The spread betting bookmaker claimed summary judgment in respect of a consumer, Mr Cochrane, who had made certain initial personal trades with significant profitability. In his absence, without his knowledge and authorisation, his account was tinkered with by a child who, by playing on the computer, effected through it a number of ‘trades’ which caused tens of thousands of pounds worth of loss on the account. The Claimants sued on a clause that deemed the Defendant to have authorised all trading under his account number.
Held: Summary judgment was refused. The Claimant’s analysis was wrong: the terms did not form part of any contract, but even if they did, the clause in question fell foul of the consumer protection provisions proscribing reliance upon unfair terms, and: ‘A further, and compounding, factor to be taken into account is the manner in which the clause was incorporated into any contract (if there was one). As I described earlier, the potential customer was told that four documents, including the Customer Agreement, could be viewed elsewhere on-line by clicking ‘View’. Many, one might suspect most, would have passed up on that invitation and proceeded directly to click on ‘Agree’, even though it was suggested that they should do so only when they had read and understood the documents. Even if, exceptionally, the Defendant in fact chose to look at the documents, he would have been faced in the Customer Agreement alone with 49 pages containing the same number of closely printed and complex paragraphs. It would have come close to a miracle if he had read the second sentence of Cl 10(3), let alone appreciated its purport or implications, and it would have been quite irrational for the Claimant to assume that he had. (In most cases, the limited time spent on the on-line application would in any event probably preclude any serious perusal of the documents). This was an entirely inadequate way to seek to make the customer liable for any potential trades which he did not authorise, and is a further factor rendering the second sentence of Cl 10(3) an unfair term.’
Judges:
David Donaldson QC (sitting as a Deputy High Court Judge)
Citations:
[2012] EWHC 1290 (Comm)
Links:
Statutes:
Unfair Contract Terms Act 1977
Jurisdiction:
England and Wales
Cited by:
Cited – Green v Petfre (Gibraltar) Ltd (T/A Betfred) QBD 7-Apr-2021
Onerous Contract Terms Unclear – Not Incorporated
The claimant said that he had won a substantial sum on the online gaming platform operated by the defendants, but that they had refused to pay up. The defendants said that there had been a glitch in the game. The court faced a request for summary . .
Lists of cited by and citing cases may be incomplete.
Contract, Consumer
Updated: 26 October 2022; Ref: scu.459904