The million pound question: how to draft T&Cs to protect against payouts when things go wrong
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UK
I am an associate and solicitor-advocate in Bird & Bird's Dispute Resolution team, advising clients on matters involving commercial litigation, international arbitration and alternative dispute resolution (ADR), with experience in a variety of sectors, including the financial services, media, entertainment & sports, technology & communications, energy & transport, pharma / life sciences and retail & consumer sectors.
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In the online world, when you run into technical errors such as glitches/malfunctions, well drafted T&Cs can help shield you from liability. To successfully rely upon them, a business will need to be able to demonstrate that they are fair, both in terms of their content and the way in which they are presented to the user/consumer. The English Court of Appeal recently examined this issue in the context of an online lottery game, finding that Camelot’s T&Cs were clearly drafted and incorporated into the contract. We look at this decision in more detail below and contrast it with another gambling case which illustrates what can happen when the drafting is more opaque.
Camelot’s robust T&Cs
In Parker-Grennan v Camelot UK Lotteries Limited [2024] EWCA Civ 185, the claimant purchased a ticket to participate in one of the National Lottery’s Instant Win Games (“IWG”), in which the player had to match a number in the ‘YOUR NUMBERS’ section of the screen with a number in the ‘WINNING NUMBERS’ section, with prizes ranging from £5 to £1 million. An animation appeared in the IWG which showed the claimant had won £10, however, as a result of a software error, another animation appeared matching a number which suggested the claimant had also won the grand prize of £1 million (this was despite there being no corresponding message, flashing lights or any type of other signifier to suggest the claimant had won the grand prize). Further, having clicked ‘finish’, the claimant was notified of her £10 win only.
The claimant claimed the £1m (and the £10). Camelot explained that a coding issue generated an error in the software responsible for the IWG’s on-screen animations and argued that its T&Cs provided that the prize to be awarded was the one already predetermined by its computer system, namely £10. Both the High Court and the Court of Appeal agreed with Camelot.
Terms clearly drafted and logically set out
The High Court initially considered whether the terms Camelot was relying on were incorporated into the contract between it and the player. The Judge found that Camelot’s terms were suitably incorporated by means of hyperlinks and…
