Gibson v TSE Malta LP (t/a Betfair): Breach of Gambling Commission Licence Conditions Does Not Void Gambling Contracts

Introduction

The Court of Appeal in Gibson v TSE Malta LP (t/a Betfair) [2025] EWCA Civ 1589 addresses two major questions in modern gambling law:

What must a remote gambling operator know (or be taken to know) about a customer’s problem gambling in order to incur liability in negligence, via alleged breach of the Gambling Commission’s Licence Conditions and Codes of Practice (“LCCP”)?
Does a breach of licence conditions under the Gambling Act 2005 render individual gambling contracts void, enabling a losing punter to recover losses in unjust enrichment?

Mr Gibson, a successful property landlord with a substantial rental portfolio, gambled on Betfair’s betting exchange between 2009 and 2019 and lost over £1.4 million. He alleged that Betfair knew or ought to have known that he was a “problem gambler” and, in failing to stop him, had breached both the LCCP and a duty of care in negligence. In the alternative, he argued that any non-compliance with licence conditions made the betting contracts illegal and void under s33 of the Gambling Act 2005, thereby entitling him to restitution of his losses.

HHJ Bird in the London Circuit Commercial Court rejected the claim, finding that Betfair neither knew nor ought to have known that Mr Gibson was a problem gambler, that there was no breach of the LCCP, no actionable duty of care and, even if there had been, causation was not proved. The unjust enrichment claim based on s33 was also dismissed.

On appeal, permission was granted because of the broader issues concerning the responsibilities of licensed gambling operators. The Court of Appeal (Sir Colin Birss C, with Popplewell LJ and Sir Julian Flaux agreeing) dismissed the appeal, upholding the trial judge’s factual findings and, in an important obiter ruling, holding that a breach of licence conditions does not render gambling contracts void under s33.

Summary of the Judgment

The core outcomes of the Court of Appeal’s decision are:

No actual or constructive knowledge of problem gambling (Ground 1): The trial judge’s conclusion that Betfair neither knew nor ought to have known that Mr Gibson was a problem gambler at any point between 2009–2019 was upheld. The Court of Appeal refused to interfere with those factual findings.
No established breach of the LCCP: Because Betfair did not know or have sufficient reason to suspect problem gambling, there was no breach of the relevant LCCP social responsibility provision (LCCP 3.4.1 on customer interaction).
Policy framework compliant with LCCP: Betfair’s policies did envisage refusing service/closing accounts where a customer was identified as a problem gambler. The suggestion that their policies fell short of the requirements of LCCP 3.4.1 was rejected on the evidence.
Duty of care and causation issues left undecided (Grounds 2(a)–(c)): The Court declined to rule on whether gambling operators owe a general duty of care to prevent or limit losses by problem gamblers, or on causation, because those issues were academic in light of the factual findings on knowledge.
Breach of licence conditions does not void gambling contracts (Ground 3 – obiter): Even if an operator breaches licence conditions or the LCCP, s33 of the Gambling Act 2005 does not make the gambling contracts void or unenforceable. The statute penalises the operator but does not deprive contracts of legal effect. Losing punters cannot rely on s33 to recover losses in unjust enrichment.

The binding significance lies primarily in the strict approach to appellate review of factual findings and in the obiter but carefully reasoned rejection of the “void contracts” argument under s33.

Legal and Regulatory Background

Gambling Act 2005: A “watershed”

The Court emphasised (reflecting the judge’s reasons at first instance) that the Gambling Act 2005 marked a “watershed” in gambling regulation:

It sought to recognise the economic benefits of regulated gambling.
At the same time, it introduced a modern regulatory framework with enhanced protections for children and vulnerable persons.
It followed the 2001 Gambling Review Body report and the Government’s policy paper “A Safe Bet for Success”.

