Hillside (New Media) Ltd v Baasland & Ors [2010] EWHC 3336 (Comm)

Case No 2009 FOLIO 270[2010] EWHC 3336 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2010
Before
MR JUSTICE ANDREW SMITH
Between
Hillside (New Media) LimitedClaimants(1) Bjarte BaaslandDefendants(2) BET365 International N.V.Defendant(3) Hillside (Gibraltar) LimitedDefendant
Bajul Shah (instructed by S.J. Berwin) for ClaimantsHearing Hearing dates: 10 December 2010
JudgmentMR JUSTICE ANDREW SMITH :
[1]The claimants in these proceedings, Hillside (New Media) Limited, (“Hillside”), an English company and subsidiary of bet365 Group Limited, apply for summary judgment upon their claim for a negative declaration against the first defendant, Mr Bjarte Baasland, a Norwegian. The wording of the declaration that they now seek, as formulated after exchanges at the hearing, is in these terms:
“The Claimant is not liable to the First Defendant or his assignees or any person claiming through or under him in tort or otherwise, for any loss or damage that the First Defendant may have suffered by reason of or arising out of his activities as a customer of the Claimant between January 2005 and August 2008 and/or placing bets or wagers with the Claimant and/or placing any bets or wagers on the website www.bet365.com”
[2]Hillside and other companies in the group, including the second defendants, Bet 365 International NV (“Bet 365 NV”), a company incorporated in the Netherlands Antilles, and the third defendants, Hillside (Gibraltar) Limited (“Hillside Gibraltar”), a Gibraltar company, provide facilities for online gambling through a website to which I refer as the “bet 365 website”. The website is owned by Hillside and operated by them through servers in England. Hillside’s premises and staff operations are also in England. The website is licensed for use by Bet 365 NV and Hillside Gibraltar. The staff operations and servers of Bet 365 NV are, or at least were at the relevant time, in the Netherland Antilles, and those of Hillside Gibraltar are in Gibraltar.[3]Three kinds of bets can be placed through the bet 365 website:(i) bets on sporting events (“sports bets”);(ii) bets on games of chance, such as poker, blackjack and baccarat (“casino bets”); and(iii) bets on fixed-odds games of chance, such as Keno, Hi-Lo and “Heads or Tails” (“games bets”).[4]Before 1 September 2007 sports bets and games bets that were placed through the bet 365 website were processed by Hillside, and those by way of casino gambling were processed by Bet 365 NV. When on 1 September 2007 the Gambling Act 2005 came into force, the Bet 365 group re-organised the business. The business of Bet 365 NV was transferred to Hillside Gibraltar under an asset purchase agreement dated 31 August 2007. Thereafter casino gambling and games bets have been processed by Hillside Gibraltar. Hillside continues to process sports bets.[5]Mr Baasland placed bets through the bet 365 website between 2005 and 2008. He had two accounts. He opened an account for gambling in Norwegian kroners on 20 January 2005 and an account for gambling in US dollars on 26 August 2005. He placed over 5,000 sports bets, and his net loss from them was nearly 15 million kroners and nearly $220,000, in total the equivalent of about £1.5 million. He placed some 220,000 bets upon casino gambling, and his net loss from them was some 11.8 million kroners and nearly $350,000, in total the equivalent of over £1.4 million. Initially he bet through the website from Norway From about August 2005 most of his bets were placed from Germany, although some were placed from Norway and the Czech Republic and, on one occasion, from Denmark.[6]In a series of emails between 22 and 26 August 2008 to Hillside, Mr Baasland stated that he had gambled away money that friends and family had lent to his parents, apparently for investment, and he needed to repay “30 million”. He pressed Hillside and another on-line gambling business called Centrebet, with whom also apparently he had gambled, to “take responsibility” and contribute to his losses so as to avoid unfavourable publicity. He referred to his “gambling problems”. Hillside and the Bet 365 group paid nothing to Mr Baasland. On 7 November 2008 his Norwegian lawyers, Advokatfirmaet Steenstrup Stordrange DA, (“Steenstrup Stordrange”), wrote to “Bet365” a letter headed “Notice of forthcoming litigation”, and threatened to institute legal proceedings unless their demands were met within 14 days. They asserted a claim in respect of Mr Baasland’s “financial loss”, and contended that it was justiciable in the Norwegian courts and governed by Norwegian law. They argued, in brief summary, that there was liability(i) in negligence, on the basis that there “could have [been] effectuated and implemented general control measures, inspections, warnings or probes to locate this type of player”, and(ii) on the basis of “non-statutory rules regarding strict liability” because the damage to Mr Baasland was “constant, typical and extraordinary”. Hillside rejected the claim.