Right to void bet or gameplay for technical error comes under scrutiny

Betfred has been hitting the national and industry media headlines for all the wrong reasons in the last few days; see for example:

In summary, the circumstances giving rise to those headlines are as follows:

  • A customer of Betfred Casino, Andrew Green, is suing Betfred after it refused to pay out to him £1.7million that he had won in January this year, whilst playing Frankie Dettori’s Magic Seven on his phone;
  • Betfred initially told Mr Green that he would not receive his winnings because there had been a “software malfunction” but offered him £60,000 in settlement, which Mr Green declined;
  • Following a preliminary High Court hearing earlier this week, Betfred said: “Unfortunately, and as Mr Green is aware, a new game release by Playtech, a leading game supplier of ours, suffered a software malfunction in January this year and no legitimate jackpot win occurred. Given that Mr Green is currently exploring his legal options, it would be inappropriate for us to comment further”;
  • According to the media reports, Mr Green’s solicitor said that Betfred had refused repeated requests to provide evidence of the malfunction, explaining that that it did not have the game data and could not force Playtech to hand it over;
  • Gambling Insider reports that Playtech told it: “Playtech processes over one billion transactions a day and we work tirelessly on the integrity and reliability of our software. On this occasion, there was a technical issue and we worked with our partners to respond as quickly as possible, fix the issue and restore the game to full functionality. We regret any distress caused to Mr Green but, given that this is now a legal matter, it is inappropriate for us to comment further”.

In our view, it is likely that Betfred is seeking to rely on the “Events outside our control” and “Errors or omissions” provisions within its Terms & Conditions, the latter of which states as follows:

1  We very occasionally have errors which affect our Website and Services, we try our best to avoid them but it is not always possible. This section sets out how we define and deal with them.

2  We class the following as “Errors”:

(a) where there has been an obvious pricing error or system failure which leads to incorrect prices, lines or handicaps being displayed (“Pricing Error”) or

(b) where problems occur in the software or hardware used by us to provide our Services or Website (“Technical Error”)

3  Any bets or gameplay which is subject to an Error will be deemed void and all bets and game play cancelled, including multiples.

[This sub-clause is omitted because it deals with Pricing Errors]

5  Where a Technical Error occurs, we shall take all reasonable steps to remedy the problem as soon as practicable. Where it causes a game to be interrupted in circumstances where it cannot be restarted from exactly the same position (without detriment to you or other users) we will take all reasonable steps to treat you in  a fair manner: which may include adjusting your Deposit Balance and Bonus Balance to the position existing following completion of the last bet or game logged on our server immediately prior to the Technical Error occurring.

6  Any monies which are credited to your Deposit Balance and Bonus Balance, or paid to you as a result of an Error shall be deemed, pending resolution, to be held by you on trust for us and shall be immediately repaid to us when a demand for payment is made by us to you. Where such circumstances exist, if you have monies in your Deposit Balance and Bonus Balance we may reclaim these monies from those funds.

7  Where you have used monies (which have been credited to your Deposit Balance and Bonus Balance or awarded to you as a result of an Error) to place subsequent bets or play games, we may cancel such bets and/or withhold any winnings which you may have won with such monies, and if we have paid out on any such bets or gaming activities, such amounts shall be deemed to be held by you on trust for us and shall be immediately repaid to us when a demand for payment is made by us to you.

It will be very interesting to see how this case pans out, particularly given the interest in such clauses on the part of the Competition & Markets Authority in its ongoing investigation into contractual terms relied upon by online gambling operators, further information on which is published here (and reported by us on our website as and when developments occur).