Excluding liability for online game errors – construing the priority, incorporation and enforceability of contract terms

Durber v PPB Entertainment Ltd [2025] EWHC 498 (KB)

The question

Following a mapping error that misrepresented the prize won by an online player, how did the court determine the priority, incorporation and enforceability of an online game operator's contract terms to determine the game's correct payout?

The key takeaway

Game operators seeking to rely on their terms and conditions, including clauses that seek to exclude or limit liability, in the event of a game mapping error will need to provide easy navigation of the relevant terms and conditions and game rules and clear signposting of onerous and unusual terms.

The background

Corrine Pearl Durber (the Customer) placed a bet in an online slots game owned and operated by PPB Entertainment Limited (Paddy Power). On spinning the wheel as part of the game play, the game's on-screen animation lit up and informed the Customer that she had won the game's "Monster Jackpot" of £1,097,132.71. Paddy Power, however, only paid out the "Daily Jackpot" of £20,265.14.

The Customer complained about the shortfall. Paddy Power explained that the computer system which ran the game on the site had made an error which resulted in the wrong Jackpot prize being shown on her display. The computer system should have pointed to the Daily Jackpot (which was the correct prize according to the Random Number Generator Software (RNGS) behind the game) but, because it had been mal-programmed, it pointed to the Monster Jackpot instead.

Relying on what she was shown on screen when she won (under the game rules), she brought a claim against Paddy Power, claiming for the difference between the Daily Jackpot, which was credited to her account, and the Monster Jackpot. Paddy Power defended the claim based on the terms and conditions entered into and agreed to by the Customer when registering an account with them in 2011 (the Conditions). Specifically, Paddy Power relied on clauses one and two of Part B of the Conditions (referred to as clauses B1 and B2):

"Random Number Generator

1: You fully accept and agree that random number generator ("RNG") software will determine all outcomes of Games on the Games Website. 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. [clause B1]

Errors

2: 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." [clause B2]

Under clause B1, Paddy Power argued that the results held on the game's server, dictated by the RNGS, prevailed over the prize shown on the Customer's display. They said that the Customer had been the victim of a "mapping error" affecting the animations which misrepresented the prize shown to her on screen. Alternatively, under clause B2, Paddy Power submitted that it was not liable for payment relating to the result displayed on screen in error.

The Customer's position was that the contract arose on the day when she accessed the game; that it included the game rules and that her win was in accordance with the game rules which had priority over clause B1 of the Conditions due to the preamble to Part B which stated: "In the event of any inconsistency between these Conditions, the Terms and Conditions or the Rules, unless otherwise stated, to the extent of the inconsistency, the Rules shall prevail…". She also argued that the contract between the parties included the Conditions but any effect of clauses B1 and B2 was subject to them having been validly incorporated into the contract and being enforceable under the Consumer Rights Act 2015 (the CRA).

In the course of arguments, the Customer highlighted that the Conditions ran to 44 pages of closely typed small print with numerous hyperlinks to other pages. The terms purported to unilaterally place draconian limitations on the relationship and no reasonable consumer could be expected to read and understand the terms, especially the terms relied upon by Paddy Power. The Customer argued that those terms should have been expressly highlighted to the Customer both prior to opening the account and on each subsequent occasion that the Customer utilised the services.

The decision

The court found in favour of the Customer, ordering Paddy Power to pay her the difference between the Daily Jackpot and the Monster Jackpot. The court's approach to construing the contract terms between the Customer and Paddy Power was as follows:

• It looked at the contract in the context of the type of transaction, online gaming, where the only communication between Paddy Power and the Customer was through her computer screen.
• It started with the game rules – having considered the natural meaning of the words in the game rules it then construed them by applying prospective commercial common sense. The court found that an objectively reasonable player with the background knowledge available to the parties at the time of entering the contract would construe the games rules as providing that what determined a win for a player was based on a "what you see is what you get" approach after a spin of the wheel.
• The court did not believe that players would understand that the normal approach is that there would be a secret determination, not shown on screen, which undermined or contradicted what was shown on screen.
• The game rules did not set out any caveat for validation of a player's win after the spin was over nor did they tie winning to any unseen RNGS output, server records or official winnings list to be consulted or checked before a win was determined.
• In addressing the Conditions, the court found clause B1 to be irreconcilable with the game rules. At no point did the game rules state that they were subject to the Conditions and, although clause B1 sought to address discrepancies between on-screen winnings and behind-the-scenes programming, this was not sufficient to supersede the terms of victory as prescribed by the game rules. The court relied on the priority clause in the preamble to Part B of the Conditions which held that the game rules would take precedence where there was inconsistency between the two.
• The court construed the words "systems or communications error" in the exclusion clause, B2, as not covering human error (when human error was found to be the cause of the mal-programming in Paddy Power's software).

The court did not need to go any further on the issues as it had found in favour of the Customer, however it went on to address whether clauses B1 and B2 were incorporated into the contract and were enforceable under the CRA.

On incorporation, it considered whether the clauses were "unusual and onerous" and as such had to be fairly brought to the notice of the consumer. Both clause B1 and B2 were found to be unusual and onerous:

• B1 because the game rules did not state that the displayed jackpot could be inaccurate or was only indicative, nor that the computer records took precedence.
• B2 because it purported to allow Paddy Power to avoid liability: where errors in what was displayed on screen were caused by its own recklessness, or negligence; for several different types of breach of the CRA such as providing digital content which is "fit for its purpose": and for payment of the Monster Jackpot which contradicted the Customer's reasonable expectations under the game rules.

There were a number of reasons given as to how Paddy Power had failed to fairly bring these terms to the notice of the consumer: the clauses were not clearly listed in the index; they were not bold, capitalised or highlighted; clause B2 was not clearly defined as an exclusion clause; both clauses sat in the middle of 45 pages of small text; and neither were referred to on screen at any time the Customer was playing the game.

On enforceability, clause B2 created "a very wide exclusion" entitling Paddy Power to avoid all liability. The court also held that the clauses were contrary to the requirement of good faith under section 62 of the CRA, on the basis they had caused a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

Why is this important?

While the court confirmed that there is nothing inherently unfair in a clause excluding liability for the excess sums caused by displayed wins which are actually losses under the games rules/wider contract due to a specified no fault error, the case shows that game operators seeking to rely on often complicated contractual setups that make it difficult to signpost key terms, can face significant challenges in avoiding liability for game errors.

Any practical tips?

When seeking to rely on unusual or onerous clauses, ensure that they are clearly brought to the consumer's attention. Think highlighting, capitalisation and front and centre. Consider whether the clauses are transparent and fair, as those considerations increasingly take front of stage in a growing body of consumer-focused legislation and case law.

Where a contract is complex and contains clauses detrimental to the consumer (e.g. potentially depriving them of a large cash prize) ensure consistency within the document and across multiple documents and clarity in drafting key terms such as here, the error clause.

For long term contracts such as this one, involving game play over many years, periodically check the customer's journey through (inevitably) multiple hyperlinking documents. Check that the customer can navigate easily to key documents and terms and that the website's setup allows them to understand the full scope of the terms which govern the contract. When terms of use are materially amended consider how best this can be communicated to the customer such by use of pop-up messages at login requiring customers to click their agreement.