[7]Mr Baasland did not, as far as appears from the material before me, bring proceedings against Hillside in Norway or elsewhere. On 2 March 2009 Hillside issued these proceedings and they were served on Mr Baasland on 30 April 2009 under the Hague Convention. His acknowledgment of service dated 18 May 2009 gave as an address for service the offices of Messrs Andrew Jackson, English solicitors, and indicated his intention to dispute the jurisdiction of this court. He did dispute it but not by any proper application notice, but on 25 May 2009 his Norwegian lawyers sent to the court submissions about the court’s jurisdiction, together with supporting documents. The court directed an oral hearing, but Mr Baasland took no steps to arrange one. On 24 February 2010, the court dismissed Mr Baasland’s challenge on jurisdiction. Hillside served particulars of claim on Mr Baasland on 14 May 2010, but Mr Baasland has not served a defence. Hillside applied for summary judgment on 10 November 2010. Mr Baasland did not serve evidence in response to it. Shortly before the hearing before me, Messrs Andrew Jackson applied for and obtained an order that they be removed from the record. Mr Baasland did not appear and was not represented at the hearing before me.[8]I first describe the process whereby gamblers, such as Mr Baasland, can obtain access to the facilities on the bet 365 website and use them to place bets. They must first apply successfully to open an account. The procedure for doing so is described in a statement dated 10 November 2010 made by Mr John Coates, Hillside’s Chief Executive Officer.[9]Mr Baasland opened his accounts by applying for them online. There are versions of the website in different languages, including English and Norwegian. It is not in evidence which version was used by Mr Baasland when he opened his two accounts.[10]The website requires applicants to provide certain details about themselves, including an address. It appears likely that Mr Baasland provided an address in Norway. The applicant is also obliged to tick a box stating “I accept bet 365’s terms, conditions, rules and privacy statement” (to which I shall refer as the “Rules”). When he does so, he can click on a hyperlink to display the Rules, and the Rules are also available through the website’s “help” facility.[11]The current version of the Rules include the following provision:
“All sport wagers made with bet 365 are considered to be placed and received in the UK and all Conditions shall be governed by the laws of England and you irrevocably submit to the exclusive jurisdiction of the courts of England. All gaming with bet 365 is considered to be placed and received in Gibraltar and all Conditions are governed by the laws of Gibraltar and you irrevocably submit to the exclusive jurisdiction of the courts of Gibraltar.”
The expression “gaming” covers casino and games bets.[12]As I have said, when Mr Baasland opened his accounts in 2005, casino bets were processed by Bet 365 NV in the Netherlands Antilles, and Hillside Gibraltar were not yet handling any bets. The Rules then included a provision which was broadly similar to that which I have set out, but which stated that the laws of the Netherlands Antilles governed casino gambling and provided that the customer submitted to the exclusive jurisdiction of the courts of the Netherlands Antilles in relation to it. The precise wording of the earlier provision is not in evidence. Mr Coates explained that Hillside have been unable to find it.[13]The Rules also state, and, as I infer, stated when Mr Baasland became a customer, that i) “By registering the customer is deemed to have accepted and understood all rules, terms and conditions displayed on the website by bet 365”. ii) Bets are accepted only online or by telephone. iii) Any bet may be declined in part or whole.[14]When customers are registered, they are given a telephone number in the United Kingdom that they can call for assistance.[15]A customer whose application has been accepted can place bets only after money has been deposited through the website into a “wallet” for his account from which stakes are paid. The customer’s “wallet” has separate sections, including, for example, a “sports bets” section holding funds for placing sports bets with Hillside and a casino bets section for casino gambling. Money deposited by a customer in the wallet may be used for bets appropriate to the section of the wallet to which it is allocated, or may be transferred by him to another section of the wallet, or may simply be withdrawn by him.[16]The funds so held are deposited in accounts at a branch of the Royal Bank of Scotland (“RBS”) in Birmingham. As I understand it, funds held in the sports bets sections of the wallets are held in an account in Hillside’s name and funds in the casino bets and games bets sections are held in an account in the name of Hillside Gibraltar. I infer that before 1 September 2007 funds were similarly held in accounts in the names of Hillside and Bet 365 NV. When money is transferred by a customer within his wallet from one section to another, the transfers are processed in England.[17]When a customer places a sports bet, it is processed in England. Records of customers’ wins and losses on sports bets and of the funds in the sports bets sections of their wallets are held on servers in England. Casino bets and games bets are processed in Hillside Gibraltar’s servers in Gibraltar, and the corresponding records are held on servers in Gibraltar. Before 1 September 2007 games bets, as well as sports bets, were processed in England and the relevant records were held on servers in England; and casino bets were processed and the records were held in the Netherlands Antilles.