UK: Long Website Terms Did Not Bind Customer And Were Unfair

Last Updated: 10 July 2012
Article by Mark Alsop

Spreadex Limited v Colin Cochrane [2012] EWHC 1290 (Comm)

Mr Cochrane opened an online account with Spreadex, a spread betting bookmaker. At the end of the signing up process, the website instructed him to click to view the customer agreement and 3 other documents. There was then the usual provision stating: "Once read and understood, please click on "Agree" to signify your agreement to the terms". Mr Cochrane was successful and built up a credit balance of more than £60,000. One morning he went online with his girlfriend's son watching. He then went away for a couple of days, with no access to the internet. When he came back, he found that his account was down £50,000, due to (according to his account) numerous trades undertaken in his absence by the son. Spreadex was not sympathetic and claimed for immediate payment. It sought summary judgment contending that there was no arguable defence. In doing so, it conceded that the court should accept Mr Cochrane's account and that the trades were made by a person not actually or sensibly authorised by him. The key wording in the terms on which Spreadex relied was clause 10.3 which stated that: "Your password must be declared, together with your account number, when you wish to access your account. You will be deemed to have authorised all trading under your account number...".

The High Court (David Donaldson QC) found in favour of Mr Cochrane. First, the wording of cl 10.3 could only be binding on Mr Cochrane if it was part of a contract. That necessitated the identification of the contract. In large part, the terms did no more than set out the terms which would form the part of each individual contract created later if and when the customer made an offer for a particular trade which Spreadex accepted. Therefore, there had to be some binding contract which pre-existed the individual trades. Spreadex was unable to point to any promise or commitment by it which might form the part of a contract and provide the consideration necessary to make it legally binding. Spreadex had the absolute right to refuse to accept any bet, the right to reduce or remove altogether its online service and the right to close or suspend an account at any time. It was submitted that the necessary consideration could be found in the grant of access to the platform, but the judge disagreed; the provision of an online interactive platform was in effect the more modern equivalent of being ready to enter into contracts by telephone. Thus, Spreadex failed to establish the existence of any legal contract.

The other issue was the application of the Unfair Terms in Consumer Contract Regulations 1998 which make unenforceable terms which are unfair, being terms which are contrary to the requirement of good faith and cause a significant imbalance in the party's rights and obligations, to the detriment of the consumer. Under the suggested pre-trade contract, Spreadex would have no obligations and the customer would have no rights. In contrast, the customer would be made liable to any trade on his account not made or authorised by him. This was a significant imbalance. It was also contrary to good faith. A "more appealing case might have been made" if clause 10.3 had only applied to unauthorised trades facilitated by the negligence of the customer, but the judge did not express a view on whether it would have been fair.

The judge also took into account as a compounding factor the fact that there were four documents which could be viewed by clicking the link. He suspected that most would have passed up the invitation and proceed directly to click "agree", even though it was suggested that they should do so only when they had read and understood the documents. Even if Mr Cochrane had chosen to look at the documents, he would have been faced with a customer agreement which alone had 49 pages containing the same number of closely printed and complex paragraphs. "It would have come close to a miracle if he had read the second sentence of clause 10(3), let alone appreciated its purport or implications". This was an entirely inadequate way to seek to make the customer liable for any potential trades which he did not authorise and was a further factor rending the clause unfair.


Not too much should be read into this decision, not least because Mr Cochrane represented himself and the judgment is short. But it does show that caution should be exercised. In particular:

  • when drafting website terms for individual transactions, it is important to have the right structure to impose overarching terms that apply whether or not individual transactions are carried out. Here, for instance, Spreadex failed to incorporate specific, binding terms applicable on the opening of the account, whether or not the customer undertook any trades.
  • making all the terms one sided, making the terms long and making them accessible by link only runs the risk of the terms being unfair and thus unenforceable under the UTCCR. One suspects that there will be more rulings of this nature by the courts, as consumers wake up to the requirement that they have to be given notice of terms in "plain, intelligible language". Apparently, the PayPal terms have more words than Hamlet and iTunes more than Macbeth.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.