The statutory scheme

Several key provisions of the Act underpin the decision:

s20: Establishes the Gambling Commission.
s24: Requires the Commission to issue codes of practice about how gambling facilities are provided. These codes must address protection of children and other vulnerable persons from harm or exploitation.
s24(8): Critically, provides that failure to comply with a code of practice “shall not of itself make a person liable to criminal or civil proceedings”, subject to specific statutory exceptions.
s33: Makes it an offence to provide facilities for gambling without an operating licence or otherwise than in accordance with its terms and conditions.
s5(1) & s13: Define “facilities for gambling” and “betting intermediary”, confirming Betfair was within the statutory framework.
s82: Any operating licence is subject to compliance with any relevant “social responsibility” provisions in the LCCP. Breach may lead to regulatory action.
s336: Gives the Commission an express power to declare a bet “unfair” and void it, in which case “any contract or other arrangement in relation to the bet is void”.

The LCCP – Social Responsibility Code 3.4.1

The relevant LCCP provision (May 2015 version) is Social Responsibility Code 3.4.1 (“Customer Interaction”), which (in simplified form) provides:

Licensees must implement policies and procedures for customer interaction where they have concerns that a customer’s behaviour may indicate problem gambling.
Those policies must include:
- The circumstances in which consideration should be given to refusing service or barring customers.
- Specific provision for making use of all relevant sources of information to guide effective customer interactions.

Mr Gibson’s case in negligence was built on the contention that Betfair:

Owed him a duty of care.
Breached the LCCP’s social responsibility provisions (in particular, by failing to refuse service or intervene effectively).
That breach of the LCCP amounted to breach of duty in negligence.
That breach caused his losses.

The Court of Appeal accepted that LCCP provisions can form part of the factual and normative context in which any alleged duty of care is assessed, but it did not need to decide how far they can be used to found a duty or standard of care, because the appeal failed on the threshold question of knowledge.

Ground 1: Knowledge, LCCP Breach and Negligence

Issue on appeal

Ground 1 challenged the judge’s central factual conclusion at first instance:

“[128] It cannot in my judgment be said that Betfair knew or ought to have known that Mr Gibson had a gambling problem at any time between 2009 and 2019.”

Mr Gibson argued that this finding was “wrong” in the sense articulated in Re B (A Child) [2013] UKSC 33 and Haringey LBC v Ahmed [2017] EWCA Civ 1861 – i.e. unsupported by the evidence and such that no reasonable judge could have reached it. He submitted that the judge under‑appreciated a series of factual indicators that, taken cumulatively, should have led Betfair to recognise that he was a problem gambler.

The Court of Appeal held that the judge’s conclusion was not only open to him, but was the right one on the evidence. There was no basis to overturn his factual findings.

Appellate restraint on fact-finding

The Court’s starting point was orthodox appellate principle:

Re B (A Child) [2013] UKSC 33: An appellate court will interfere with findings of fact only where the trial judge is “plainly wrong”. The appeal is not a re-trial.
Haringey LBC v Ahmed [2017] EWCA Civ 1861: The Court reiterated the high threshold to overturn factual findings, particularly those based on evaluation of oral evidence and credibility.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5: Lewison LJ’s warning against “island hopping” – selectively focusing on isolated pieces of evidence divorced from the whole evidential context. The Court of Appeal expressly applied that caution here when considering a document about data analysis of problem gambling.

Against that backdrop, the Court reviewed the key reasons the judge gave for finding that Betfair could not reasonably be taken to have known of a gambling disorder.

The judge’s four “difficulties” for the claimant

At [129], the trial judge summarised four “difficulties” that made it impossible, on the evidence, to conclude that Betfair knew or ought to have known that Mr Gibson was a problem gambler:

He kept his gambling problem to himself.
He could (on the face of the information he gave) afford his gambling.
He misled Betfair about his gambling.
It is very difficult to identify a problem gambler who is not being honest.

The Court of Appeal analysed each and held they were amply supported by the evidence.