[18]Thus, an applicant such as Mr Baasland makes an application to be accepted as a member online to a website that is owned and operated by Hillside. If the application is successful, the customer obtains facilities to place bets of different kinds with Hillside or an associated company. This is not, however, apparent to the applicant: the website refers only to “bet 365” and does not identify the individual companies that operate different parts of the business. When a customer transfers money from one section of the wallet to another, he is not aware that the funds are being transferred from an account in the name of one company to an account in the name of another. There is no evidence that, when the business of the bet365 group were re-arranged in 2007, this was drawn to the attention of customers with existing accounts, or that they were made aware that their casino gambling and games bets were being processed by a different company from previously. Nor is there evidence that it was drawn to their attention that the Rules were changed.[19]I should mention that Hillside and other companies in the bet365 group have various procedures through which a customer can protect himself from gambling excessively. For example, he can place a limit upon the amount of funds that he can deposit in his wallet, or he can elect to “self-exclude” (that is to say, preclude himself from operating his account) for a specified period. It is not necessary for present purposes to explain these procedures in any detail. I am not in a position to evaluate them or their efficacy and do not attempt to do so.[20]Mr Bajul Shah, who represented Hillside, submitted that(i) the question whether they are liable to Mr Baasland is governed by English law;(ii) under English law Mr Baasland has no claim against them for his financial losses (or any other damage); and(iii) the court should make a declaration by way of summary judgment.[21]The first submission raises issues of private international law of some complexity. It requires consideration of whether English law would govern(i) any claim that Mr Baasland might have on a contractual basis, such as an implied term in a contractual arrangement with Hillside, and(ii) any non-contractual claim that he might have. It is important to understand the significance of the submission to Hillside’s argument. There is no evidence that any law is materially different from English law other than the assertions made in the correspondence by Steenstrup Stordrange that Mr Baasland would have a claim under Norwegian law. It is to be presumed, therefore, that the law of any other country is the same as English law. All that Hillside need to establish is that Norwegian law would not govern any claim that Mr Baasland might have.[22]Steenstrup Stordrange’s letter of 7 November 2008 appears to assert a tortious and non-contractual claim, and I consider first whether such a claim would be governed by English law. At the time of Hillside’s first dealings with Mr Baasland, the question which law governed any issue relating to tort was to be determined in accordance with the rules stated in Private International Law (Miscellaneous Provisions) Act 1995 (the “1995 Act”). The question is now determined in accordance with Regulation (EC) no 864/2007, the Rome II Regulation.[23]There is some uncertainly about the interplay between the two regimes and about the date from which the Rome II Regulation applies. Article 31 of the Regulation, which is headed “Application in time”, provides that “This Regulation shall apply to events giving rise to damage which occur after its entry into force”. No date is specified for when the Regulation entered into force and in these circumstances, under article 254(1) of the EC Treaty, it came into force on the twentieth day following publication in the Official Gazette, that is to say on 19 August 2007. However, article 32, which is headed “Date of application” provides that “This Regulation shall apply from 11 January 2009 …”.[24]Dicey, Morris & Collins, in the supplement at S35-168, while describing as “highly unsatisfactory” the lack of clarity created by these articles, suggest that their effect is that events giving rise to damage after 19 August 2007 are subject to the Regulation if the law applicable to the obligation is determined on or after 19 January 2009. The temporal scope of the Regulation was considered by Tomlinson J in Bacon v Nacional Suiza Cia Seguros Y Reseguros SA, [2010] EWHC 2017 (QB), who agreed with Dicey, Morris & Collins. However, in Homawoo v GMF Assurance SA, [2010] EWHC 1941 (QB), Slade J, while stating that she inclined to the view that the date of 11 January 2009 did not refer to the date on which proceedings were brought, directed a reference to interpret articles 31 and 32 to the European Court of Justice.[25]Although I have been much assisted by the submissions of Mr Shah, I have not heard competing arguments about this difficult question. I also consider, as I shall explain, that in this case the application of the rules in the 1995 Act and the application of the regime in the Rome II Regulation both lead to the conclusion that any non-contractual claim is governed by English law, and at the least that it is not governed by Norwegian law. I therefore decline to express even a preliminary view about the temporal scope of the Regulation.