Calvert v William Hill Credit Ltd
|England & Wales
|MR JUSTICE BRIGGS,Mr Justice Briggs
|12 March 2008
| EWHC 454 (Ch)
|Case No: HC07CO1365
|12 March 2008
 EWHC 454 (Ch)
Mr Justice Briggs
Case No: HC07CO1365
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Hearing dates: 20 th—29 th February 2008
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION – GAMBLING AND THE LAW
This case raises, for the first time in an English court, the question whether there are any circumstances in which a bookmaker can incur liability in negligence in respect of the gambling losses of a customer who is, and who is known by the bookmaker to be, a problem gambler. More specifically, the question is whether a bookmaker who has, at the customer's request, undertaken to prohibit the customer from gambling for a specified period, owes the customer a duty to take reasonable care to enforce that prohibition, so as to protect the problem gambler from the risk of gambling losses during the specified period.
In , at 368, Lord Hoffmann said that:
“…there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed….”
Lord Hoffmann was speaking about harm in the form of personal injury or death. Although the unrestrained continuation of gambling, whether profitable or loss-making, may cause or aggravate what is now a recognised psychiatric disorder, the harm for which compensation is mainly sought in the present case, namely the financial ruin caused by gambling losses, represents economic loss. It follows that the recognition of a common law duty to protect a problem gambler from self-inflicted gambling losses involves a journey to the outermost reaches of the tort of negligence, to the realm of the truly exceptional.
The question whether there existed a duty of care in the present case is further complicated by the fact that the relevant gambling losses were sustained during the period of gestation of a radical change in the attitude of the law towards gambling, which was itself the product of changing social attitudes. Although the common law did not impose any general disability on gaming contracts, section 18 of the Gaming Act 1845 provided that all gaming or wagering contracts should be null and void. The policy behind this legislation was to discourage gambling: see Limited , at 548 per Viscount Simon.
In its March 2002 White Paper entitled “Safe Bet for Success”, proposing a new legislative and regulatory framework for the gambling industry, the Department for Culture, Media and Sport said this, under the heading “Dealing with the Downside”:
“In the Government's view the law should no longer incorporate or reflect any assumption that gambling is an activity which is objectionable and which people should have no encouragement to pursue. It is an important industry in its own right, meeting the legitimate desires of many millions of people and providing many thousands of jobs.
But gambling also presents particular risks to children and the vulnerable which other forms of leisure do not. Too early exposure to gambling can be harmful; and for some people the temptation to gamble to excess is very hard or in practice impossible for them to control. While the law should be morally neutral to gambling, it should, as the review body recommended, also provide proper controls and protections for those who may be or already have been damaged. By international standards the incidence of problem gambling in Great Britain seems to be low. But there are no grounds for complacency. There is not yet a reliable run of figures; and even on the low rate of problem gambling suggested by a recent survey there are still between 275,000 and 370,000 problem gamblers at any time.
It is impossible to do away with problem gambling; and excessive controls could make matters worse by encouraging the growth of illegal gambling. The Government does not think that, at least for the time being, it would be sensible to try to put in place a numerical target for reducing problem gambling. But it is clear that the law should provide assurance that all parts of the industry will operate to the highest standards of social responsibility, recognising, that the strength of the controls embodied in the law will need to be kept under careful review and adjusted if necessary.
There are therefore two sides to the issue: a set of statutory safeguards governing specific gambling activities, and – running alongside them – a commitment by all licensed gambling operators to conduct their business in a way which is socially responsible. The Government agrees with the Review Body's conclusion that the Gambling Commission should issue formal codes of practice in relation to social responsibility which should become part of the conditions of licences to operate. These codes should cover such matters as the avoidance of encouragement of children to gamble; provision for players to bar themselves from gambling; the display of clear information about the probabilities of winning and losing; and the provision of information to customers about problem gambling and what people who think they might need help should do. The codes should apply as much to gambling provided on the internet or through interactive television as to traditional gambling outlets.”
That summary of policy was in due course reflected in the Gambling Act 2005. With effect from 1 st September 2007 the longstanding statutory prohibition on the enforcement of gaming contracts was repealed. More generally, the Act established a new licensing regime supervised by a new Gambling Commission. Section 1(c) of the Act defined as one of the three licensing objectives “protecting children and other vulnerable persons from being harmed or exploited by gambling”. Section 22 required the Gambling Commission to “aim … to pursue, and wherever appropriate to have regard to, the licensing objectives”, and for that purpose to prepare, and keep under review, a Statement of Principles.
The quid pro quo for the removal of the traditional ban on the enforcement of gaming contracts was that persons providing facilities for gambling activity were subjected to a licensing requirement which might (and in due course did) impose conditions including the putting into effect by licensees of policies and procedures intended to promote socially responsible gambling, including a commitment to the identification and treatment of problem gamblers. The Commission was by section 24 of the Act required to issue codes of practice about the provision of gambling facilities describing (in particular) facilities for the purposes of “making assistance available to persons who are or may be affected by problems relating to gambling”. By section 24(8) a failure to comply with a provision of a code did not of itself give rise to criminal or civil liability but, by section 24(9) a code:
“(a) shall be admissible in evidence in criminal or civil proceedings,
(b) shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant,
The Gambling Commission published its Licence Conditions and Codes of Practice in November . Section 2.1 of the Commission's principal Code of Practice required licensees' policies and procedures for socially responsible gambling to include certain specific policies and procedures designed to combat problem gambling including, under section 2.5, headed “Self-Exclusion”, the following requirement:
“Licensees must put in place procedures for self-exclusion and take all reasonable steps to refuse service or to otherwise prevent an individual who has entered a self-exclusion agreement from participating in gambling.”
The participants in the United Kingdom gambling industry, of which the William Hill group is a prominent member, did not wait for the coming into force of the Gambling Act 2005, or for the publication of the Commission's Licence Conditions and Codes of Practice before taking active steps to establish their own policies and procedures, for the purpose of demonstrating and putting into effect a commitment to social responsibility. For present purposes, it is sufficient to refer to the steps taken by the Association of British Bookmakers (“the ABB”) and the Remote Gambling Association (“the RGA”). The William Hill Group is a member of both of them. The ABB (founded in 2002) is an association of Licensed Betting Shop operators. It issued its Social Responsibility and Good Practice Code for Licensed Betting Offices in association with GamCare, a charitable body set up and funded by the gambling industry for the provision of assistance to problem gamblers. It was published by 2006, and contains in heavy type the following introduction:
“The responsibility for an individual's gambling is their own; the responsibility to...
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