A tale of two jackpots: The key differences between Durber v PPB Entertainment and Parker-Grennan v Camelot

• Durber 
  The player was playing a slots game and activated the jackpot wheel feature. The RNG determined the player had won a £20,000 daily jackpot, but (due to a human coding error) the player was shown the winning animation for the main £1 million jackpot. 
• Parker-Grennan 
  The player was playing an instant win game, in which a prize would be awarded if the player had two matching numbers. The RNG determined the player had won £10 and displayed two flashing numbers worth £10. Due to a coding error, the game also displayed two other matching numbers, worth £1 million, but these were not flashing. The screen stated "match any of the winning numbers to your numbers to win a prize". 

• Durber 
  There was an inconsistency between the Game Rules and the other Terms. The Game Rules stated: "Spin the jackpot wheel to determine which of the offered jackpot tiers will be won". The court held that this meant the outcome of the game would be determined by what the player saw on her screen. The court noted that this did not reflect what happened in the background (where the outcome was determined as soon as the play started, and the spinning jackpot wheel was effectively 'just for show'). But players would expect to receive the prize shown on their screen (ie players expected the principle of WYSIWYG to apply). The terms indicated that, in the event of any inconsistency, the Game Rules would prevail over the other Terms (which indicated that the result would be determined by the operator's records of the win allocated by the RNG).   
• Parker-Grennan 
  The Game Rules stated: "This Game is a game of chance. The outcome of a Play in the Game is pre-determined by Camelot's Computer System at the point of purchase. You are not required to exercise any skill or judgement to win a Prize". This was consistent with how the gameplay operated and how gameplay was set out in other terms. Therefore there was no inconsistency in the different terms regarding how the gameplay worked. 

Key takeaway: Avoid inconsistency between the Game Rules and the other Terms. Be aware that the Game Rules may be regarded as creating binding contractual terms (rather than merely serving as an informal player guide). Where appropriate, include drafting in the Game Rules indicating that large wins are subject to a verification process, and/or that outcomes are as determined by the RNG. Be careful about wording which suggests that the animation "determines" the prize if this is not accurate. 

• Durber 
  The Terms included a clause stating: "In the event of a discrepancy between the results displayed on your computer and a Game's records on our server, our records shall be regarded as definitive". The judge held obiter that this wording was unusual and onerous, as it effectively rendered the player's screen display irrelevant (which was contrary both to what players would expect, and also what the Game Rules said) and it was unchallengeable. The clause was also deemed by the judge to be unenforceable under the Consumer Rights Act 2015. ​​​​​​
• Parker-Grennan 
  The terms stated that "Camelot may declare a Play invalid (and will not be obliged to pay any Prize) if: …(e) the outcome of a Play as displayed on the Game Play Window is inconsistent with the result of that Play as predetermined by Camelot's Computer System". The judge at first instance acknowledged that this clause could be onerous in certain hypothetical situations, such as if a major software error caused the player's screen to display a £1 million win. However, since there was no inconsistency between the screen outcome and the server outcome, Camelot did not rely on the clause, and the judge did not consider it further. The Court of Appeal in Parker-Grennan agreed, noting that "questions might arise as to whether Camelot would be entitled to rely on that Clause" if the screen display had said she had won £1 million. 

Key takeaway: A clause stating that an operator may declare a win invalid if the screen display is inconsistent with the RNG may be considered unenforceable, depending on the circumstances. To increase the prospects of enforceability: (a) the principle that the RNG determines the result should be highlighted consistently throughout all terms (including the game rules); (b) the clause will state that the operator will resolve any problems acting reasonably (rather than in its absolute discretion); and (c) the clause will be clearly signposted to consumers. Note that there is still a risk that the clause may be considered unenforceable under consumer protection legislation. 

• Durber 
  In relation to an inconsistency between the screen display and RNG, the Terms stated: "our records shall be regarded as definitive". The judge commented that this was a 'conclusive evidence clause' which put the player at an unreasonable disadvantage when seeking to prove that the screen display accurately displayed a win and there were no system or communication errors. This contributed to his finding that it was onerous and unusual. The clause was also deemed by the judge to be unenforceable under the Consumer Rights Act 2015. 
• Parker-Grennan 
  Camelot had a 'validation process' in their terms to ensure the integrity of the game. Their terms specified in clause 12.1 that Camelot's decision on whether a play is valid would be final and binding "provided that it is a reasonable decision". The Court of Appeal stated that as to whether such clause is onerous, "the built-in safeguard, here expressly spelled out, is that the decision must be reasonable".  The Court of Appeal also found the clause led to a significant imbalance under consumer law but decided that it was not incorporated or applied by Camelot in a manner or to an extent that was contrary to the requirement of good faith, therefore it was enforceable. 