(1) Mr Gibson kept the problem to himself

Evidence from Betfair’s VIP manager, Mr Rourke – whom the judge found “reliable and impressive” – was that:

Mr Gibson came across as someone who enjoyed his gambling.
He never mentioned anything that gave rise to concern.
He appeared calm, level-headed and rational in his interactions.

The judge also rejected Mr Gibson’s uncorroborated assertions that he had confessed his gambling difficulties to a Betfair hospitality representative or his pub landlord. On this basis, the conclusion that Mr Gibson concealed his problem was clearly open to the judge.

(2) On the available information, he could afford his gambling

Affordability was pivotal. The Court distinguished two questions:

Actual affordability: What Mr Gibson could in fact afford.
Perceived affordability: What Betfair could reasonably infer, based on information supplied.

For negligence and LCCP compliance, the relevant question is the second: how things reasonably appeared to Betfair at the time, given the information they had and what they were entitled to believe.

AML checks and source of wealth

From 2015 onwards, Betfair repeatedly subjected Mr Gibson’s account to anti‑money‑laundering (“AML”) reviews. When AML triggers were hit, Betfair:

Requested detailed information on the source of funds used for gambling.
Suspended the account if information was not forthcoming.
Lifted suspensions once satisfied as to source of wealth and affordability.

These reviews generated substantial documentation about Mr Gibson’s finances, including:

His description of himself as a “multi-millionaire”.
Evidence of a large property portfolio worth several million pounds.
Information about rental income (c. £20–25k per month before tax and expenses).
Disclosures about selling and remortgaging properties to generate capital.

At one point in June 2018, an internal AML assessment expressed concern that Betfair was “a long way off” being comfortable with his source of wealth. However, after further documentation (including details of property sales and estimated profits), Betfair concluded that the sources of wealth were adequate and reopened the account.

The Court accepted the judge’s findings that:

None of the information supplied to Betfair suggested that Mr Gibson could not afford his losses.
In the context of his property business, selling and remortgaging assets appeared consistent with normal commercial practice, not obviously symptomatic of harm.
Mr Gibson consistently reassured Betfair that he was comfortable with his level of gambling.

The appellant argued that the real test should have been whether losses were fundable out of income rather than capital. The Court rejected that submission as an artificial accounting distinction in this context. For a landlord whose business model included buying and selling properties, drawing on capital was not inherently alarming.

The Court therefore upheld the judge’s conclusion that, “on the face of the information he gave to Betfair”, Mr Gibson could afford his gambling – and that this significantly undermined any suggestion that Betfair ought to have suspected problem gambling merely from the scale of his losses.

AML vs responsible gambling functions

Mr Gibson also argued that, even if AML staff considered losses affordable, Betfair’s responsible gambling team had a separate duty to review affordability. The Court held that, at the time, there was no regulatory requirement for a distinct affordability assessment by the responsible gambling team over and above AML checks. The judge’s finding that AML and social responsibility interactions were, in reality, interwoven was well supported on the evidence.

(3) and (4) Misleading Betfair and the limits of data analysis

The judge found that Mr Gibson had actively misled Betfair in some respects, and that this made it “very difficult to identify a problem gambler who is not being honest”. For example:

He reassured Betfair about his financial position.
He portrayed himself as affluent and in control.
He falsely claimed at one point to have legal advice that Betfair were infringing his rights.

On the argument that Betfair should nonetheless have inferred a problem from betting patterns, the claimant relied on features such as:

Very high overall losses (over £1.4m).
Large single‑event stakes (up to £20k on a correct score market).
High volume of bets (over 20,000 bets in six years – more than five per day).
Betting on obscure football matches.

