The Burden of Proof- Part II

“A legal standard that requires parties to demonstrate that a claim is valid or invalid based on facts and evidence”

Having read part I of my blog, you will have come to the conclusion I was displaying signs of gambling disorder and a vulnerable person and intervention from an operator, as part of their licencing conditions, should have occurred. As promised, part II of my blog will incorporate evidence of the hurdles faced when trying to complain about how I was treated.  The complaints process in gambling and the cycle of unaccountability has already been highlighted on a Gamvisory blog you can read here.

Complaint to operator

As directed by the Gambling Commission, I made a complaint directly to the operator in the first instance.

My initial complaint was made on the basis of the operator failing to protect me as a vulnerable person. For some unknown reason, this complaint was actually forwarded to my VIP manager who instead of referring my complaint to the relevant department, he tried to divert my complaint by self-excluding my account for six months with the following caveat added at the end:

“After this period has expired you may contact us via phone with a request to reactivate your account. Bear in mind that you will need to wait 24 hours cool off period until reactivation of your account. 

Kind Regards, VIP Manager Rich”

So this employee in effect has given a person suffering from a gambling disorder full information on how to gamble again as soon as physically possible after self-excluding my account for the least time possible instead of helping him.

Following the above unhelpful correspondence, I had to ask if my complaint was being properly investigated. I received the following reply:

“We have reviewed your complaint, taking into consideration all outlined facts and circumstances. Upon checking, we can confirm that the account was handled in accordance with our Responsible Gaming procedures. 

We handle accounts based, and in full compliance with the regulatory requirements. 

As our internal process has been fully exhausted, if you remain unsatisfied with the outcome, you have a right to escalate this complaint to the Independent Betting Service (IBAS), our independent Alternative Dispute Resolution (ADR) body. You have free right of access to the ADR function. 

Thank you for understanding.” 

Please note that the referral of my complaint to an ADR is completely incorrect advice as IBAS do not deal with adjudications in relation to social responsibility complaints. This is made clear on their website (www.ibas-uk.com).

Complaint to the Gambling Commission

Having to have in effect carry out my own investigation, I contacted the regulator for the gambling industry namely the Gambling Commission, I sent them a full evidence package of my experience with the operator. In the hope that they would carry out their own investigation and assist me, I received the following reply from them:

“You have already been through ****** operator’s complaints procedure. They have told you they believe your account was handled in accordance with their Responsible Gaming procedures.  They have also told you their internal process has been fully exhausted and that if you remain unsatisfied with the outcome, you have a right to escalate this complaint to the Independent Betting Adjudication Service (IBAS).

Firstly, I must advise you we are a Regulator not an Ombudsman. This means we cannot get involved in individual customer disputes as it is not within our legal powers to do so. If you are looking to obtain winnings or get your deposits back, we also cannot help you get your money.

Further, you will be unable to escalate your complaint to IBAS. This is because IBAS are not able to adjudicate on complaints regarding whether an operator has failed in their social responsibility requirements.

If you are still unhappy after following ******* complaints process therefore, then your only option is to consider seeking legal advice about taking the operator to court. 

We do not have the legal powers to help you get your winnings or your deposits back.”

So, in effect, the body which provides gambling licences (GC) with the power to remove and fine operators for regulation breaches which includes the failure to protect vulnerable people can’t help individual vulnerable people who have been exploited. Further to this, if they are unable to deal with individual complaints – how do they get their evidence for regulatory action/ rulings.

The true owner of operator reveals themselves

With nowhere to turn, I decided to take legal action against the operator. At this time, I wrongly believed that I was an equal part to blame for my experience and looked to claim half my losses back as a halfway point.

With no legal training or experience I issued a pre-action letter before action to the named company who owned the licence on behalf of the operator I had a dispute with and to my surprise I was contacted by the senior management from a completely different company who are a well-known online gaming and sports betting software provider (I am still trying to identify how they are linked to this company).

I was contacted by two senior people within this company who assured me that my complaint was fully reviewed with their findings as follows:

“We do note that you had periods of heightened activity (during your highest period of activity, being the 7 month period you refer to in your correspondence i.e. from 1 October 2015 to 30 April 2016, your net loss was £1,507 per month), however even in such periods the nature and size of your deposits did not exceed the relevant thresholds in ******* responsible gambling processes and procedures such that a responsible gambling interaction would have been triggered.”

