Bet on your T’s & C’s

“Whether we like it or not, we are living in a digital era”. Lady Justice Andrews, in the recent Court of Appeal Judgment of Joan Parker-Grennan v Camelot UK Lotteries Limited [2024]  emphasised the importance for businesses to incorporate their terms and conditions when entering into a contract for goods and/or services online. Whilst LJ Andrews acknowledges that “being forced to scroll through several pages of “small print” … is more likely to cause [the customer] to become fed up and quit the website”, businesses need to make customers aware of their terms and conditions if they later intend to rely on them in a dispute.

In this case, the Appellant Mrs Parker-Grennan, played a new interactive instant win game on the National Lottery website, which at the time was operated by the Respondent, Camelot. The game’s terms and conditions stated that there was only one win per game and that if two matching numbers appeared, they would be highlighted and this would result in a cash win. Due to a technical error in the game, the Appellant was shown two highlighted matching numbers which won her £10 however, there were also two other matching numbers showing on the screen, which would have resulted in a win of £1m; although these numbers were not highlighted. 

Although this case is about online gambling, LJ Andrews states that “it has squarely raised the issue of what needs to be done to incorporate standard terms and conditions into a contract which is made online. So far as we are aware, this is the first case in which that issue has been considered by this Court”. This case will have further implications on all types of online contracts.

The leading authorities regarding the incorporation of terms and conditions pre-date the digital era. They refer to printed documents, and whether the person receiving the printed document was aware that there was text on it. There is no requirement for the document to actually have been read by the receiving party. 

The rules are summarised in Chitty on Contracts and provide that “if the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions, and if the other party knew that there was writing or printing on the document but did not know it contained conditions, then the conditions will become the terms of the contract between them.”

LJ Andrews in this case reaffirms that “the trader only needs to take reasonable steps to bring the terms and conditions to [the customer’s] attention, which involves giving them a sufficient opportunity to read them. A sufficient opportunity may be afforded by providing a hyperlink to the terms or a drop down menu which the consumer can click (or not) as they choose. The fact that the trader might have taken different or further steps to bring the terms and conditions to their attention, does not mean that the steps that he did take were insufficient or unreasonable.”

In this case, it was held that the Respondent had taken sufficient steps to incorporate their terms and conditions at various stages, from the outset of the provision of services. The Respondent required the customer to tick a box confirming they had read the terms and conditions, before the online service was provided, and again at each time these terms and conditions were updated, or when a new online service was introduced. The appeal was struck out on this basis and the Respondent was not ordered to pay the Appellant the £1m cash prize.

Is it ever going to be possible to overcome 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"?

https://www.bailii.org/ew/cases/EWCA/Civ/2024/185.html