The Court accepted that heavy losses can be “an obvious indicator of problem gambling” (as the judge had acknowledged), but it stressed:

The judge expressly found at [133] that, at the material time, it was “very difficult to identify a problem gambler from data analysis alone”. There was substantial evidence to support this.
One internal document suggesting data could identify problem gambling was insufficient to undermine that finding, particularly when viewed in the round – this was the “island hopping” problem from Fage.
The judge clearly understood the scale and pattern of Mr Gibson’s gambling, and the extent of Mr Rourke’s knowledge of that pattern as VIP manager.

The Court concluded that, even taking the volume and nature of betting into account, together with the AML material, the trial judge was entitled to find that Betfair did not have sufficient reason to suspect a gambling disorder, given Mr Gibson’s wealth, reassurances and active concealment.

Betfair’s policies and the “refusal of service” requirement

The final aspect of Ground 1 concerned whether Betfair’s internal policies complied with LCCP 3.4.1. Mr Gibson argued that:

Their procedures provided only for suspensions and AML interventions, not for outright refusal of service.
This fell short of the LCCP requirement that policies must include circumstances where consideration should be given to “refusing service” and/or barring customers.

Betfair responded that:

The relevant LCCP provisions at the time were “relatively undemanding”.
In any event, their policies did contemplate closing accounts permanently where a customer was identified as a problem gambler.

Although the judge had not made an explicit finding on this discrete point, the Court of Appeal relied on the oral evidence of Ms Lawson (head of responsible gambling), who stated that where a customer confirmed they were struggling, Betfair would not merely consider closure; the account would be “completely” closed. That evidence was unchallenged and demonstrated that Betfair’s policies did allow for refusing service to problem gamblers.

Since:

The factual premise of Mr Gibson’s argument (that Betfair had no “refusal of service” policy) was wrong; and
The Court had already upheld the finding that Betfair never reached the point of actually knowing or reasonably suspecting that Mr Gibson was a problem gambler,

there was no basis for finding a breach of the LCCP.

Conclusion on Ground 1

The Court of Appeal held that:

The judge had carefully addressed the evidence.
He applied no erroneous legal test for “problem gambling” or knowledge.
His conclusion that Betfair neither knew nor ought to have known of a gambling disorder was “entirely reasonable” and well‑supported.

Accordingly, Ground 1 failed. This was decisive because both the negligence claim and the statutory illegality/unjust enrichment claim depended, as a matter of pleading and logic, on establishing a breach of licence conditions predicated on Betfair’s knowledge (actual or constructive) of Mr Gibson’s problem gambling.

Grounds 2(a)–(c): Duty of Care, Negligence and Causation (Not Decided)

Grounds 2(a)–(c) challenged:

The judge’s finding that Betfair did not owe Mr Gibson a relevant duty of care to prevent his gambling losses.
His conclusion that there was in any event no negligence.
His finding that causation was not established because, even if Betfair had intervened, Mr Gibson would have gambled elsewhere to a similar extent (cf Calvert v William Hill [2008] EWHC 454 (Ch); [2008] EWCA Civ 1427).

The Court of Appeal, invoking Mummery LJ’s dictum in Housden v Wimbledon and Putney Commons Conservators [2008] EWCA Civ 200 against deciding unnecessary points, declined to rule on these issues:

“In general, it is unwise to deliver judgments on points that do not have to be decided. There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on.”

Since Mr Gibson’s appeal failed on the threshold factual issue of knowledge (Ground 1), there was no live context in which a definitive ruling on duty or causation was required. The important questions of:

whether, and in what circumstances, a remote gambling operator owes a tortious duty of care to protect problem gamblers from themselves; and
how causation is to be evaluated where a gambler might simply move to another operator,

were expressly left for another day.

Ground 3: Does Breach of Licence Conditions Void Gambling Contracts?

The claimant’s unjust enrichment theory

Mr Gibson’s alternative case was that, by virtue of s33 of the Gambling Act 2005:

It is a criminal offence to provide gambling facilities other than in accordance with an operating licence and its conditions (including social responsibility requirements derived from the LCCP).
Any gambling contracts entered into while the operator was in breach of those conditions were illegal and void ab initio.
As a result, he could bring a claim in unjust enrichment for restitution of all stakes paid under those contracts (or, on one formulation, under a single overarching contract between himself and Betfair).