Key takeaway: When drafting clauses that involve the 'final and binding decision' of the operator, ensure that you include wording such as 'provided that it is a reasonable decision' to reduce the likelihood of the clause being onerous and unusual. Also make sure that it is not incorporated or applied in a manner that is contrary to good faith to avoid breaching consumer legislation. 

• Durber  ​​​​​
  The exclusion clause stated "In the event of systems or communications errors relating to the generation of any result, bet settlement or any other element of a Game, we will not be liable to you as a result of any such errors and we reserve the right to void all related bets and plays on the Game in question". The judge said this was drafted widely, and was unusual and onerous, placing all of the risk for the Defendant's errors on the consumer and allowing the operator to avoid liability for errors caused by its gross negligence or recklessness, including specific breaches of the Consumer Rights Act 2015 (CRA). The judge commented that, before ever reaching the need for such an exclusion clause, the operator could have included a validation clause in the Rules for large jackpots. 
• Parker-Grennan 
  Parker-Grennan had a validation process, however it also had a limitation of liability clause which gave Camelot discretion (expressly required to be exercised reasonably) to declare a win defective and either refund the player's stake or offer another play of equivalent price. The Court of Appeal stated that such clauses are not unusual in contracts of this nature, and whether it was onerous did not need to be examined as the Defendant did not need to invoke it to succeed. However, they noted that, as there is a reference to the decision being "reasonable" and the court is the final arbiter of that, so the term cannot be said to be unduly burdensome on the player. 

Key takeaway: Exclusion clauses should not be drafted too widely. To reduce the likelihood of being onerous and unusual, they should refer to any decisions being made reasonably. 

• Durber 
  The court assessed if the exclusion clause for "systems or communications errors" encompassed human programming errors. In other clauses, a distinction had been drawn between "human errors" and "system errors" thus the exclusion clause was held to be inapplicable to human errors. Applying the contra proferentem rule, which favours the consumer in cases of ambiguity, the court concluded that the exclusion clause did not cover human errors due to inconsistent drafting. 
• Parker-Grennan 
  The court in this case did not look at the meaning of "systems or communications errors". 

Key takeaway: Consistency in drafting is really important, not only between multiple documents, but between multiple uses of the same phrase within a contract. 

• Durber 
  The Terms were structured in a way that made it challenging for consumers to access and comprehend them fully. The exclusion clause, which was central to the dispute, was not properly headed, was not listed in the index to the Terms of Use, and was not mentioned or referred to in the Game Rules. It was neither in bold nor capitals, nor highlighted; instead, it was embedded in the middle of 45 pages of small print. Additionally, it was not referred to on screen when the consumer started playing or at any point. Furthermore, the Terms consisted of multiple differently located documents, making it difficult for consumers to see the whole contract in one place at one time. 
• Parker-Grennan 
  The network of contractual provisions was clearly drafted. The Terms were well signposted through various hyperlinks, and in particular, the Game Rules were very readily accessible and provided hyperlinks to other contractual provisions. The court noted that these terms were written in plain, comprehensible English, and the consumer had a real opportunity to become acquainted with them before accepting. 

Key takeaway: Ensure that consumer terms are clearly drafted, with consistent and correct hyperlinks, indexed with appropriate subheadings, and are not too complicated for a consumer to follow. 

• Durber 
  Updates to the Terms were usually communicated to consumers via a consumer service announcement; however, there was no evidence of such an announcement regarding the applicable terms in the case. 
• Parker-Grennan 
  Updates of any significance required acceptance by the Claimant by her clicking a button marked "Accept". At the relevant time, the Claimant was presented with a drop-down menu revealing a summary of the changes, as well as hyperlinks to the complete versions of the new sets of provisions. 

Key takeaway: Ensure there are appropriate policies and processes in place to notify consumers of updates eg requiring acceptance from consumers through a clear "Accept" button for significant updates. Providing access to summaries and full versions of the updated terms enables consumers to be adequately informed.