Joan Parker-Grennan v Camelot UK Lotteries Ltd

Hearing date: 12 December 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 1 st March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

Whether we like it or not, we are living in a digital era. Online shopping, which was a novelty not so many years ago, has become the norm rather than the exception. Indeed, it has been blamed for the demise of several well-known High Street retailers. Consumers like the speed, convenience, and ease with which they can conduct transactions online, and other advantages such as being able to have goods delivered directly to their door, and not being tied to normal shop opening hours.

However, for the trader providing goods or services online, there is one big dilemma. How do they bring their standard terms and conditions of trading sufficiently to the attention of their prospective customer to incorporate them in the contract of sale or contract for services, without testing their patience so much that they decide to take their custom elsewhere, and without impeding the rapid turnover which may be the key to the profitability of their trade? 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”?

The rules derived from the leading authorities concerning the incorporation of standard terms into a contract pre-date the digital era. They are helpfully summarised in a passage in Chitty on Contracts (at 15-010 of the current, 34 ^th edition) which Mr Justice Jay (“the Judge”) quoted at paragraph 43 of the judgment in the court below, and is worth setting out again here:

“It is not necessary that the conditions contained in the standard form document should have been read by the person receiving it or that they should have been made subjectively aware of their import or effect. The rules which have been laid down by the courts regarding notice in such circumstances are three in number:

(1) If the person receiving the document did not know that there was writing or printing on it they are not bound (although the likelihood that a person will not know of the existence of writing or printing is now probably very low);

(2) If they knew that the writing or printing contained or referred to conditions, they are bound;

(3) 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.”

Those rules can operate to the disadvantage of parties who have less bargaining power than the person whose terms and conditions are incorporated in the contract. In practice, irrespective of whether they have read them, they have no choice but to accept those terms and conditions if they wish to continue with the transaction.

In recognition of this, the law has developed over time with the aim of eliminating any unfairness to the weaker party. Initially this was done by introducing a requirement that steps must be taken to bring “onerous or unusual” clauses specifically to the attention of the other contracting party (in general, the more outlandish the clause, the greater the notice required — see e.g. Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433, per Bingham LJ at 443C-D). Subsequently Parliament has enacted consumer protection legislation which has enabled the courts to find that unfair terms, even if they have been incorporated in the contract, are unenforceable against a consumer. At the time of the events with which this appeal is concerned, the relevant powers were contained in the Unfair Terms in Consumer Contracts Regulations 1999 (1999 S.I. No. 2083) (“the UTCCR”). They have since been superseded by the Consumer Rights Act 2015, although the provisions of that Act that would have applied had the relevant transaction taken place after it came into effect are essentially the same.

This case is not about online retail but about online gambling, but it has squarely raised the issue of what needs to be done to incorporate standard terms and conditions into a contract for goods or services 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.

On behalf of the Appellant, Mr Couser invited the Court to consider whether the rules of incorporation, as summarised above, required adaptation to meet the demands and dangers of online trading, and to use this opportunity to lay down principles of general application, or at least to give some guidance as to what will and will not suffice to bring standard terms and conditions to the attention of the consumer.

In this context Mr Couser drew the attention of the Court to a report of the Law Commission and the Scottish Law Commission of March 2013 entitled: “Unfair Terms in Consumer Contracts: Advice to the Department for Business Innovation and Skills”. That report, though little more than a decade old, reflected a digital environment far removed from that which operates today. It was, itself, an exercise in which the Commission revisited a report it had published, in conjunction with the Scottish Law Commission, in 2005. Even in 2013 the Law Commission recognised that consumers rarely read “small print”, a concept which, as it stated, is not just about font size, but also “marked by poor layout, densely phrased paragraphs and legal jargon”. The paper recommended that all small print terms should be assessable for fairness, including those which related to the main subject-matter of the contract or the price.

The present case concerns a large consumer-facing company operating in a regulated environment, whose terms and conditions, standing back, are not unduly complex or controversial and are written in plain, comprehensible English. However, the Court is well aware that there are many companies, organisations and entities which operate at the other end of the spectrum from Camelot, and whose terms and conditions are complex and opaque and not, in truth, designed to be read or understood. These may contain, lurking within their hidden depths, many pitfalls highly disadvantageous to the consumer. The advice of the Law Commission could well be very different if tendered today.

Nevertheless, this judgment is not the place in which to lay down principles of general application or to consider how the law might apply in other circumstances. The Court is not equipped with the evidential material to embark upon such an exercise. It was noteworthy that, in response to a question from the Court, Mr Hinks, counsel for the Respondent, informed us on instructions that his client did not keep statistics as to the number of consumers who click on the drop-down menus or hyperlinks to access its various sets of terms and conditions.

FACTUAL BACKGROUND

The Appellant, Mrs Parker-Grennan, had an online National Lottery Account which she first opened in February 2009. The Respondent, Camelot, was at all material times the licensed operator of the National Lottery. When the Appellant opened the account the following appeared on the screen:

“ Terms and Conditions

Required fields are marked with an asterix (*)

By ticking the box below you confirm that if you play the National Lottery Games interactively you have read, accept and agree to be bound by the Interactive Account Terms and Conditions, Rules for Interactive Instant Win Games and Rules for Draw-Based Games Played Interactively.

In addition, when you play a particular game you agree to be bound by the relevant Game Procedures and any Game Specific Rules that apply to that game and confirm your acceptance of the Privacy Policy.

I have read, accept and agree to be bound by the relevant Terms and Conditions and Rules of this website and the Privacy Policy of this website.”

To the right was a box marked with an asterisk next to which appeared the words “Accept terms and conditions” and a button marked “confirm”. To the left was a button marked “quit”. The Appellant clicked to tick the box and clicked “confirm” (a procedure known as “click-wrap”). At the bottom of the page was a box with a link to the Account Terms, which then ran to many pages of very small print and contained hyperlinks to the other terms and conditions mentioned in the text on the screen.

In August 2015, Camelot introduced a new Interactive Instant Win Game (“IWG”) entitled “£20 Million Cash Spectacular” (“the Game”). IWGs are games of chance which are available to play on the National Lottery Website, in which registered players like the Appellant have a chance to win a cash prize. The screen on the Website displaying the details of a particular IWG is known as the “Game Details Screen” (sometimes referred to as the “Game Play Window” – nothing turns on this difference in nomenclature). The entry by a player into an IWG by the purchase of a ticket online is termed a “Play” and each ticket is allocated a unique Play Number. To play the Game...