(1,239 words | Estimated reading time: 7 minutes)
In 2020, I showed that problem gamblers may have a valid professional negligence claim against online gambling casinos, arising from their exploitation (by way of action or inaction) of the gambler’s addiction in circumstances where they should have pointed them in the direction of help. To succeed in making such a claim, they would first have to overturn the bad decision reached in Calvert v William Hill Credit [2008] EWHC 454 (Ch). Now, in 2024, it is important to talk about the emerging question of limitation periods in respect of any such claims.
If you have been the victim of negligence, Section 14A(4) of the Limitation Act 1980 requires that you bring a lawsuit within one of two periods – either:
(a) Within 6 years from the fate on which the cause of action accrued; or
(b) Three years from the starting date as defined by subsection (5).
Problem gamblers seeking to rely on Section14 (A)(4)(a) will want to point to the last instance that they gambled with an online casino that was engaged in an ongoing failure to satisfy their regulatory obligations by pointing the gambler in the direction of help.
The problem is that the Gambling Commission has been issuing industry-wide fines against online gambling casinos – in response to broadly the same conduct that gambling addicts might sue them for – for almost six and a half years. Some online casinos continue to engage in wrongful conduct to this day, such as Gamesys who was first fined £1.2M in 2019, only to be fined a further £6M in early 2024. Or William Hill, who paid £6.2M in 2018 and £19.2M in 2023. In respect of such recent wrongdoing, there need be no discussion of limitation periods.
However, in respect of casinos that did clean successfully clean up their act in the early days of the Gambling Commission’s crusade, there will be prospective claimants who will not be able to point to causes of action that have happened in the last six years, precluding them from suing under Section 14 A(4)(a). So what of Section 14(A)(4)(b)? What is ‘the starting date as defined by [Section 14(A)] subsection (5)’?
Subsection (5) states that ‘the starting date for reckoning the period of limitation…is the earliest date on which the plaintiff…had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action’.
Problem gamblers will invariably have had a right to bring a claim. So, how does one determine if they had the requisite knowledge required to issue their claim? Subsection (6) clarifies that the plaintiff must have ‘knowledge both-
(a) of the material facts about the damage in respect of which damages are claimed; and;
(b) of the other facts relevant to the current action mentioned in subsection (8).’
Problem gamblers will invariably know about the material facts in respect of which damages are claimed. They were there, beside themselves, when they betted their money away. So, what of subsection (8)? It requires:
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence
Two additional requirements under Subsection (8)(b) and (8)(c) will invariably be satisfied in this context. Subsection 8(a) is subject to the caveat in Subsection (9) that ‘knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of [establishing knowledge] for the purposes of subsection (5)’.
So, we are not concerned with the gamblers’ knowledge of the legality or otherwise of the online casino’s actions. Instead, we must ask whether they could reasonably conclude that the actions or inactions of the online casino led to the problem gamblers accrual of loss. Subsection (10) states that this includes ‘knowledge which [the plaintiff] might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek’
One might argue that because the problem gambler was indeed beside himself when the online casino took his funds, we should reasonably expect him to attribute at least partial fault upon the online gambling company for any damages arising therefrom. The gambler cannot lose money unless the casino takes it.
But one might equally argue that a problem gambler might reasonably have determined that they are ultimately the sole arbiter of their decisions, and that they only have themselves to blame for their actions.
In the leading authority on Section 14A – Haward v Fawcetts [2006] UKHL 9 – Lord Nicholls clarifies at Paragraph 9 that knowledge:
‘means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ… In other words, the claimant must know enough for it to be reasonable to begin to investigate further.’
Lord Mance further states at Paragraph 122 that any such investigations should show attributability – that action or inaction by a defendant is ‘capable of being attributed to’ the online casino. Certainly, upon suffering loss at the hands of online casinos, we can sensibly determine it “reasonable [for the problem gambler] to begin to investigate further”.
But, referring back to the wording of the Section 14A of the Limitation Act, what facts would a problem gambler ‘ascertain’ upon the solicitation of ‘appropriate expert advice’? In this factual matrix between problem gambler and online casino, attribution and a finding of negligence are inextricably linked. Per the decision of William v Calvert Hill, there is no causal attribution, and there is therefore no negligence as a matter of law.
And so, I have borne witness to written opinions provided by more unimaginative lawyers to problem gamblers, which conclude by saying that no viable claim can be made. They observe that in William v Calvert Hill and subsequent ancillary case-law, problem gamblers are solely accountable for their own actions.
William v Calvert Hill must surely be overturned on appeal. The judgement is out of date, going against now common understandings shared by stakeholders at large in the lives of problem gamblers, from medical professionals to financial lenders and indeed the regulators of the gambling industry. But, if a legal expert might reasonably fail to identify this truth and therefore see a possible route via which the casino’s action/inaction can be attributed to the gambler’s losses, then we cannot expect the gambler to.
To conclude otherwise would be to suggest that the law is so obviously wrong as to be so unreasonable that the prospective plaintiff should have ignored it, and proceeded to sue regardless. I shall spare you a more lengthy discussion on the jurisprudential failures of a system that would endorse such a paradigm, and simply state the obvious conclusion arising therefrom – this would be unjust.
One should therefore conclude in any event, but especially if unfavourable legal counsel has been sought at some point, that the applicable time period for prospective plaintiff problem gamblers is the three-year period set out in Section 14A(4)(b), and that this period should not start to run until after any unfavourable law is overturned. Subject of course to the long-stop of 15 years from the date of the last instance giving rise to a cause of action, per Section 14B.
Some online casinos will think that they’re almost in the clear. But I’m just warming up. It’s time to go for the jugular.