The House Always Wins…or does it?

“The House Always Wins” increasingly appears to be a proverb that doesn’t apply when it comes to consumer claims against gaming operators. In 2021, we were assessing the impact of the Court’s decision against Betfred which concluded that their exclusion of liability clauses were neither transparent nor fair. Last week, the High Court granted summary judgment in favour of Corinne Durber who was seeking to recover £1m+ against Paddy Power.

In short, Durber won the Monster Jackpot of £1,097,132.71 playing the Wild Hatter game on Paddy Power’s website. Or so she thought. Paddy Power did not pay her the Monster Jackpot and, instead, paid her just over £20,000 on the basis that there was a mapping error which should have displayed that she had won the Daily Jackpot, not the Monster Jackpot.

The decision predominately rested on the Game Rules prevailing over Paddy Power’s terms and conditions. Paddy Power sought to rely on various provisions within their Terms of Use affording them the right to void winnings based on their server records, rather than what appeared on Ms Durber’s screen. Conversely, the Game Rules stipulated that a prize would be awarded when three and more jackpot symbols appeared on the screen and the value of the jackpot would then be determined by  the spinning wheel landing on the ‘Monster Jackpot’ pizza slice. The key principle here was that of “What you see is what you get” and the judgement was unequivocal in supporting the right of consumers to expect that what their screen tells them is correct, true and reliable.

This case offers a wide array of lessons that operators should heed and here are my top five:

1. Game Rules – all too often, lawyers are asked to review Terms and Conditions without also being asked to review the individual Game Rules which can (as was the case here) result in a costly disconnect between the two.
2. Consumer Protection – the Terms and Conditions should be clear, unambiguous and as user friendly as possible. In both this case and the Betfred case, the judges were highly critical of the imbalance of bargaining power in the Terms and Conditions. Operators are definitely stuck between a rock and a hard place on this. Those of us embedded in the industry will be aware that this imbalance has evolved over many years as a result of some players engaging in foul play and so the temptation is to stock the Ts&Cs high with protectionist wording. Whilst there is nothing wrong with this, the Courts are only really interested in how the Ts&Cs address the specific matter at hand and so the aim must always be to ensure that user terms are, above all else, crystal clear and easy to navigate.
3. Signposting – once again, unusual or onerous clauses must be clearly flagged to consumers to be enforceable. An important clause cannot be buried without sufficiently being drawn to the consumer’s attention.
4. Game Content Agreements – whilst not specifically an outcome of this decision, operators should always ensure that their content providers are liable for software errors that award erroneous winnings. Game providers will often seek to exclude or limit their liability but this should be vigorously challenged by operators during contract negotiations.
5. Public Relations – the gaming industry enjoys very little positive coverage in mainstream media and is generally perceived with suspicion (often unfairly) by the public. In assessing their position, Operators should be more self-reflective when analysing the facts and show greater empathy with their customers where there is a genuine cause for complaint (regardless, in some cases, of what the Terms and Conditions say). Terms of Use are vitally important but should not always wag the dog.

The above list is non-exhaustive but is a good starting point as a set of actions that Operators should pro-actively take on board in response to this latest decision.