In this article, Richard Liddell KC, Samuel Cuthbert and Charlotte Baker explain the recent decision reached in Gibson v TSE Malta LP (t/a Betfair) [2025] EWCA Civ 1589 [2025] 12 WLUK 117, in which the Court of Appeal confirmed that Betfair was not in breach of its obligations as set out in the relevant Gambling Commission regulatory code, where Betfair did not know (or ought to have known) that the appellant was a problem gambler. It was further decided, obiter, that non-compliance with Gambling Commission codes would not render gambling contracts void ab initio.
This decision will be welcomed by gambling companies as affirming that non-compliance with the regulatory code will not serve to invalidate gambling contracts, while also demonstrating the inherent difficulties which face problem gamblers bringing civil proceedings against gambling providers where the relevant problem gambling was concealed at the time.
Introduction
Pursuant to section 24 of the Gambling Act 2005 (“the Act”), the Gambling Commission is required to issue codes of practice for those providing facilities for gambling. On 8 December 2025, the Court of Appeal gave judgment on an appeal in which it was contended that Betfair had breached the terms of its licence, as set out in the License Conditions and Code of Practice (the “LCCP”). This obliges operators to adopt procedures where they had concerns that a customer’s behaviour could indicate problem gambling.
The Court of Appeal dismissed the appeal and Sir Colin Birss, with whom Lord Justice Popplewell and Sir Julian Flaux agreed, affirmed the decision of HHJ Bird at first instance.
Background
Mr Lee Gibson was a wealthy property investor who lost almost £1.5 million between 2009 and 2019, gambling (typically on football matches) via a betting exchange hosted by Betfair or its predecessors. Mr Gibson brought proceedings alleging that Betfair knew, or should have known, that he was a “problem gambler” based on his betting patterns, his interactions with its anti-money laundering and responsible gambling teams, and his “VIP manager”. He claimed that Betfair, by not preventing him from incurring the losses he did, had breached its obligations to him and caused him significant financial loss.
HHJ Bird rejected all of Mr Gibson’s claims for breach of contract and negligence (and a breach of statutory duty claim was dropped). Despite finding that Mr Gibson was a problem gambler from 2015, he held that Betfair had not known, nor ought to have known, that Mr Gibson had a gambling problem at any time. HHJ Bird found that there was no breach of the LCCP and that Betfair applied appropriate policies at the time. Further, HHJ Bird found that Betfair did not owe Mr Gibson a relevant duty of care and that, even if there was a breach of any such duty, causation of loss had not been established.
HHJ Bird also dismissed the alternative claim pursuant to section 33 of the Act that if LCCP was breached, then the gambling contracts entered into through a gambling operator’s exchange were illegal and void.
LJ Males gave permission to appeal on the basis that the proposed appeal “raised issues of some general importance as to the responsibilities of gambling organisations, which merited consideration by the Court of Appeal despite the judge’s factual findings”.
On appeal, Mr Gibson challenged the judge’s conclusions on three grounds. He argued that the judge was wrong to find that Betfair neither knew nor should have known that he was a problem gambler, and that there had been no breach of the LCCP (Ground 1). He argued that the judge was wrong to find that Betfair owed him no duty of care, was not negligent, and that causation was not established (Grounds 2(a)–(c)). Finally, he contended (again) that any breach of the LCCP rendered the gambling contracts void ab initio under section 33 of the Act (Ground 3).
Court of Appeal
Betfair’s Knowledge
The Court of Appeal considered the LCCP (as of the May 2015 version) and specifically provision 3.4.1 on Social Responsibility, which provides that “[l]icensees must put into effect policies and procedures for customer interaction where they have concerns that a customer’s behaviour may indicate problem gambling” [15].
