Exclusion Clause Requires Unambiguous Language
Aside from some exemptions (immaterial in the case before the Court), the Consumer Rights Act 2015 required that as between a trader and a consumer, terms and notices must be transparent and must be fair.
An unfair term would not bind the consumer, although the contract would continue in existence unless that was impossible.
The Court had an element of judgment to exercise in the light of the circumstances of each case: Andrew Green v Petfre (Gibraltar) Limited t/a Betfred) [2021] EWHC 842 (QB) Mrs Justice Foster
A term was ‘transparent’ if it was expressed in plain and intelligible language and, where written, was legible (s64(3)).
A term was ‘prominent’ if brought to the consumer’s attention in such a way that the average consumer would be aware of it (s64(4)), that was to say, someone who was reasonably well-informed, observant, and circumspect (s64(5)).
Findings made elsewhere in the judgment about the drafting of the clauses meant, inevitably, that the Court was not satisfied that the three clauses relied upon to exclude liability in the present case conformed to the requirements of the 2015 Act.
The language was not to be described as ‘transparent’. Even if that was wrong and the clauses properly construed were apt to cover the liability in issue, and were in fact incorporated, the drafting was nonetheless opaque and difficult, and the meaning was not clear to an average and informed consumer.
Even though the Claimant was an experienced and competent player of internet gaming, nonetheless, the nature of the liability sought to be excluded required clear explanation and ‘signposting’ which would have involved a full and clear description of the possibility of a hidden technical defect, and its potential consequences for the gaming contract.
Unambiguous language that made it clear Betfred intended to void a payout in such circumstances was necessary.
Even if, at best, an ambiguity could be spelt out, then statute required it must be construed against Betfred. The Court was unable to find any such ambiguity.
Reflecting the approach in Director General of Fair Trading v First National Bank [2001] UKHL 52, Section 62(5) of the Act was to be judged taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depended.
The Court would have regard to the knowledge and experience of the consumer and the identity of the party who had put forward the term alleged to be unfair.
A submission that the exclusionary terms in the Game rules were not subject to the restrictions of the 2015 Act because they were to be read as dealing with the subject matter of the contract, was rejected.
Those clauses purported to deal with a contingency: namely, with the risk that there was an undetectable flaw in the design or realisation of the Game that shortened the odds in the player’s favour.
The Court would not be astute to bring terms within that description. As Lord Steyn expressed in First National Bank (above): “In any event, regulation 3(2) must be given a restrictive interpretation. Unless that is done regulation 3(2)(a) will enable the main purpose of the scheme to be frustrated by endless formalistic arguments as to whether a provision is a definitional or an exclusionary provision.”
The overall findings of the Court inevitably meant that the clauses in question fell foul of the requirements of the statutory obligation of fairness.
The obscurity of the language, the context of the contract, and the failure adequately to signpost the exclusion clauses and explain their consequences to the player were inconsistent with the fairness envisaged by the Act as indicated in the light of previous relevant case law.
Mrs Justice Foster granted summary judgment on a claim where the Claimant had been refused a pay out of £1,722,500.24 recorded on his on-screen winnings in an online game called ‘Frankie Dettori’s Magic Seven Blackjack’.