Win some, lose some: incorporated contract terms come up trumps for National Lottery operator
Have you ever clicked on “Accept Terms and Conditions” on a website without first reading said T&Cs? If yes, be warned and read on. In Parker-Grennan v Camelot UK Lotteries Limited  EWHC 800 (KB), the customer was playing an online game when an apparent coding error suggested she had matched numbers corresponding to a £1 million prize. The High Court considered whether the terms of the gaming procedure for the online game were incorporated into the contract between the website operator and its users.
The case provides a useful example of how contract terms are incorporated in the age of the internet and illustrates the way that websites can rely on their fine print.
The Claimant, Ms Parker-Grennan, purchased a ticket from the Defendant, Camelot UK Lotteries Limited, to play an online interactive "instant win" game. The game was straightforward; animations would display two sets of numbers: the player's numbers and the "winning" numbers. If a player matched a number from both sets, it would correspond to a prize, ranging from just £5 up to £1 million. The animations, however, did not form an integral part of the game as it could also be played without animations, which were intended to make the game more fun.
On 25 August 2015, the Claimant played the game and matched the number 15 on her numbers to the winning numbers, which corresponded to a £10 prize. The number 15 flashed and this prize was announced when she clicked through to finish the game. However, on closer inspection, the Claimant saw that the number 1 also appeared to have matched, which corresponded to the £1 million prize, although the numbers were not flashing, and no prize was announced for them on the final screen. The Claimant had taken a screenshot of the numbers before finishing the game and sought to claim the £1 million prize.
The Defendant gaming company submitted that the outcome of the game was predetermined: a nanosecond after the point of purchase, its computer program would determine whether that particular play had won a prize and the value of that prize in accordance with the odds of the game. The interactive animations were merely fun a way of displaying that predetermined outcome. In the Claimant's case, her play was selected to win £10. A coding error in the animations displayed the two additional matching number 1s, but the Claimant's game was not selected to win the £1 million prize.
The rules of the game
The game procedure for the game at issue in this case explained that there was a 1 in 2.86 overall chance of winning a prize on each play. The procedure stated that the outcome of a play was pre-determined by the Defendant's computer system at the point of purchase, and the game was one of chance rather than one of skill or judgement.
The game procedure further stated that matching numbers would turn white and flash, indicating that the prize had been won, and that players could only
win one prize per play. It also stated that the player must "finish"
the game by clicking through to the final screen where the prize was announced.
Were the rules part of the contract?
The Claimant argued that the words on the game screen did not exclude the possibility of winning twice. Further, the winning numbers on her screen indicated that she had won two prizes and neither she nor any other player had any means of detecting the coding error.
The Defendant argued that the game procedure rules were incorporated into the contract between it and the customers who played its games: in order to play the game, players were required to tick a box confirming that they had read and agreed to the Defendant's Account Terms, the Rules of the Instant Win Games and the Game Procedures. Each set of documents was available via a hyperlink or drop-down menu, and when they were updated from time to time, their reacceptance was required before that customer could play the game.
The Court observed that incorporating terms and conditions in this manner was now commonplace in the age of the internet. It held that, in accordance with the ordinary principles of contract law, the Defendant had done what was reasonably sufficient to give players notice of the terms and conditions. It rejected the Claimant's submission that no reasonable consumer would read those terms and conditions – some consumers might do so. Finally, taken to its logical conclusion, the Claimant's submission was that none of the terms and conditions were incorporated unless they were fully set out on each webpage without hyperlinks, which the Court rejected.
Unusual or onerous terms?
The Claimant also argued that the terms were completely one-sided and put the whole risk on to the consumer. Therefore, they needed to have greater attention drawn to them in order to be incorporated.
The Court accepted the general principle that the test for incorporation of contract terms was flexible: the more onerous or unusual the clause, the greater the notice that should be given to other parties (taking account of the circumstances of the case). In this regard, the Court noted the judgment in O'Brien v MGN Ltd  EWCA Civ 1279 which also involved the terms and conditions of a prize draw. The Court in that case stated that the rules of the prize draw did not impose any extra burden on the claimant or seek to absolve the defendant of liability for significant injury, it "merely deprives the claimant of a windfall for which he has done very little in return."
The Court considered that contractual provisions which explained how the instant win games were to be played were not unusual or onerous: they were to be expected and required. A rule of the game that provides that a player can win only one prize per play is "entirely reasonable and commonplace", particularly when it is understood that the odds are calculated on that basis. Further, it was clear that the game was one of chance, and the outcome predetermined by a computer program, and not the order of the numbers clicked in the animation.
It should be noted that the Court went on to consider the applications of the Unfair Terms in Consumer Contracts Regulations 1999 (deciding the issues in the Defendant's favour), but these have been superseded by the Consumer Rights Act 2015.
This case is a useful illustration of how longstanding principles of contractual incorporation are applied to digital contracts, which are relevant beyond individual customers and are also key to businesses entering into contracts online. The decision also serves as a useful reminder that terms and conditions on websites can, in appropriate circumstances, be incorporated even where the full terms and conditions are not displayed on the webpage in question and so should always be read in full. A useful lesson to us all and to avoid the disappointment no doubt felt by Ms Parker-Grennan, that we should be reading the T&Cs or else be ready to live with the consequences!