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Articles, News | Mon 11th Mar, 2024
This week’s Dekagram brings to our readers’ attention an interesting Court of Appeal decision on incorporation of standard terms via website tickbox – the conclusion seemingly likely to favour those travel agents and tour operators who seek to argue in favour of such incorporation. There is also a timely reminder of the adversarial nature of our legal system, and the implications of that method of doing justice. In other news, Andrew Spencer and Henk Soede will be presenting a dekinar on Thursday 14th on the recent decision in Miller v Irwin Mitchell; readers can register here Webinar Registration – Zoom to participate.
Incorporation and Enforcement of Contractual Terms: Parker-Grennan v Camelot UK
Introduction
Time for a return to the classroom- the circumstances in which terms are incorporated into a contract is an elementary legal question and may bring back painful law school memories for many practitioners.
Perhaps because of the trite nature of this subject, the guiding case law is rather charmingly dated- examples of the subject matter concerns the theft of a fur coat from a hotel[1], a rudimentary form of mechanical vending machine for packs of cigarettes[2], and a remarkable number involving passage on steam trains[3].
The principles of contract formation are a product of a bygone era. They were not conceived of in the digital world, or in, as the court puts it in the instant case, the context of “the fact of life that most people (dare I say it, even lawyers) will not bother to read the “small print” before clicking on the box or button which states “I have read and accept the terms and conditions”, a charge to which the author pleads guilty.
Joan Parker-Grennan v Camelot UK Lotteries Limited [2024] EWCA Civ 185[4] confronts this problem. It also confronts a rather tragic and TV-drama worthy tale of a person who was incorrectly led to believe she had won a lifechanging sum on the lottery.
The Claimant was a regular National Lottery player. She had used an online account for playing National Lottery games since February 2009. The games were organised and the online system operated by the Defendant.
On opening the account in 2009, the Claimant had been required to tick a box confirming that she had “read, accepted, and agreed to be bound by” a range of terms and conditions. Those terms and conditions were set out thus “at the bottom of the page was a box with a link to the Account Terms, which then ran to many pages of very small print and contained hyperlinks to the other terms and conditions mentioned in the text on the screen.”
This is a common place and no doubt familiar process referred to as “click-wrap”. It has been a common software feature for a number of years now. Each individual lottery game had similar rules which had to be accepted in a similar manner.
In August 2015, the Defendant began to operate a game called the “£20 Million Cash Spectacular” (“the Game”). This game was an Interactive Instant Win Game (“IWG”), which are “games of chance … in which registered players like the [Claimant] have a chance to win a cash prize”.
Players, including the Claimant, paid for a ticket, which was then allocated a “unique Play Number”. The Claimant then clicked “Play”. Prizes ranged from £5 to £1,000,000 and players were told a specified probability of winning a random prize within this range.
The game then displayed a set of “Winning Numbers”. The player was then given the option to draw a certain number of random numbers. The game stated that if the player matched a greater number of the numbers they had drawn to the Winning Numbers, a greater prize would be awarded. A full house, so to speak, corresponded to a £1,000,000 prize.
In reality, however, this was no more than a purely decorative animation for entertainment purposes. It could be skipped or disabled without any consequence. The outcome (whether a prize was won and if so, how much) was pre-determined automatically the moment “Play” was clicked. The numbers on screen had nothing whatsoever to do with the actual operation of the game, but the animation was intended to show the player drawing an appropriate number of “Winning Numbers” to correspond to the allocated prize, if any.
This was, materially, what was described in the terms and conditions both of the game itself and the account in question, but not in the more readily accessible on-screen software.
Where this is going may not be surprising. The animation software was poorly tested, the game having only launched the day the Claimant played. A JavaScript error caused the animation to show that the Claimant had matched the “Winning Numbers”, implying that she had won £1,000,000.
The Claimant took a screenshot to demonstrate this, and telephoned the Defendant. In fact, the software had determined that she had won £10. The next screen of the animation showed this clearly. This sum was credited to her account.
Undeterred, the Claimant claimed the £1,000,000 prize, less the £10 credited to her by the Defendant.
Issues
The Claim was refused at first instance but appealed (with permission granted by the trial judge) to the Court of Appeal.
The issues were:
Incorporation
The law has tended to favour incorporation where possible. A person signing a document is bound by it, whether or not they have read it or subjectively understood it; provided that they are aware that a) it contains writing, b) that writing contains terms and conditions, and c) the other party had done what was reasonably sufficient to give the other party notice of the conditions. In general, the more unusual or onerous the condition, the more the latter requires[5].
The Claimant argued that too little had been done, in the unusual context of online gambling, to draw the terms to the Claimant’s attention. This argument drew upon
recommendations from the Scottish Law Commission and the Law Commission between 2005 and 2013, observing that “consumers rarely read “small print”, a concept which, as it stated, is not just about font size, but also “marked by poor layout, densely phrased paragraphs and legal jargon” and that all small print terms should be assessable for fairness, including those which related to the main subject-matter of the contract or the price.