The first instance judge rejected this argument, holding that the Act did not intend to void gambling contracts in such circumstances. The Court of Appeal agreed, essentially endorsing the judge’s reasoning and adding its own analysis. Although this part of the judgment is technically obiter (because the appeal failed on Ground 1), it is detailed and likely to be treated as authoritative.

The statutory illegality framework: Okedina v Chikale

The Court applied the framework in Okedina v Chikale [2019] EWCA Civ 1393, where Underhill LJ provided a clear summary of how courts assess whether a statute renders a contract illegal and unenforceable:

The question is whether Parliament intended that contracts made in breach of the statutory provision should be deprived of legal effect.
This is a matter of construction of the statute, using ordinary interpretative principles.
The statute may expressly so provide, or such an intention may be implied.
The fact that one party is prohibited from entering into such contracts does not automatically mean the contract is unenforceable by either party; the answer depends on the context and policy objectives.
Authorities such as Cornelius v Phillips [1918] AC 199, Phoenix Insurance Co v Halvanon Insurance Co [1988] 1 QB 216 and Hughes v Asset Managers plc [1995] 3 All ER 669 guide the analysis.

Textual and structural analysis of s33

Applying that approach, the Court considered:

The statutory language: s33 criminalises the provision of facilities for gambling by an unlicensed person or otherwise than in accordance with licence conditions. It is framed as a penal provision directed at the operator, not the customer. It says nothing about the civil validity of the resulting contracts.
s24(8): Parliament explicitly provided that failure to comply with a code of practice (such as the LCCP) “shall not of itself make a person liable to criminal or civil proceedings”, subject to express exceptions. The legislature therefore turned its mind to the civil consequences of LCCP breach and did not provide for automatic voiding of contracts.
s336: This provision gives the Gambling Commission a specific power to void an “unfair” bet, with the express consequence that “any contract or other arrangement in relation to the bet is void”. The existence of a tailored voiding power in one part of the Act is powerful evidence that Parliament did not intend a general, implied voiding rule to arise under s33 for any and all breaches of licence conditions.

The Court concluded that, read in its wider statutory context, s33 is about regulatory and criminal enforcement against operators, not about depriving consumers or operators of civil rights under gambling contracts.

Public policy considerations and the Phoenix Insurance analogy

The Court endorsed the first instance judge’s reliance on Phoenix Insurance Co v Halvanon Insurance Co and Kerr LJ’s discussion of policy in that case. There, the court held that a prohibition on carrying on insurance business without authorisation did not automatically invalidate insurance contracts, because:

The statutory prohibitions were designed to protect policyholders.
To render contracts void would perversely deprive policyholders of cover and undermine the protective purpose.

The Court noted an analogy: the Gambling Act’s licensing scheme is designed, in part, to protect consumers and ensure that only fit and proper operators (who comply with social responsibility requirements) provide gambling services. Yet if every bet made by an operator in breach of the LCCP were void:

Successful gamblers could be deprived of their winnings, contrary to the post‑2005 policy of making gambling debts enforceable.
Unsuccessful gamblers could use any regulatory breach – however technical, and regardless of its relevance to their own vulnerability – as a sword to reclaim losses, leading to chaos and undermining commercial certainty.

As the trial judge put it (and the Court approved), it would be entirely contrary to public policy if:

A successful gambler could not enforce their winning bet; but
A losing gambler could routinely avoid paying or reclaim their losses based on any breach of licence conditions.

The Court also rejected the claimant’s submission that protecting vulnerable gamblers was “the” overriding policy of the Act. While protection of vulnerable persons is a central objective, it is not the only one. The Act also:

Modernises and liberalises gambling law.
Establishes a coherent regulatory framework.
Recognises and facilitates the legitimate gambling industry.

