Gardner Leader

A Watertight Website Disclaimer?

Chris Felton, Dispute Resolution Partner at Gardner Leader Solicitors in Newbury looks at the Courts’ recent guidance in relation to the potential liability of a website to its visitors.

In Patchett v. Swimming Pool and Allied Trades Association Limited (SPATA) [2009] the Court of Appeal dismissed a claim by Gary and Karen Patchett that they had been misled by the website terms of SPATA, having chosen Crown Pools Limited to install a pool on the strength of the SPATA "member finder" section of the site.

The decision confirms that website owners can owe a duty of care to its visitors.  However it also serves to suggest how easily a website can sidestep that duty.  All that seems to be required is to inform visitors to seek further information before they rely on what they read and, you should be home free!

The Patchetts wanted a swimming pool for their garden and visited the website of a pool installers' trade body, SPATA. That site listed a company called Crown Pools as one of its members. The site also set out safeguards for consumers who contracted SPATA members. There was a mistake, though. Crown was only an affiliate member of SPATA and the safeguards described on the site applied to full members only. Crown became insolvent and the Patchetts sued SPATA to recover a loss of £44,000.00.

The Court of Appeal ruled that SPATA avoided liability because its 'about us' page contained a statement that urged consumers to obtain an information pack before engaging a swimming pool installer. That statement was, in effect, SPATA's disclaimer and it was held that it owed no duty of care to the Patchetts, largely as a result of that disclaimer.

The case highlights the need for website owners to review the likelihood that visitors to their site will not only be able to find, but will read their disclaimers. Mistakes do occur on websites, even if inadvertent and it is important to limit any liability for such mistakes.  In our experience, more and more litigation emanates from the on-line world and, with increasing use of this media, this is likely to rise further.

Some sites include disclaimers that in effect say, "If you rely on what you read here then you do so at your own risk.  It might not be accurate, so always seek independent advice." Alternatively a disclaimer, accessible via a link on every page - whilst hardly providing the reader with confidence, or being aesthetically pleasing - may get you off the hook when push comes to shove.

Accordingly, if website owners can mitigate their risk further, they probably should, even if that interferes with the user experience, or they could face the risk of court proceedings similar to that of the Patchetts.

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