In a recent claim for nearly £1.8m against an online betting company, the judge held that none of these features are… at first blush features of an open and fair consumer contract that is easy to access and understand.
On the basis it is easier to learn from the mistakes of others, what do you need to change in your contracts?
Content mistakes to avoid
The court listed a few issues with a set of terms and conditions that the online betting company was seeking to rely on:
- the terms were iterative and repetitive
- the numbering was absent or inconsistent
- there were typographical mistakes
- there was a mix of general clauses applying but not very obviously to all players, and various headed sections relevant to specific games which required players to trawl through pages of other like material reciting smilar issues for each activity
- the layout and terminology does not make it clear exactly what a player is obliged to agree to, nor where to find it
- the prolific use of capitalisation…is striking and rather diminishes its power elsewhere in the document as a signpost of importance.
Interestingly, the terms and conditions were capable of dealing expressly and clearly with specific issues, just not when it mattered to the dispute. Most of the key exclusion clauses being relied on by the betting company were held to be at best unclear.
Process mistakes to avoid
The betting company had to prove the meaning of the terms as well as the fact that the terms were adequately brought to the player’s attention. They failed:
this is the result of the combination of inadequate signposting to these significant exclusions of liability, and the failure to highlight the meaning and effect intended. The unhelpful, often iterative presentation in closely typed lower-case or numerous paragraphs of capital letters meant that the relevant clauses were buried in other materials. These features are exacerbated by the fact that the player must click through and scroll online, searching out what appears to be relevant to him.
This is particularly the case for consumer transactions under English law where the Consumer Rights Act 2015 requires that terms must be ‘transparent and fair’. The language was not considered transparent ie plain and intelligible, as the drafting was ‘opaque and difficult’ and the meaning would not have been clear to an average and informed player.
The court held 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 are inconsistent with the fairness envisaged by the Act as indicated in the light of the previous relevant case law.
What should you do?
Write your terms clearly and concisely: your reader must understand your meaning on their first reading.
Use a structure which makes it easy for users to find the information they need to know quickly eg using relevant subheadings, signposting, icons, quick links.
Use a format which is accurate and logical for the user: present key information first.
Case: Green v Petfre (Gibraltar) Ltd (t/a Betfred)  EWHC 842