On 1 March 2024, the Court of Appeal dismissed an appeal in Parker-Grennan v Camelot UK Lotteries Ltd [2024] EWCA Civ 185, in relation to Ms Joan Parker-Grennan’s (“JPG”) appeal against the High Court’s decision to refuse summary judgment for her claim against Camelot UK Lotteries Ltd (“Camelot”).  

In our previous blog Match or no match: the million-pound question for the High Court, we summarised the case and analysed the High Court’s decision. In this blog, we remind readers of the background and then outline the key points to note in the Court of Appeal’s dismissal.

1. Background

On 25 August 2015, JPG purchased a £5 ticket to play an Instant Win Game (“IWG”) on Camelot’s website. During the IWG, an interim (and optional) animated display appeared, showing that JPG had matched two different numbers:

• Number 15, which would have resulted in JPG winning a prize of £10 and was flashing with a corresponding message to confirm the win; and
• Number 1, which would have resulted in JPG winning a prize of £1 million, but there were no flashing lights or messages to reflect this.

JPG applied for a summary judgment alleging it was clear she was entitled to £1 million in addition to the £10 prize.

The High Court accepted Camelot’s defence: JPG was entitled to the £10 prize only, because this amount had been “predetermined” by a computer as the prize that would be won for JPG’s ticket. The coding issue, which was responsible for the optional animations on the IWG, was irrelevant to the question of whether a player had won a prize.

Importantly, this reflected Camelot’s Game Procedures, IWG rules and account terms that made clear that the interim animated display was irrelevant to the question of whether a player had won a prize (the prize had been predetermined by Camelot’s computer system) and which were properly incorporated into the contract between JPG and Camelot.

2. Court of Appeal decision

The Court of Appeal considered the three broad issues from the High Court decision: the (1) incorporation, (2) enforceability (i.e. fairness), and (3) construction (i.e. interpretation) of the terms and conditions on Camelot’s website. Lady Justice Andrews, in providing the leading judgment, considered each of the three issues in order, preceding her analysis with the following remark:

“[T]he short answer to this appeal is that, even as a matter of construction of those terms which she did accept were applicable and binding upon her, [JPG] had won only £10, not £1 million, and accordingly the [High Court] was right. Thus the answer to the construction issue obviates the necessity to answer either of the other questions.”

Nevertheless, Her Honour went on to outline the Court of Appeal’s reasoning on each issue:

Incorporation

LJ Andrews agreed that there was no requirement for Camelot to specifically signpost any of the relevant terms and conditions in order to incorporate them into the customer contract, as a matter of common law.

The question of whether Camelot had done enough to reasonably draw the terms and conditions to the notice of JPG was “quintessentially one of fact” and Her Honour disagreed with the High Court’s opinion that simply following a “click-wrap” procedure (i.e. clicking a button marked “confirm” in response to the words “Accept terms and conditions”) would be sufficient to incorporate all the standard terms and conditions in every case of an online contract for goods or services. However, in this case, she concluded it was clear that JPG would see, upon opening her online account, that there were overarching terms and conditions, as well as specific terms relating to the IWGs and Game Procedures. JPG had also been invited to read and confirm her acceptance of any significant updates to the terms and conditions.

In short, LJ Andrews concluded that the “existence of the terms could not have come as a surprise” to JPG; Camelot had done enough to incorporate the relevant terms and conditions into the contract.

Enforceability

LJ Andrews agreed with the High Court’s assessment of enforceability in this context (i.e. where none of the terms were individually negotiated) turning on whether, contrary to the requirement of good faith, any particular term caused a “significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer” pursuant to Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999. Her Honour further noted if a term was regarded as unfair it would be unenforceable against the consumer, but the remainder of the contract would – if capable of continuing in existence without that term – continue to bind the parties.

Assessing the facts of the case, LJ Andrews agreed with the Judge that the network of contractual provisions on which Camelot relied were clearly drafted and well signposted through the various hyperlinks (unlike in the case of Green v Betfred which we discussed in our previous blog), noting that JPG had “a real opportunity of becoming acquainted with the terms of the contract before she clicked the “I Accept” button”.

Construction

Further to Her Honour’s preliminary summary of her assessment of the construction issue (see above), LJ Andrews noted if JPG had read the Game Procedures it would have been clear that in order to win the prize, JPG needed to click through to the end of the game by clicking “FINISH”. When JPG did this, the outcome was that it was clear she had won £10, not £1 million.

In summing up, her Honour stated:

“Indeed I consider that all of this should have been obvious to any reasonable player of the [game] even if they did not read the Game Procedures.”

3. Conclusion

As discussed in our previous blog, this case presents a flickering ray of hope for an industry in which some operators had resigned themselves to settling consumer claims, then quickly issuing proceedings against their B2B suppliers. To the extent the applicable game rules and terms and conditions are properly incorporated, fair and accurately drafted, they ought to be enforceable – even against consumers.

Indeed, LJ Andrews concludes her judgment by adding that although she dismissed JPG’s appeal, this case has highlighted the complexity of balancing the needs of traders to publicise their terms and conditions, with the needs of consumers to access and understand those terms, finally noting that:

“…given that a decade has passed since the last report of the Law Commission the time might be ripe for another, evidence based, review of this area of law.”

Whether that transpires, or not, is a question for another blog.

If you are a B2C gambling operator, please get in touch. We can help you draft website terms and conditions, rules of play and other gambling contracts that are compliant, valid and enforceable.