[26]First, the position under the Rome II Regulation: article 4 is headed “General Rule”, and, so far as it is relevant, it provides as follows: “1 … the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the the damage occurs irrespective of the country in which the event giving rise to the damage occurred and the country or countries in which the indirect consequences of that event occur. 2 … 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraph 1 … , the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely related with the tort/delict in question”.[27]This article therefore raises two questions: i) In which country did the “damage” occur? and ii) Is the tort manifestly more closely connected with a country other than that in which the damage occurred?[28]The damage that Mr Baasland asserted through his Norwegian lawyers was financial loss suffered through his unsuccessful gambling. Some assistance about where that loss occurred for the purposes of article 4 is found in cases which have been decided about the rules as to jurisdiction in the Brussels I Regulation, Council Regulation 44/2001 dated 22 December 2000, and under its predecessor, the Brussels Convention. Recital 7 to the Rome II Regulation states:
“The substantive scope and provisions of this Regulation should be consistent with [the Brussels I Regulation] …”
. It is well established that article 5(3) of the Brussels I Regulation allows the claimant to bring proceedings in the country either where the damage or where the event giving rise to it occurred: see Handelskwekerij GJ Bier BV v Mines de Potasse d’Alsace SA (Case 21/76), [1976] ECR 1735 (ECJ) at paras 19 and 25. However, this does not allow the claimant to bring proceedings in any country in which he simply suffered adverse consequences or financial loss. It is clear from Dumez France v Hessische Landesbank (Helaba) (Case C 220/88), [1990] ECR 1-49 (ECJ) and Marinari v Lloyds Bank, [1995] ECR 1-2719 (ECJ) that he may do so only in the country where the event entailing the tort “directly produced its harmful effects upon the person who is the immediate victim of that event”: see the Dumex France case at para 20. Article 4(1) of Rome II explicitly states that it does not matter where indirect consequences of the harmful event occur.[29]The question where Mr Baasland suffered immediate financial loss of this kind requires further consideration of his arrangements for placing bets. I shall first suppose that they were governed by English law as it is after the Gambling Act 2005 came into force and after the repeal by that Act of section 18 of the Gaming Act 1845, which provided as follows: “All contracts or agreements … by way of gaming or wagering shall be null or void; and … no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager …”.[30]On this assumption, it seems to me that the arrangements took effect as follows. When Mr Baasland first transferred funds to his “wallet”, he became the creditor of a debt in respect of the funds so deposited. As funds were added to the wallet by way of further transfers or winnings from his gambling, the value of the chose in action representing the debt increased, and, because bets were placed or funds withdrawn, the value was reduced. There might be room for debate about the legal analysis of how the debt was created. There are perhaps three possibilities: i) That there was a single contract whereby the funds were deposited in the wallet and thereafter Mr Baasland placed bets, and that under that single contract Mr Baasland had the right to require that the funds in the wallet be used in accordance with the terms on which they were deposited: that is to say, that, unless and until they were used for betting, Mr Baasland might have them repaid at any time. ii) That there was a contract about the deposit of funds which was separate from any wagering contract, and under it the terms on which the funds were deposited were to similar effect, as far as is material, to those which I have described in (i). iii) Thirdly, that the money was transferred to the wallet by way of a gratuitous deposit for which there was no valuable consideration. The question is similar to that considered by the House of Lords in Lipkin Gorman v Karpnale Ltd, [1991] 2 AC 548, in which a gambler in a casino bought chips which he could use to gamble or to buy refreshments or which he could redeem for cash. Lord Templeman considered (at p.567B) that the “chips transaction was part of a single contract by virtue of which” the gambler placed bets. Lord Goff considered it artificial to find consideration for the exchange of money for chips, and said (at p.576G, referring to an analogous example) that in such situations “in substance and reality, there is simply a gratuitous deposit”.[31]Whatever the analysis, what matters for present purposes is that the deposit created a debt owed to Mr Baasland, and Mr Baasland suffered no loss simply as a result of transferring funds to the wallet. He suffered loss only when he was allowed to use those funds to place bets. At that point the loss that he suffered was that the value of the chose in action represented by the funds in the wallet was reduced, if not exhausted. This, as it seems to me, was the immediate loss that Mr Baasland suffered as a result of being allowed facilities to gamble and, as it is alleged, allowed to use the facilities without appropriate warnings, safeguards and protections.