Mr Gibson’s case was premised on the basis that Betfair had, or ought to have had, knowledge that Mr Gibson was a problem gambler (and refused him service or prevented him from using the platform) [16]. Mr Gibson’s case accordingly set out various facts which it was asserted that HHJ Bird failed to take reasonable account of (either found earlier in his judgment or which he ought to have found) [23-24]. For instance, Mr Gibson was frustrated by his access to the platform being suspended for AML checks, his home was valued at much less than the level of his losses, and he placed bets on obscure football matches. The Court of Appeal re-considered the various difficulties identified by HHJ Bird as follows:
- Mr Gibson had kept his gambling problem to himself [26];
- There was extensive evidence provided by Mr Gibson to Betfair which indicated that he could afford his losses [34]. HHJ Bird had considered the interactions between Mr Gibson and Betfair over time, in particular via various AML checks which it was impossible to separate from responsible gambling interactions [30]. The fact that it was suggested that Mr Gibson could not afford his losses did not change the fact that the issue was not what Mr Gibson could afford but what the information Mr Gibson presented to Betfair showed he could afford [36]. The Court of Appeal also did not consider that the distinction drawn by Mr Gibson between the affordability of funding losses from income as opposed to funding losses from capital undermined HHJ Bird’s finding about Mr Gibson’s behaviour [37].
- Mr Gibson misled the gambling operator that he was comfortable with his gambling – “and it is very difficult to identify a problem gambler who is not being honest” [39]. While it was suggested that data about Mr Gibson’s pattern of betting were indicative of problem gambling, the finding that Mr Gibson misled Betfair was “clearly open” to HHJ Bird [40].
- The fact that Mr Gibson’s “VIP manager” had a detailed knowledge of Mr Gibson’s betting did not assist Mr Gibson [41].
As a result, the Court of Appeal considered that HHJ Bird had come to an entirely reasonable conclusion on the evidence such that there was no justification for the appeal that Betfair knew or ought to have known that Mr Gibson was a problem gambler [42]. The Court of Appeal also dismissed the assertion that Betfair’s policies and procedures did not contemplate the refusal of service (just suspension of an account) [43-47] and dismissed Ground 1 of the appeal.
Grounds 2(a)–(c) accordingly did not require determination [49-50].
Statutory Illegality
It was not necessary for the Court of Appeal to decide Ground 3 – that it is wrong to say under section 33 of the Gambling Act that gambling contracts entered into in breach of the licensing conditions are not void – but as a pure issue of law it was addressed obiter.
Section 33 of the Act provides that a person commits an offence if they provide facilities for gambling unless certain statutory defences apply, which include the provision at section 33(2) that (a) the person holds an operating licence authorising the activity and (b) the activity is carried on in accordance with the terms and conditions of the licence. Mr Gibson’s appeal contended that a breach of the LCCP would render gambling contracts void ab initio under section 33 of the Act (such that if successful in demonstrating a breach of the LCCP, it would follow that the contracts were void).
The Court of Appeal held, by reference to Okedina v Chikale [2019] EWCA Civ 1393, that the question to be answered is whether the statute intends to deprive the contract of any legal effect with the result that it is unenforceable by either party, on construction of the statute [55]. It was common ground at first instance that section 33 does not contain such an express prohibition; the issue was rather whether the Act implies that contracts can be deprived of legal effect upon a finding of breach by the gambling operator.
The Court of Appeal agreed with HHJ Bird’s view at first instance, which included the sentiment that the Act was not designed to ban gambling and that “[a] successful gambler should not be deprived of the fruits of his bet, but equally in my judgment a losing gambler should not be able to escape the consequences of his decisions” [cited at 56]. The Court of Appeal drew a comparison with Phoenix Insurance v Halvanon Insurance [1988] 1 QB 216 [1986] 10 WLUK 71, where it was found that there was a good public policy reason for insurance contracts made by unauthorised insurers not to be invalidated, while by the same token there was a good public policy reason not to enforce money lending contracts [58]. Similarly, the Court of Appeal held that “[t]here is no policy reason why successful bets should be unenforceable (by the gambler against the operator) even if the operator is in breach of the LCCP” [59].
