Standard limitation clauses may not protect professionals from liability warns James Burgoyne, Director, Brunel Professional Risks, after the High Court ruled that a man who blamed a five-year-old for large losses on his online betting account was not bound by terms of the bookmaker’s website.
The High Court heard that Colin Cochrane, who left his computer at his girlfriend’s house, returned to find his online betting account £50k in the red after his girlfriend’s five year old son had made trades in oil, gold and silver while ‘playing games’.
Spreadex, the online bookmaker claimed that Mr Cochrane was “deemed to have authorised all trading under [his] account number,” under a clause in its online contact. The judge disagreed, ruling that the online terms did not constitute a contract, would in any case have failed under the unfair terms in consumer contracts regulations, and had not been adequately brought to Mr Cochrane’s attention. Reports on the case have been published by lawyers Pinsent Masons and Field Fisher Waterhouse.
“Many professionals rely on standard limitation clauses to protect themselves against professional indemnity claims,” said James Burgoyne. “This case shows just how careful they need to be in drafting these clauses, if they are to be relied on in court.” A useful paper by Barrister Dov Ohrenstein of Radcliffe Chambers considers exclusion and limitation of liability clauses and gives guidance as to how they can be drafted effectively.