[32]This analysis of the position under English law after the repeal of section 18 of the 1845 Act leads to these questions: i) Where, as a matter of English law, was the situs of the chose in action when it was reduced in value or exhausted by bets placed by Mr Baasland? ii) Were the arrangements whereby Mr Baasland placed bets governed by English law or by Norwegian law or by some other law? iii) Was the position under English law different before section 18 of the 1845 Act was repealed?[33]The general rule stated in Dicey, Morris & Collins in The Conflict of Laws, 14th Ed, Vol 2, Rule 120 is that “Choses in action are generally situate in the country where they are properly recoverable and enforceable”. Although at common law this principle led to the general rule that (with some exceptions that are irrelevant for present purposes) debts are situate where the debtor resides (see Dicey, Morris & Collins, loc cit, at para 22-026), its application in a case such as this, where the debtor is a corporation and the case is covered by the Lugano Convention, depends, as I see it, upon the debtor’s domicil. That is the primary ground on which a court takes jurisdiction under article 2 of the Lugano Convention. The domicil of a corporation is determined in accordance with section 42 of the Civil Jurisdiction and Judgments Act, 1982. It depends upon where it has its “seat”, and this in turn depends upon where it was incorporated and has its registered or other official address or where its central management and control is exercised.[34]Hillside is domiciled in England. It is incorporated in England, has its central management and control in England, and has its registered office in England. Bet 365 NV and Hillside Gibraltar were not domiciled in England.[35]As I have explained, the internal arrangements of the bet 365 group were that some bets were processed by and accepted by Hillside, and others were processed and accepted by another company in the group, initially Bet 365 NV and later Hillside Gibraltar. Money placed in some sections of the wallet was held in an account in the name of Hillside and money placed in other sections was held in an account in the name of Bet 365 NV or Hillside Gibraltar. However, these arrangements were not know to Mr Baasland when he opened his account, deposited funds and placed bets online. He dealt with the bet 365 website, without the counterparty with which he was dealing being identified to him. The inference, as it seems to me, is that he intended to deal with whatever (natural or legal) person operated the website, and that person was Hillside. Hillside, for their part, dealt with Mr Baasland in two capacities,(i) as principal in respect of sports bets and, before 1 September 2007, games bets, and when receiving and dealing with funds to be held in the corresponding sections of the wallet, and(ii) as agents for an undisclosed principal (or undisclosed principals) in respect of other bets and other funds. In either case, Hillside are liable for the debt represented by the funds held in the wallet for Mr Baasland. That chose in action was situate in England[36]However, if this analysis is correct, since 1 September 2007 Hillside Gibraltar, as an undisclosed principal of Hillside, would also have been liable to Mr Baasland in debt in respect of the funds held in the games bets and casino bets sections of the wallet, and that debt would have been situate in Gibraltar. Similarly, Bet 365 NV would also have been liable for a debt in respect of the funds held in the wallet before 1 September 2007 in relation to casino bets, and that debt would have been situate in the Netherlands Antilles.[37]It is not clear how article 4 of the Rome II Regulation applies where a claimant has suffered financial loss in more than one country. The Explanatory Memorandum that accompanied the Commission’s original proposal suggests that in such cases “the laws of all countries concerned will have to be applied on a distributive basis, applying what is known as “Mosaikbetrachtung” in German law”. I do not need to decide whether the proper approach is to attempt some such fragmentation of the law governing an obligation, or whether the court should decide in which country the damage predominantly occurred (which in this case, since Hillside would have been liable for all funds in the wallet, I would consider to be England). What matters for present purposes is only that this analysis means that there is no basis for an argument that any claim in tort or other non-contractual claim is governed wholly or partly by Norwegian law.[38]I come to the question which law governs the arrangements whereby Mr Baasland placed bets. Under article 4 of the Rome Convention, subject to any express choice of law made by the parties, a contract is generally governed by the law of the country with which it is most closely connected. The parties may select a law applicable to the whole of their contract or only to a part of it.[39]In this case, the parties did not choose a law to govern the whole of their contract. Assuming that the Rules were incorporated into their contract, they chose that different laws should govern the “Conditions” depending upon the type of bet being considered. The scope of this provision is not clear because the evidence does not explain what the “Conditions” were or what they provided. However, on any view(i) the parties did not choose a law that governed their overall relationship or matters that were not covered by the Conditions; and(ii) they did not elect that any part of the relationship should be governed by the law of Norway.