Calvert v William Hill Credit Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer:,President of the Queen's Bench Division |
| Judgment Date | 16 December 2008 |
| Neutral Citation | [2008] EWCA Civ 888,[2008] EWCA Civ 1427 |
| Docket Number | Case No: A3/2008/0835,Case No: A3/2008/0835/A |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2008 |
[2008] EWCA Civ 1427
President Of The Queen's Bench Division
Lord Justice Lloyd and
Lord Justice Etherton
Case No: A3/2008/0835
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
THE HON MR JUSTICE BRIGGS
Royal Courts of Justice
Strand,
London, WC2A 2LL
Simon Browne-Wilkinson QC and Anneliese Day (instructed by Collins Benson Goldhill llp) for the Appellant
Justin Fenwick QC and Rebecca Sabben-Clare (instructed by Dechert LLP) for the Respondent
Hearing dates: 16 th and 17 th October 2008
This is the judgment of the Court.
Introduction
In 2006, Mr Calvert, the claimant, was a compulsive gambler. He was a trainer of greyhounds in Sunderland. In 2005 and the earlier months of 2006, he would on occasions stake huge sums of money, mainly on greyhound races, with a succession of bookmakers. Generally speaking during this period his winnings were greater than his losses; and two bookmakers came to decline to accept his bets. Also during this period, his compulsive gambling condition became worse. In May 2006, when he started telephone betting with William Hill Credit Limited, the defendants, he had become a pathological gambler. In periods of calmer lucidity, he was aware that his gambling was at times uncontrolled and potentially destructive.
In the summer of 2006, the Gambling Act 2005 had been enacted but was not yet in force. Bookmakers had known, at least since a Government White Paper entitled “Safe Bet for Success” of March 2002, that the Gaming Act 1845 was soon to be substantially revised, so that for example gambling contracts would become enforceable, but under a system of regulation. Part of the regulations would address the problem of compulsive gamblers. In advance of the coming into force of this legislation, William Hill, together with other bookmakers under the aegis of the Association of British Bookmakers and the Remote Gambling Association, had voluntarily adopted Codes of Practice for dealing with problem gamblers. One approach was to offer problem gamblers who had accounts and dealt with the bookmaker on the telephone a form of self-exclusion agreement. Such an agreement might take various forms, but typically could be a request by the problem gambler to close his account, and a further request by him to the bookmaker to agree not to accept telephone bets from him for a period of 6 months. This would not necessarily stop him gambling; for the bookmaker could not prevent him from going to another bookmaker or from betting on the internet. Nor would it in all cases stop the gambler betting with the bookmaker, if, for instance, the self-exclusion agreement related only to telephone betting. But it would at least limit the gambler's opportunity for gambling self-destruction.
Facts
On 2 nd May 2006, Mr Calvert opened his first telephone betting account with William Hill. He began to place bets immediately. On 9 th May 2006, he indulged in his first telephone betting frenzy with William Hill. In the space of little over 4 hours, he staked a total of £336,600, with a final bet of £79,600, ending the day £139,200 ahead. All this led him to a “moment of clarity and horror”. He made contact with William Hill later that evening to close his account and to ask that it never be reopened again. He spoke to an employee called Elaine, who did close the account, but whose actions significantly departed from William Hill's procedures. In the result, no procedure was in place to stop Mr Calvert from reopening the account, although he thought that he had made a self-exclusion agreement. He did abstain from gambling with William Hill for a fortnight or so until 27 th May 2006, when he telephoned William Hill and asked to reopen his account. He was not prevented from doing so. On 5 th June 2006, he embarked on another betting frenzy, during which he staked an aggregate total of £113,000 on four bets in the space of an hour. He won only on the last of these, leaving him £7,000 ahead. Although Elaine's failure was to be criticised as part of Mr Calvert's claim in these proceedings, no viable claim resulted from it because Mr Calvert did not lose money as a result of it.