The Court did not consider that this particular set of terms and conditions was particularly onerous, difficult to read, or contained any particular trap or device which was highly disadvantageous to the consumer. The terms in themselves were reasonably user-friendly and not unduly difficult to understand. In particular, the specific odds were transparent and set out in layperson’s terms.
It explored a number of technical considerations, but broadly found that the click-wrap procedure, the use of hyperlinks, and drop-down menus were, in principle, sufficient. It was not, in this case, necessary (as some software packages do) to require a consumer to open or scroll to the bottom of a terms and conditions box.
The Court did draw a potential distinction where a sufficiently disadvantageous term might require more- accepting a high degree of subjectivity[6]– but that was not the case here.
The Court didaccept there was very little on screen, in the animations, that showed that the apparent manner in which the game was being played was a fiction. It did consider that it could have made a material difference if the final screen had shown the Claimant winning the £1,000,000 prize, or at least would be more finely balanced[7]. The court considered that the latter was less an incorporation point and more a matter of construction of those terms.
In short, the Court found that the Defendant had, by adopting the click-wrap procedure, done enough to incorporate these terms and conditions and, as such, they were enforceable as against the Claimant subject to the UTCCR.
Enforceability/the UTCCR
The UTCCR owed its origins to a recognition that consumers were often at an enormous disadvantage by these rules, and so statutory limits were imposed on the enforceability of certain consumer terms which had not been individually negotiated.
Among those limits was reg.7(2), which provides that “if there is any doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail.
The Claimant sought to argue that the implication of this term was that “where there is ambiguity, either on the words of a particular contractual clause or as between competing contractual clauses, it is the meaning most favourable to the consumer that should prevail”.
If so, ought the terms described in the animation (match the numbers to win a prize) take precedence over the Rules of the game, since the former was demonstrably most favourable to the Claimant as consumer?
No, the Court found, reg.7(2) “is concerned with the construction of individual clauses and not with the re-ordering or disapplication of contractual provisions”, an interpretation consistent with comparable provisions in s.69(1) Consumer Rights Act 2015[8].
The Court was not entirely convinced- finding that the terms made the Defendant, in effect, judge, jury, and executioner in its own cause- so “a clause which enables one party to the contract to determine in a final and binding way a dispute arising between itself and the other contracting party undoubtedly creates a significant imbalance between them”.
The limit here was that “the decision must be reasonable, in the Wednesbury sense”, but that limit was not breached, as there was “no want of fair and transparent dealing by [the Defendant]”. A betting company had a right to correct “any obvious errors and to void any bets placed where such have occurred[9].”
Construction
The remainder of the Claim was straightforward. The phrase in the animation “Match any of the WINNING NUMBERS to any of YOUR NUMBERS to win PRIZE” was not the sole contractual term. In the “Game Procedures” (as found to be incorporated above), under the section entitled “How to Play and Win” explained that “if You match a number from the WINNING NUMBERS Section to a number in the YOUR NUMBERS Section, the two matching numbers will turn white and flash in a green circle indicating that you have won the Prize for the matched YOUR NUMBERS” and “When You have revealed all numbers and Prizes a message will appear at the top of the Game Play Window indicating the amount You have won, if any. The word “FINISH” will appear underneath the message. You must select “FINISH” to complete the Game.” None of these criteria were met.
The Court concluded that it would have been clear to the Claimant that “it was not enough for a number in the lower section to correspond with a number in the upper section; the two matching numbers would have to turn white and flash, the amount of the win would have to appear in the message at the top of the Game Display Screen, and the screenshot that she took prior to clicking “FINISH” did not represent the end of the Game. When she did click “FINISH” the outcome, consistently with what she had already seen, and the flashing images, was that she had won £10”.
And, to twist the knife one last time “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… however one looks at the matter, on the true construction of the contract, the Appellant did not win £1 million”.
Summary
Bad facts make bad law, and the Claimant did not herself here- the temptation to characterise her approach as opportunistic or in less than good faith was real.
All of that said, the Court did hold the door open to success in a claim of this kind, just not this claim. In general, conventional software methods for incorporation of Terms and Conditions were upheld, but there are circumstances where that could be vitiated by a sufficiently egregious error as a matter of construction. The UTCCR will not work in the way that the Claimant needed, but in the case of a particularly sharp or underhand service provided, may well be of more relevance.
The law has only begun to fully consider this area. The Court left with an eminently sensible comment: – “the issues in this case have 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. 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”. Rightly so- clear guidance as to what is, or is not, acceptable commercial practice would benefit consumers and online retailers alike.
About the Author
Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.
Pleadings reign supreme, but remember to speak up
The ‘third man theory’ & Jacobs v Chalcot Crescent
Let us begin with a bitter disappointment. The ‘theory’ has nothing to do with god’s own sport, cricket. No hard feelings if you stop reading now.
