A March 2024 decision of the UK Court of Appeal is instructive in regard to incorporating standard terms and conditions of online trading sufficiently to bring them to the attention of the prospective customer. The court made some useful observations about the digital era we are living in:

“Online shopping, which was a novelty not so many years ago, has become the norm rather than the exception. Consumers like the speed, convenience, and ease with which they can conduct transactions online, and other advantages such as being able to have goods delivered directly to their door, and not being tied to normal shop opening hours.

However, for the trader providing goods or services online, there is a big dilemma. 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 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 then quoted a leading textbook on contracts concerning the incorporation of standard terms:

“It is not necessary that the conditions contained in the standard form document should have been read by the person receiving it or that they should have been made subjectively aware of their import or effect. The rules which have been laid down by the courts regarding notice in such circumstances are three in number:

  • If the person receiving the document did not know that there was writing or printing on it, they are not bound (although the likelihood that a person will not know the existence of writing or printing is now probably very low);
  • If they knew that the writing or printing contained or referred to conditions, they are bound;
  • If the party tendering the document did what was reasonably sufficient to give the other party notice of the conditions and if the other party knew that there was writing or printing on the document but did not know it contained conditions, then the conditions will become terms of the contract between them.

Those rules can operate to the disadvantage of parties who have less bargaining power than the person whose terms and conditions are incorporated in the contract. In practice, irrespective of whether they have read them, they have no choice but to accept those terms and conditions if they wish to continue with the transaction.”

The case concerned an online gambling claimant who said she had won £1 million whereas the gambling company said, according to its terms and conditions, she had won £10 when she played the game on her laptop. When the game was played the claimant saw a coding issue regarding the £20 million prize which was generated in error. The court found that the standard terms and conditions which the claimant accepted were applicable and binding on her and she had won only £10 not £1 million.

In South African law, similar principles apply. Consumer contracts must however be looked at in relation to the protection afforded to consumers by the Consumer Protection Act, 2008.

Joan Parker-Grennan v Camelot UK Lotteries Limited [2023] EWHC 800 (KB)