LEGAL
John Yates considers the art of crafting clauses to reduce risk
EXCLUDING AND LIMITING LIABILITY: HOW TO PLAY YOUR CARDS RIGHT After 15 years drafting various types of commercial contracts, I can honestly say the most hotly contested contractual issue is exclusion/limitation of liability: suppliers will want to exclude and/or limit as much of their liability as possible; customers will want the opposite. A recent case – Green v Petfre (Gibraltar) Ltd (t/a Betfred) – provides salutary lessons for all regarding limitation/exclusion clauses.
FIRST SHUFFLE OF THE DECK
In 2018, Mr Green played Blackjack on Betfred’s mobile app, amassing winnings of £1,722,500.24 in just five hours. When he tried to withdraw his money, the app wouldn’t let him. He called Betfred’s service team who at first congratulated him but then, five days later, said that they needed to carry out a check with the game’s developer, Playtech, given the scale of his winnings. Playtech determined there was a glitch in the game; Betfred told Mr Green that he wasn’t entitled to anything. Mr Green issued a claim for his winnings relying on the T&Cs he accepted when he first started using the Betfred app – there was a clause which said Betfred would
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pay out where payments were confirmed. Betfred said this clause only related to stake money paid in by punters, and its principal line of defence was that various clauses in its T&Cs, the mobile app’s licence agreement and the game’s rules excluded its liability when caused by a software malfunction. Mr Green countered (i) there was no software malfunction but rather a game malfunction, which was not covered by Betfred’s exclusion clause, (ii) the relevant exclusion clauses were not sufficiently notified to him and (iii) that they were inaccessible and unclear, meaning they weren’t part of the contract.
HERE COMES THE JUDGE
There were three key points for the Judge, Mrs Justice Foster, to consider and in April 2021 she found:
1
The wording of Betfred’s exclusion clauses was not adequate to exclude liability to pay out winnings for the glitch because: (i) the clauses did not deal with the failure to pay out winnings; and (ii) the reference to “malfunction” without further explanation or definition was insufficient to cover the circumstances relating to Mr Green’s win.
2
Betfred’s exclusion clauses did not form part of the contract because the exclusions were not sufficiently brought to Mr Green’s attention. To be incorporated into the contract, the clauses should have been signposted and Betfred should have highlighted their meaning and intended effect.
3
Betfred’s exclusion clauses were not transparent or fair and therefore, under the Consumer Rights Act 2015, not enforceable.
