The decades-old principle that clauses in contracts that are particularly onerous (such as those that exclude or severely limit the liability) must be adequately brought to the attention of the “buying” party is familiar to many.
However, the recent decision in Green v
Facts
On
Subsequently
Relying on exclusion clauses contained in its terms and conditions, an End User Licence Agreement and in the Game Rules, Betfred argued that it was entitled to refuse to pay out winnings on account of there being a defect in the game.
- The meaning of the exclusion clauses did cover the actual technical glitch that had occurred
- The clauses had not, in any event, been sufficiently notified to him and so had not been incorporated into the contracts with Betfred
- Even if incorporated, under the Consumer Rights Act 2015 clauses of this nature were required to be fair and transparent, and they were neither
Decision
In a damning judgment on the quality of the drafting of the contracts upon which Betfred relied, Mrs
As to the meaning of Betfred's exclusion clauses, the judge analysed in detail the terms relied upon, and identified drafting inconsistences, typographical mistakes, unnecessary use of capitalised lettering, unclear layout and terminology which, whilst not fatal to reliance upon an exclusion clause, were “not at first blush features of an open and fair consumer contract that is easy to access and understand”.
These issues aside, the judge considered that the exclusion clauses relied on in the terms and conditions, the EULA and the Game Rules were simply not apt to cover the particular circumstances of the case, namely a hidden defect (which, the judge was at pains to point out, is quite different from a malfunction, breakdown or interruption in service which is what the exclusion clauses all seemed to be addressing).
On the second question, the judge found that none of the terms seeking to exclude liability had been sufficiently brought to the attention of
Not surprisingly, in addressing the third issue, the judge was not satisfied that the requirements of “transparency” (i.e. a term expressed in plain and intelligible language) and “fairness” (taking into account the nature of the subject matter of the contract and the knowledge of the consumer signing up to it) under the Consumer Rights Act had been met.
Commentary
This case provides a salutary reminder that businesses must pay close attention to how the “small print” is drafted in any contracts with consumers. As in this case, these issues often come to the fore in an online setting where terms and conditions can be accepted with the click of a mouse button, and businesses may wish to give this further thought particularly given the ever-increasing digitisation of the consumer marketplace.
A business who seeks to hide (or inadequately signpost) key terms or fails to make clear precisely the circumstances in which a transaction may be voided is unlikely to be able to avail itself of clauses limiting its contractual obligations.
This judgment shows that courts will also scrutinise the “look and feel” of the terms and conditions - font size, syntax, formatting etc. - as part of its investigation as to whether onerous or unexpected clauses have been sufficiently brought to the attention of the consumer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
Stevens & Bolton
Wey House
GU1 4XS
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