Rather it was coined by Lord Justice Dyson in Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041. The claimant sued her employer for injuries caused by a reel of wrapping paper which fell from a machine and struck her. Her pleaded case was that a particular employee (B) had placed the reel on the machine. She did not claim in the alternative that an unidentified employee did so. The judge found that B was not responsible, rather an unidentified employee was, and found for the claimant. This was overturned by the Court of Appeal. Dyson LJ stated at paragraphs 21 to 23:
“21. In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.
22. The starting point must always be the pleadings.
…..
23. In the present case the claimant’s pleaded case was that Mr Braich and no one else placed the reel on the machine. If the claimant wished to advance the third man theory as an alternative to her primary case, then she had to seek permission to amend her pleadings. It may be that she had sound tactical reasons for not taking this course. To advance such an alternative case was inconsistent with the claimant’s evidence, and might in any event have been interpreted as a sign of weakness. There was no hint of the third man theory in the witness statements, the way in which the case was opened or in the evidence of the claimant’s witnesses. I accept that there was a rather faint-hearted espousal of the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for the claimant to take the point.”
The same issue arose in the recent decision of the Chancery Division in Jacobs v Chalcot Crescent (Management) Co Ltd [2024] EWHC 259 (Ch). The subject matter is not relevant for index purposes, but the lower court’s decision in favour of the claimant rested upon a case not pleaded. Applying Al-Medenni the decision was overturned by Mr Justice Fancourt, though he had some interesting things to say about the need for opposing counsel to raise the problem at trial and not wait for the appeal:
“53. Despite Mr Williams [counsel for the respondent in the appeal] not taking the point, I must consider whether the failure by Mr Morris [trial counsel] to object at trial to the new issue precludes Mr Jacobs [counsel for the appellant in the appeal] from relying on the point as a ground of appeal.
54. In this regard, the first point to make is that the fact that Counsel for the employer in Al-Medenni v Mars told the judge during the hearing that the third man theory was not a pleaded issue does not feature at all in the reasoning of Dyson LJ. The focus is instead on the absence of a pleaded issue and the fact that it had not therefore been explored in evidence, or been addressed in argument until it was too late.
55. However, the Court will not usually allow a procedural impropriety that should have been raised at the time and could then have been put right to found the basis of a successful appeal, when it is then too late to put the matter right. Parties are expected to take their procedural or other objections to the course of a trial at the time, rather than keep quiet and use them as ammunition for an appeal. That is particularly so if the irregularity is of the kind that the affected party could sensibly choose to let pass, or acquiesce in, on the basis that it did not really affect the fairness of the trial or impinge on the main issues.
56. It is pertinent to note that the issue, though identified by the Judge, was not raised in such a way as to make it clear that it was a self-contained issue that was being relied on by the defendant as justifying refusal of consent….. I therefore do not consider that Mr Morris was at fault in not identifying that that was where the point was heading and objecting at the time.
57. Further, where an issue has clearly not been pleaded and was not relied on at the start of the trial, I consider that the onus lies as much on counsel for the party seeking to rely on it as on their opponent to raise the matter with the judge and seek permission to amend. For the reasons given by Dyson LJ in Al-Medenni v Mars, a party is entitled to rely on the pleaded case as defining the ambit of the issues to be decided at trial.”
A number of questions arise. At what stage does a new unpleaded issue need to be introduced, referred to and/or expressly relied upon, to be capable of waymarking success at trial? In what circumstances would it be inappropriate for an unsuccessful party to appeal vis a vis the third man theory, where their trial counsel did not object at trial? When does it become unfair to the opposing party for a judge to “invite, and even encourage, the parties to recast or modify the issues” in such a way that they now face a different claim they did not prepare to refute at trial? It is surely wrong that a judge inclined to find for a party on an unpleaded case can simply invite them to amend their pleading, then find for them on this basis. The whole point of pleadings, as the Court of Appeal eruditely explained, is to set the goalposts and inform each party of the case they must meet.
All questions to be pondered on a lazy sunny day, stuck fielding down at third man because you’re (apparently) too slow and creaky to be in the slips.
About the Author
Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. He is now instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims.
[1] Olley v Marlborough Court Hotel [1949] 1 KB 532
[2] L’Estrange v F Graucob Ltd [1934] 2 KB 394
[3] e.g. Parker v South Eastern Railway Company [1877] 2 CPD 416
[4] https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/185
[5] Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433
[6] O’Brien v MGN Ltd [2001] EWCA Civ 1279
[7] In Green v Petfre (Gibraltar) t/a Betfred [2021] EWHC 842 (QB) a bet was upheld where a major software fault caused a “jackpot” prize to be generated in error, and not merely
[8] Interpreted in R (Doneghan and others) v Financial Services Compensation Scheme Ltd [2021] EWHC 760 (Admin)
[9] Longley v PPB Entertainment Ltd [2022] EWHC 977(QB)
Call: 2009
Call: 2016
