OBrien v MGN Ltd 2001 EWCA Civ 1279 368
SUMMARY:Scratch cards were distributed with the defendant’s newspapers i.e. The Daily Mirror, Sunday Mirror, and The People. Players called a premium rate number if the card came up with the money to see if the sum matched a mystery bonus cash amount. On July 3, 1995 Mr. O’Brien received two 50,000 pounds checks. Since MGN had distributed so many by accident, 1472 other people did as well. MGN had only planned to offer a single 50,000 draw. Among the 1472, MGN maintained a draw. MGN cited “Rule 5”, which stated that if more prizes were claimed than there were available, a draw would be held. Rule 5, on the other hand, was not included in 3 July 1995 edition, despite being published in some newspaper. “Normal Mirror Group Rule apply”, it said. Mr. O’Brien was aware of this. The issue was whether Rule 5 was included in the scratch card agreement.The Judge directed himself in accordance with the passage in the judgment of Bingham LJ, as he then was , in Interfoto Picture Library Ltd V Stiletto Visual Programmes Ltd (1989) 1 QB 433, at p445B:“The tendency of the English authorities has, I think been to look at the nature of the transaction in question and the character of the parties to it, to consider what notice the partu alleged to be bound was given of the particular condition said to bind him, and to resolve whether in all the circumstances it is fair to hold him bound by the condition in question.”The judge came to the conclusion that the contract was signed on July 3rd. There was no guarantee that people who bought cards on June 25th would be qualified to play a phone game on July 3rd. The bid was made that day, and the complainant rejected it when he called the hotline. (In light of this, the defendant's abandonment of the claim based on the substance of the telephone game bid on July 3, which is arguably restricted to holders of cards issued in the three newspapers listed, is maybe surprising.) But it was abandoned, and we won't speculate about why.) In determining whether the Rules were incorporated into the contract, the judge stressed that he was only concerned with this specific claimant and not with any other real or hypothetical claimant. He was convinced that this claimant must have realised that the number of prizes was limited, and that the number of prizes in the highest category would be limited. In light of his previous observations, he was also convinced that the complainant must have been aware of the applicable rules and must have at least seen them. He went on to say:“I bear in mind the balance of risk and opportunity in a case of this kind. Though I have no doubt that the promotion was seen as being in the commercial interests of MGN Ltd, it clearly faced substantial financial risks if anything went wrong with the game. In an extreme case, as Mr. Carr(Counsel of MGN Ltd) was at pains to point out, it could result in the insolvent demise of the company. On the other hand, readers and participants no doubt gained amusement and satisfaction from the game at little or no expense to themselves. They also had the chance of winning a substantial prize, which would in effect be a pure windfall. Though any limitation on apparently successful claims would be a grave disappointment to anyone who might assume he had won, that seems to me to be very different from the sort of situation where standard terms are invoked in order to impose punitive financial liabilities or to avoid liability
for injuries caused by negligence. ”
He also remembered that "the minimal evidence" from Miss Amanda Platell, MGN Ltd's Marketing Director at the time, "appears to show that provisions of the kind sought to be relied on in this case are not rare or uncommon in the field of games and competitions." The law, on the other hand, "appears to limit the right to receive an award that was otherwise formulated without qualification or restriction." After weighing all of the different factors as best he could, he came to the conclusion that holding the claimant to the Rules was reasonable.