Claim based on “problem gambling” dismissed
A Claimant who described himself as “a problem gambler” has lost his claim against Star Sports, a Mayfair bookmaker, for the return of betting losses incurred whilst he was in a “betting frenzy”. Chris Gillespie represented Star Sports (“SS”).
The Claimant had argued that SS, in providing him with facilities to gamble, supplied a service to which the Consumer Rights Act 2015 applied. There was an implied term that SS would perform its services with “reasonable care and skill” pursuant to section 49(1). That much was conceded. However, it was further argued that, as it was a condition of the SS’s operating licence that it would comply with the Social Responsibility Code Provisions issued by the Gambling Commission, any failure to abide by that Code was a breach of the implied term, which entitled the Claimant to claim damages.
This was a novel legal point of some considerable importance to the gambling industry and the case attracted extensive publicity:
The Times | Daily Mail | Racing Post
The Claim failed on every ground. The judge noted that that the Claimant, notwithstanding a detailed Part 18 Request for Further Information, had refused to provide any financial records to demonstrate the extent of his winnings and losses and how they related to his general financial situation. Further, he had failed to provide any medical or psychiatric evidence of his mental state during the relevant period. His case was inconsistent and self-contradictory in a number of crucial respects, including what he had said about his problematic gambling to employees of SS.
Bizarrely, at an early stage of the proceedings, the Claimant had sought to pursue a defamation action against SS on the basis that he had lost business as a result of its employees falsely stating that he was in the premises every day losing money. This had caused potential investors to withdraw because it was being said that he was a problem gambler. Now he argued that SS should have realised he was a problem gambler because, so he claimed, he had been in the premises every day losing money.
There was also an issue, raised by the Claimant himself, as to whose money he had been gambling with.
The judge found that he was not a problem gambler at the relevant time and that, therefore, he had never said that he was to any employee of SS.
Although the claim was dismissed on the facts, in deference to the arguments that had been pursued, the judge ruled on the legal issue. She fully accepted the defence submission that s49(1) of the Consumer Rights Act did not incorporate into the individual betting contracts the provisions of the Social Responsibility Code thereby giving the Claimant a private law cause of action. To do so would be to alter the principle that, absent any assumption of responsibility, no one is under a duty to prevent another from causing themselves economic loss.
Section 24(8) of the Gambling Act 2005 expressly provides that any failure to comply with a provision of a code “shall not of itself make a person … liable to civil proceedings.” This section appears in Part 2 of the Gambling Act, which concerns the establishment of the Gambling Commission and its powers and duties. There was nothing to suggest that Parliament had intended to alter in any way the principle set out in s24(8). Breaches of the Codes were a regulatory matter.
There was also a practical problem. On the last day the Claimant attended SS he placed 55 bets. Each bet constitutes a separate betting contract. At what point would the Claimant’s cause of action arise?
In conclusion, the Court of Appeal in Ehrentreu v IG Index Ltd (Rev 1) [2018] EWCA Civ 79 had reviewed the authorities and concluded that in tort the existence of a duty of care to protect the other party from deliberately inflicting economic harm on themselves was truly exceptional. The position was even more exceptional in contract. It would require very clear express words in a contract, spelling out such a duty, before the Court could conclude that such an exceptional duty arose.
In the event the judge was wrong on any of these points, she held that the Claimant’s case on causation was unsustainable. He had continued to gamble after his last day at SS and had even begun to gamble online. In short, he would have lost his money anyway.
All cases are fact specific. However, the importance of this case lies in the restatement of the principle that in the context of a bookmaker’s relationship with a customer there exists, absent an assumption of responsibility, no tortious or contractual duty to prevent a customer from causing themselves economic loss.
Chris was instructed by Andrew Needleman and Joe Monaghan of Terrells LLP.
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