Later on 5 th June 2006, Mr Calvert made a further self-exclusion agreement with William Hill on the telephone with an employee called John. A transcript of this telephone conversation is reproduced in paragraph 73 of the judgment of Briggs J of 12 th March 2008, from which this appeal is brought by permission of the judge. But John, so it seems, failed to implement this agreement through William Hill's internal systems, so that Mr Calvert's telephone account was not closed and he was not refused further telephone betting with William Hill.
Between August and December 2006, he was not stopped from continuing to place what on any view were sometimes huge bets with William Hill. By this time, he was placing bets on other sporting activities than greyhound racing. Sometimes he won, but often he did not. In the result, he claimed in these proceedings to have lost an amount of £2,052,972.18, including interest and other payments on loans to finance his gambling. His losses between 5 th August 2006 and 2 nd December 2006 were particularised as amounting to £1,920,781.78. He claimed this amount, less £136,000 in respect of betting in William Hill's betting shops, as damages against William Hill alleging that they were in breach of a duty of care owed to him in allowing him to continue to operate accounts with them and to place cash and account bets after 9 th May 2006.
The judge's decision
Mr Calvert's case before the judge proceeded on two bases. First, counsel on his behalf argued for a broad duty of care by which bookmakers would owe some general duty of care to protect problem gamblers from the consequences of their compulsive problems. The judge rejected this and there is no subsisting appeal against this part of the judgment – this to the mild surprise and perhaps disappointment of Mr Fenwick QC, for William Hill, because the judge's reason for giving permission to appeal was that the case for a wider duty of care than he upheld was an issue of real public importance. The judge wrote that, if the wider duty were established, it was arguable that a resulting causation analysis might have a different outcome. Second, Mr Calvert succeeded before the judge on his narrower case that, on the particular facts, William Hill, through John, assumed responsibility to do what John said in the telephone conversation they would do, and that William Hill were in breach of that duty in failing to implement the agreement. The judge found that William Hill had assumed this responsibility and that they were accordingly in breach of duty. William Hill have a respondent's notice which contingently and, we think, half-heartedly seeks to challenge the finding that they were in breach of a duty which they assumed; but the main battleground of this appeal lies elsewhere.
Having held that William Hill were in breach of the limited and particular duty to take reasonable care to prevent Mr Calvert from gambling with them on the telephone for a period of 6 months, the judge held that the particular losses which Mr Calvert sustained between August and December 2006 by reason of his telephone betting with them would not have been sustained but for their negligence. Mr Browne-Wilkinson QC, for Mr Calvert, says that this finding should have concluded the causation analysis and without more entitles Mr Calvert to damages in the net amount of his telephone betting losses during that period.
But the judge did not so find. He said that ultimately causation is a matter of common sense. In his opinion, it would fly in the face of commonsense and be a travesty of justice if a problem gambler were able to attribute liability for the financial ruin, which Mr Calvert soon suffered, to a particular bookmaker with whom he had made the relevant financial losses due to their failure to exclude him at his request, if he would, had he been excluded by that bookmaker, probably have ruined himself anyway by betting with one or more of that bookmaker's competitors. The court therefore had to form a view of what would have happened to Mr Calvert's gambling career if he had been excluded from telephone betting with William Hill. If he would still have ruined himself anyway, the claim must in commonsense fail on causation grounds. Having considered various relevant evidence, the judge was satisfied on the balance of probabilities that, even if Mr Calvert had been deprived of the opportunity to pursue his telephone betting with William Hill in the second half of 2006, he would ultimately have ruined himself financially, although at a slower rate, by the end of 2007. It followed that Mr Calvert's claim failed entirely, including his claim that William Hill's negligence made his psychological gambling condition worse. William Hill's negligence merely affected the manner in which, and in particular the rate at which, a pre-existing pathological gambling disorder caused his financial and social ruin, without in any definable way increasing the aggregate amount of either form of harm. No point is taken on this appeal relating to the timing of the financial and social ruin.
Upon these findings, the question of quantum did not arise, nor did the question of contributory negligence. But the judge said briefly that, if he had found in Mr Calvert's favour on causation, there would have...
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