Were those terms incorporated? is a common question, whether you are a trader or a customer. We now have a Court of Appeal authority[1] on when and how terms and conditions will be incorporated into a contract.
The background
The case itself concerned an on-line game offered by Camelot, which Joan Parker-Grennan (the Claimant) registered for and played. The website informed the Claimant that she had won a £10 prize, but the screen then showed a second prize- this time of £1million. Camelot refused to pay the larger prize, on the basis that their terms had been incorporated and these provided that a player in a game could only win one prize and the first prize notified was £10. The screen showing a second prize of £1m was an error due to a software glitch.
The case
The case report begins with a description of the dilemma traders face: ”How do they bring their standard terms and conditions of trading sufficiently to the attention of their prospective customer to incorporate them in the contract of sale or contract for services, without testing their patience so much that they decide to take their custom elsewhere and without impeding the rapid turnover which may be the key to the profitability of their trade? Is it ever going to be possible to overcome the fact of life that most people (dare I say it, even lawyers) will not bother to read the “small print” before clicking on the box or button which states “I [have read and] accept the terms and conditions.” “
The court began by stating that it is not necessary that the standard terms and conditions should have been read by the person receiving them. It is sufficient if the customer knew of the conditions and the trader did what was reasonably sufficient to give the customer notice of the conditions. A slight gloss on this is that the trader must take steps to bring any onerous or unusual clauses specifically to the attention of the customer.
In this case, the court stated that Camelot’s terms were not unduly complex or controversial and were written in plain and comprehensible English. They provided that if a player ticked a box, he or she confirmed that they had read, accepted and agreed to be bound by Camelot’s terms. (The Claimant had done this). The terms for the specific game contained a statement that, by playing the game a player was bound by its terms and conditions.
Camelot went further, so that whenever the terms were updated, the acceptance process was repeated.
On the issue of incorporation, the court recognised that a trader cannot force a customer to read the terms and conditions if they cannot be troubled to do so. The trader only needs to take reasonable steps to bring the terms and conditions to their attention, which necessarily involves giving them a sufficient opportunity to read them. As in this case, a sufficient opportunity could be providing a hyperlink to the terms or a drop down menu, which the customer can click (or not) as thy choose.
The court recognised that the “click-wrap” process described above will not be sufficient to incorporate standard terms in every on-line contract. The examples given were where a website only remained open for a particular offer for a very limited period of time, without allowing the customer sufficient time to read and interpret the standard terms or where the customer is required to click a long series of links to find the relevant terms, so that it cannot be truly said that they are readily or easily accessible.
The court’s decision
The court concluded that Camelot had done enough to incorporate their terms into their contract with the Claimant and that, by adopting the click wrap procedure, the Claimant was bound by those terms.
[1] Joan Parker-Grennan -v- Camelot UK Lotteries Ltd CA 2023-00791