So, this company appears to see it acceptable for an average UK resident to lose £10,549 in around half a calendar year – remember my actual losses were worse than this, £10,638 in a four-month period (February to May 2016) and an average of £2659.50 per month which this person has failed to answer. It is mind boggling to understand what their “relevant thresholds” actually are and it appear that think it is acceptable to lose a figure of over 31k per year acceptable to them (which would have been my total losses for the full year had I not run out of money).

“You also refer in your correspondence to us to one occasion where you were contacted by a ******** Casino employee who had noticed that one of your deposit transactions had been declined and that instead of asking if you had a problem and trying to identify the reason why it was declined, you were encourage again………******* proceeded to contact you to offer transactional assistance in an expression of good customer service”

It appears an employee encouraging people with failed deposits (a sign of lack of money) to try a lower amount is actually good customer service.

“Given that the bonus offers were in response to your complaints or direct requests for bonuses, we do not agree that you were persuaded to keep your account open as you seem to suggest. Furthermore given that on numerous occasions you were denied a bonus and your account closed, it is evident that ****** did consider your player history and circumstances on a case by case basis and concluded that it was not always appropriate or responsible to grant you bonuses and did not want to encourage you to continue gambling in those circumstances”

This implies there were concerns about my gambling behaviour.

“Our thorough review of your player history and explanations as to how the conclusions above were drawn hopefully help to demonstrate to you our commitment to responsible gambling practices”

The operator seems concerned enough not to provide bonuses when I begged for them (a common sign of a person suffering from a gambling disorder) as they did not want to encourage my gambling, but they still say that they did not have any concerns about me.

Please note – this person failed to provide an explanation for my 153 cancelled withdrawals in a three-month period (another sign of a vulnerable person).

Please note that under the GC website, they have a specific guidance in relation to customer interaction (https://www.gamblingcommission.gov.uk/PDF/Customer-Interaction-Formal-Guidance-Remote-July-2019.pdf).They provide examples of gambling harms and relevant indicators when a vulnerable person is suffering from a gambling disorder, requiring intervention which include:

–       An escalation in deposit levels or large losses (time and spent indicators)

–       Cancelled withdrawals and failed deposits (account indicators)

–       Changing deposit limits (use of gambling management tools)

–       Request for bonuses following losses or talking about the negative impacts of their gambling (customer-led contact)

–       Placing a high number of in-play bets (play indicators)

–       High staking following a win (A ‘big win’ or a windfall’)

So in effect my gambling behaviour with this company hit every heading under the GC guidance which should require interaction by them. In some cases, I hit more than one behaviour for each heading.

This company did not feel it relevant to interact with a person showing NINE tell-tale signs that he required it.

Court action and threatening legal letters

With no other option left to me, I decided to go ahead with a claim against the operator/ operator owner using the small claims court process. I filled out my complaint and paid my fee with the protection of a limit of the costs to the other side.

Very soon after starting this process, I received what I would describe as a threatening letter from a UK lawyer who apparently regularly represent a number of gambling companies in disputes. Within this letter contained the following wording:

“We will file a defence on or before ******, but are writing to you now to let you know the very substantial legal and factual hurdles your claim faces, and to give you the opportunity to withdraw the court case now before very significant legal costs are incurred. If you do not there is a very strong likelihood that a high proportion of those legal costs will ultimately be ordered to be paid by you. 

Although we set out the detail below, it is important that you know that: 

  • a number of cases have already been decided by the courts in England. Each concluded that gambling operators do not owe problem gamblers a duty of care to prevent or restrict their gambling, and every customer lost their claim; and 
  • the regulatory responsibilities that operators have, overseen by the Gambling Commission, do not give customers in your position any rights to bring claims, even if those responsibilities are not met.”

With regards to the mention of the GC, is was them that told me to consider taking the operator to court in the first place.  To be told conflicting advice by a legal firm is contradictory and very concerning.  The letter continued, by stating:

“******* was under no contractual, tortious or regulatory duty to assess the affordability of your gambling. Affordability was and is a matter for you and you only.”