[40]I do not consider that, if the general rule in article 4 of the Convention is applied, it would lead to the parties’ relationship being governed by the law of Norway. Article 4(2) provides that prima facie it is to be “presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or incorporate, its central administration”. Dicey, Morris & Collins (loc cit) at para 33-54 submit that, in the case of a wagering contract, the party that is to effect performance that is characteristic of it is the party who offers the facility for placing wagers. I agree with that submission. Further, I would conclude in this case that, since the facilities were offered through Hillside’s website, Hillside were the party whose performance is characteristic of the contract, notwithstanding that, as I see it, Hillside received only some bets as a principal contracting party and received others as an agent for an undisclosed principal. I therefore consider that the general rule in article 4 would mean that the law of England governs the overall contract. Certainly I do not think that there is any argument that under the general rule the contract is governed either wholly or in part by the law of Norway.[41]There are two circumstances in which the general rule in article 4 does not apply. First, article 4(5) provides that the general rule does not apply “if it appears from the circumstances as a whole that the contract is more closely connected with another country”. I do not consider that this provides any possible argument that Mr Baasland’s contractual arrangements were governed by the law of Norway.[42]Secondly, the general rule might be displaced if article 5, which deals with “Certain consumer contracts” applies. It seems likely that Mr Baasland was a consumer within the meaning of the article. If article 5 does apply, then Mr Baasland’s contract was governed by the law of the country in which he has his habitual residence, which I would suppose to be Norway, provided(i) one of the conditions in article 5(2) is satisfied and(ii) neither of the conditions in article 5(4) applies.[43]There is no evidence that any of the conditions in article (2) is satisfied in this case. The only condition that I need mention is this:
“if in [the country of the consumer’s habitual residence] the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract”
. There is no evidence that there was any such invitation addressed to Mr Baasland, and, while the precise scope of the term “advertising” is not clear, I do not consider that it covers any circumstances in which goods or facilities can be found on the internet, through a search engine or in some similar way. The Guiliano-Lagarde Report indicates that there must be something more recognisable as advertising directed to publication in the country of the consumer’s habitual residence. There is no evidence that the conclusion of any contract entered into by Mr Baasland was preceded by advertising. I therefore do not need to consider article 5(4).[44]The remaining question, as far as the application of the Rome II Regulation is concerned, is whether the position was different when section 18 of the Gaming Act 1845 was in force. I consider this briefly for the sake of completeness, although at most the regime of the Rome II Regulation applied only from 19 August 2007, shortly before section 18 was repealed on 1 September 2007.[45]The effect of section 18 of the Gaming Act was that any contract between Mr Baasland and Hillside was null and void, and Mr Baasland could not under the law of England bring proceedings to recover the money deposited in his wallet. There was therefore no chose in action represented by the funds deposited in the wallet. Does this mean that Mr Baasland’s loss was suffered not in England but in Norway? I do not consider that it does. Although Mr Baasland had no claim in debt for the sum in the wallet, in substance he confidently and reasonably expected that he could have repaid to him the monies referable to his wallet which were in the bank accounts with RBS. The reality is that he suffered loss when the monies referable to his wallet were reduced because he placed bets, and so that the immediate damage that he suffered as a result of the alleged wrong was in England.[46]If I had reached a different conclusion about where the damage occurred, I should have nevertheless considered that English law would govern the claim because article 4(3) of the Rome II Regulation applies. Any tort, as it seems to me, is manifestly more closely connected with England than any other country because(i) the losses occurred by way of dealings with funds in an English bank account,(ii) they resulted from the facilities offered through a website which was owned by an English company, which was operated from England, and to which Mr Baasland might have had access from England, Norway or any other country, and(iii) the relationship was governed by a relationship of which the proper law or putative proper law is English.[47]I next deal with the question which law governs any claim in tort, or any issue relating to tort, under the provisions of the 1995 Act. Section 11 of the 1995 Act stated the “general rule” as follows:
“(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort ... in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being – (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant element or elements of those events occurred.”
