Betfred case in 2021 here), but also the Gambling Commission’s stated focus on terms and conditions this year – a ‘rolling review’ is called for, treating terms and conditions as living documents to be looked at on a regular basis.

Given the (re-)emphasis of the importance of signposting, there’s an equally obvious need for operators to consider what additional steps they’re taking to bring important clauses to consumers’ attention. These steps might include:

• producing a summary of key terms which are made clearly known to players and which players can easily access at any time;
• reviewing player registration journeys and acceptance of terms and conditions (and any updates to the same);
• reviewing the acceptance processes for individual product/game rules (particularly when the product/game is first accessed); and
• considering the introduction of clear warnings that wins will be subject to validation checks and will not be paid if found to be the result of a fault or error.

References

[1] The rule being that, if there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer will prevail.

[2] This was a reference to the assertion that the exclusion clause was drafted broadly enough that it could, on the face of it, have entitled Paddy Power to not pay out even the ‘Daily Jackpot’ amount that, per the servers, Durber had actually won.