“You will see that there is nothing in the terms and conditions that suggests that ****** owed you a duty to comply with the regulatory code. 

You may say it must be implied that ********* would comply with its regulatory responsibilities, but again the law is against you.”

“As above, it is denied that ******** owed you any duty, contractual or tortious to comply with the regulatory code (“LCCP”) and/or take reasonable steps to ensure you were betting within your means and responsibly.”

“********* was not required by the LCCP to interact with you specifically nor was it prohibited from marketing to or offering bonuses or other incentives to you.”

It would appear that the LCCP around social responsibility are not being taken seriously.  

“For the record it is denied that anything that ******* could have done differently would have reduced any of your losses. 

The highest that your claim could possibly be put, assuming you can prove that you are in fact a problem gambler, is that you should have been denied access to your ****** account from some date as yet not identified by you.”

“it makes sense for you to withdraw your claim by completing a notice of discontinuance. We are instructed that provided you do that by ******** neither ******* nor ****** will seek reimbursement of their legal costs from you.”

In other words, remove your claim or it is going to cost you a lot of money.

Back to the GC I go

Having received such a strongly worded letter, whilst still classing myself as a vulnerable person – I decided that at this time I did not have the capacity to go through with the process and withdrew my legal claim, such was the aggressive tone of the letter I received.

I then thought it pertinent that I should report this legal letter and the behaviour of the owner of the operator to the Gambling Commission with the specific issue of them saying that they did not care for the GC’s regulations which I thought as a serious offence.

Within the reply I received from the GC:

“I understand that you have previously made the Commission aware of a social responsibility complaint you raised with *******, and have sent in evidence relating to your complaint. You have now proceeded to take legal action against the operator through the small claims court process, and would like to bring to our attention the reply you received from the operator’s legal team. I understand the concerns you have raised about the response you received from the operator, and that you believe it demonstrates the LCCP does not matter to them.

Thank you for providing us with this update on your case, I appreciate that this has been a difficult situation. We do advise consumers to seek legal advice about taking legal action, but I appreciate that this is not always an easy route to access and that there can be significant costs involved. 

Ensuring that operators adhere to their Licence Conditions and Codes of Practice (LCCP) is key to our regulation of the gambling industry. Please be assured that we do take seriously complaints where the operator may be in breach of their licence conditions. I can confirm that we have shared the information you previously supplied to us with our compliance team, and I will update our records of your complaint with the letter you received. 

Unfortunately, due to the confidential nature of any regulatory action that we may take, we are not able to correspond with you directly about any progress, or any action taken. Information we receive such as this does helps us greatly to identify where there may be concerns with operators and consider if there has been a regulatory breach. So we would like to thank you again for bringing this matter to our attention.”

I was then of the opinion that the GC would take this matter seriously and deal with same, but the only update I have had in relation to this company from the GC is that they have actually chosen them to help lead a working group on their behalf this year (2020), which seems absolutely astounding to have an operator attempt to control this.

A broken complaints process

I hope the above, provides examples that highlight my concerns with regards to how gambling operators appear to pay little regard for rules and regulations laid out by the Gambling Commission. It is quite clear that insufficient checks are being carried out on individuals showing clear signs of gambling harm.  In recent weeks we have witnessed an ongoing charm offensive by the new “standards body” for the industry focused on raising standards and gambling operators making various pledges.  We are told the industry is serious about change and such wrongdoings are historic.  To be clear, for anybody trying to suggest this matter is a thing of the past or historic, it most definitely is not – I received the legal letter in July 2019.

Gambling disorder has taken me to utter despair.  Anxiety, stresses, financial woes and breakdown of relationships with family and friends.  There is a stigma, that this is all the individual’s fault when clearly it is not.  The scale of destruction to people’s lives is being facilitated by gambling operators not adhering to rules and a regulator who is not fit for purpose.  Most people would have given up by now, but I won’t.

I am currently seeking legal advice in relation to see if I am able to release the full identity of the operator, operator owner and legal entity along with all documentary evidence in full and unredacted so please stay tuned…..