[48]Section 12 of the 1995 Act states a secondary rule that may displace the general rule:
“If it appears, in all the circumstances, from a comparison of – (a) the significance of the factors which connect a tort ... with the country whose law would be the applicable law under the general rule; and (b) the significance of any factors connecting the tort ... with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. (2) The factors that may be taken into account as connecting a tort ... with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort ... in question or to any of the circumstances or consequences of those events.”
[49]The first question is therefore where the “events constituting the tort” occurred. The essence of the wrong of which Mr Baasland has complained is that Hillside made available to him gambling facilities without ensuring that there were controls, warnings and other safeguards to protect him, and as a result he suffered financial loss. The essential elements of the alleged tort are(i) that Hillside made available gambling facilities to Mr Baasland and(ii) that Mr Baasland sustained his financial loss. For the reasons that I have already explained, I conclude (i) that the facilities were provided, substantially if not wholly, in England through a website operated in England; and (ii) that Mr Baasland’s losses were suffered, in substance, in England.[50]I add that, if I had not reached this conclusion about the application of the general rule in section 11 of the Act, I would have concluded that English law governs the claim because of the secondary rule in section 12. My reasons are similar to those which I have explained in relation to article 4(3) of the Rome II Regulation.[51]As for any claim that might be brought in contract, I have already explained why I conclude that, so far as is material, the law or putative law governing any contractual arrangement is English law, and in any event not the law of Norway.[52]I therefore accept Mr Shah’s first submission. Although some of the issues about the governing law are of some complexity, I conclude that any claim which Mr Baasland might have is probably governed by English law, and, more importantly, that there is no realistic possibility of Mr Baasland succeeding in an argument that he has a claim governed by the law of Norway.[53]I also accept that under English law there is no real prospect of Mr Baasland establishing a claim either in tort or contract. I can deal with this briefly because in the recent case of Calvert v William Hill Credit Ltd., [2008] EWHC 454 (Ch) Briggs J considered whether a bookmaker can incur liability in respect of gambling losses to customer who is, and is known by the bookmaker to be, a problem gambler. The claim in that case was advanced on the basis of tortious negligence. Briggs J rejected the argument that the common law imposes a duty of care on a bookmaker towards a customer who appears to be a problem gambler to take reasonable steps to offer assistance and not to exploit his vulnerability by allowing him to continue to gamble. I need only say that I agree with this conclusion reached by Briggs J for the reasons that he gave, and I do not propose to repeat them or to attempt to summarise them. Indeed, in this case Hillside might well be in a stronger position than the bookmakers were in the case considered by Briggs J in that there is no evidence that they did or should have known, believed or suspected that Mr Baasland was a problem gambler. I add that, although case decided by Briggs J went to the Court of Appeal, there was no appeal against his decision on the point that is relevant here.[54]Whatever may be the position under Norwegian law, Mr Baasland would not under English law have a claim on the basis of some strict liability such as Steenstrup Stordrange assert. The only possible basis of a claim in tort would be one in negligence.[55]I also do not consider that Mr Baasland could establish a claim in contract because of an implied term in some contract with Hillside that they would protect him or take reasonable steps to do so, or upon any other contractual basis. Mr Baasland would have to show that such a term is to be implied because it is necessary in order to give business efficacy to the contractual arrangements or because it is obvious that the parties intended that Hillside should be under such an obligation. There is no real prospect of him doing so.[56]I conclude that Mr Baasland has no real prospect of defeating Hillside’s contention that they are under no liability in tort or otherwise for any loss or damage that he might have suffered. I accept that it is right to make the declaration that they seek. In view of the threatened proceedings, Hillside are understandably and reasonably concerned that they might otherwise face litigation in the future, and they are entitled, to my mind, to establish their legal position.[57]There is no compelling reason this matter should go to trial. I consider that Hillside should be granted the summary judgment that they seek. I recognise that they could, had they seen fit, have applied for judgment in default of defence, but they preferred to seek summary judgment because they believe that it might be given more recognition in other jurisdictions than a judgment in default of pleadings. I do not know whether they are right in that belief, but that is no reason that the court should refuse their application[58]I therefore grant Hillside’s application for summary judgment.

Cited in 9 later judgments