Looking at section 33 in light of the Act as whole, the Court of Appeal held that it would be a “very odd conclusion” if section 33 had the effect Mr Gibson contended which did not sit easily with other provisions of the Act [60]. The Court of Appeal also dismissed the argument that the objective of protecting the vulnerable (if this could be said to be the primary priority of the Act) would not be sufficient to ground the implied prohibition Mr Gibson sought [61]. In fact, allowing a gambler to avoid his debts (irrespective of any vulnerability or the bets in question) would contradict the policy of the Act “which, so it seems to me, is that in general gambling debts are enforceable” [62].
Ground 3 was accordingly dismissed.
Comment
The Court of Appeal’s judgment, like HHJ Bird’s at first instance, considered the Act’s role as “watershed” in regulation designed to balance the economic benefits of safe gambling with protecting the vulnerable from the dangers of gambling [9]. However, the Court of Appeal decided that facilitating safe gambling will not allow gambling contracts to be rendered void even where there is a breach of its relevant responsibilities by a gambling operator. Instead, the purpose of the Act is to enable safe gambling which requires gambling contracts to have effect. While the Court of Appeal’s decision on this statutory illegality point was made obiter, it is apparent that prospective claimants ought to be deterred from bringing proceedings on the basis that a breach of the LCCP (or an alleged breach of the LCCP) will result in the voidance of the gambling contract itself.
Further, the Court of Appeal’s affirmation that Betfair did not have (or ought to have) knowledge of Mr Gibson’s problem gambling demonstrates the difficulties of pursuing a claim against a gambling provider where information has been concealed by the gambler, as well as where the gambling provider has been actively misled. In this case, it is clear that despite the extent of the losses suffered – and the fact that it was found at first instance that Mr Gibson was a problem gambler from 2015 – there was not sufficient evidence that Betfair had the requisite knowledge so as to breach its licensing conditions. Perhaps this is not so surprising. As the Court of Appeal affirmed, “it is very difficult to identify a problem gambler who is not being honest” [39]. This case may simply reflect the difficulty with identifying and protecting problem gamblers who do not reveal their problem gambling or who take active steps to hide it, and therefore the limits to the obligations of gambling companies to identify these individuals.
However, subsequent changes to the LCCP since April 2019 may now require gambling companies to meet higher standards than those considered in this case. As HHJ Bird set out at first instance, “the relevant licence provisions in place until 2019 were relatively undemanding” [133] but the LCCP has been through more recent developments. This includes updates in October 2019 and following COVID (with further updates in September 2022 and October 2023). It remains to be seen how the conduct of gambling companies may be tested against updated requirements in respect of customer interaction.
The Court of Appeal also did not need in this case to examine the “wider ambit of the definition of problem gambling” but acknowledged that the concept of a “problem gambler” and “problem gambling” could in a different case raise questions about the “criteria which have to be satisfied and how they relate to clinical definitions of gambling disorders, including for exampling the DSM criteria” [18].
It is also notable that the Court of Appeal refrained from deciding Grounds 2(a) to 2(c), leaving these to be dealt with in a factual context in which the issues arose [50]. This meant that the Court of Appeal did not consider HHJ Bird’s finding that that there was no requisite duty of care, that Betfair was not negligent, and that Mr Gibson’s case would fail on causation (as Mr Gibson “would have gambled elsewhere and to the same extent” [4]). It will be interesting to see these issues become the subject of appellate consideration in other proceedings but for the moment they demonstrate the serious difficulties inherent in pursuing negligence claims against gambling providers.
As HHJ Bird remarked at first instance, such a claim in negligence would be “doubly exceptional” (citing Professor Janet Sullivan) – by asserting a duty to prevent pure economic loss brought about by a claimant’s own actions – and, citing Briggs J in Calvert v William Hill [2008] EWHC 454 (Ch), the imposition of duty in similar circumstances was a “journey to the outermost reaches of the tort of negligence, to the realm of the truly exceptional” [6].
Prospective claimants who are considering pursuing their losses against gambling organisations will need to consider carefully all of the above-referenced decisions and not just roll the dice and hope that the LCCP or negligence comes to their rescue.
© Richard Liddell KC, Samuel Cuthbert and Charlotte Baker, 4 New Square Chambers, January 2026
Disclaimer: This article is not to be relied on as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