Reading s33 as impliedly voiding contracts for any LCCP breach would place disproportionate weight on one objective at the expense of others.

Overall conclusion on s33 and contract validity

The Court held that:

There is no express provision in the Gambling Act 2005 rendering gambling contracts void for breach of licence conditions or LCCP provisions.
There is no necessary implication from s33 that Parliament intended to void such contracts.
s24(8) and s336 strongly suggest the opposite: Parliament chose regulatory sanctions (including targeted voiding power in unfair bet cases), not blanket civil invalidity.
Allowing losing gamblers to treat every breach of licence conditions as rendering contracts void and recoverable in unjust enrichment would be contrary to the scheme and policy of the Act.

The Court therefore rejected Ground 3. As a matter of principle, a gambling operator’s breach of its licensing conditions (including the LCCP) does not, without more, render individual gambling contracts void or unenforceable.

Precedents and Authorities: Their Influence on the Decision

Appeals on fact and the standard of review

Re B (A Child) [2013] UKSC 33:
- Underpins the “plainly wrong” threshold for overturning factual findings.
- Used by the Court to frame the claimant’s heavy burden in challenging the judge’s conclusion on Betfair’s knowledge.
Haringey LBC v Ahmed [2017] EWCA Civ 1861:
- Reaffirmed the standard of appellate restraint in respect of factual assessments.
- Cited by the claimant; accepted by the Court as setting the applicable test, but held not to be satisfied here.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5:
- Lewison LJ’s warning against “island hopping” was applied to ensure that individual items of evidence (such as a data analysis document) were not over‑elevated against the overall evidential picture.

Statutory illegality and void contracts

Okedina v Chikale [2019] EWCA Civ 1393:
- Provided the conceptual framework for determining whether the Gambling Act 2005 impliedly voids contracts entered into in breach of statutory obligations.
- Emphasised that the issue turns on statutory construction and legislative intent, considering policy and context.
Phoenix Insurance v Halvanon Insurance [1988] 1 QB 216:
- Demonstrated that statutory prohibitions relating to the authorisation of insurers do not necessarily invalidate insurance contracts.
- Kerr LJ’s analysis of policy – that voiding insurance contracts would undermine the protection of policyholders – was analogised to gambling contracts and consumer protection.
Cornelius v Phillips [1918] AC 199, Hughes v Asset Managers [1995] 3 All ER 669:
- Part of the line of authority summarised in Okedina, illustrating the range of outcomes when statutory prohibition intersects with contracts.
- Reinforce that the effect on contractual enforceability depends on the particular statute and policy rationale.

Duty of care and causation in gambling loss claims

Calvert v William Hill [2008] EWHC 454 (Ch); [2008] EWCA Civ 1427:
- Referenced by the trial judge on causation: even if an operator is at fault (for example, in failing to implement self-exclusion effectively), a claimant may still fail on causation if he would have gambled elsewhere and suffered similar losses.
- The Court of Appeal here did not revisit Calvert, but its citation underscores the continuing importance of causation in gambling negligence claims.

Judicial restraint and obiter dicta

Housden v Wimbledon and Putney Commons Conservators [2008] EWCA Civ 200:
- Mummery LJ’s warning against deciding issues not necessary for resolution of a case was relied upon to justify not ruling on Grounds 2(a)–(c).
- Reflects the Court’s commitment to avoiding unnecessary obiter dicta, particularly in a developing area like gambling operators’ duties of care.

Clarifying Key Legal and Regulatory Concepts

“Problem gambler” and “problem gambling”

In this case, the court adopted a practical, non-technical definition (drawn from the British Gambling Prevalence Survey 2010) that:

“Problem gambling is gambling to a degree that compromises, disrupts or damages family, personal or recreational pursuits.”

Although expert psychiatrists agreed that Mr Gibson had a gambling disorder, the appeal did not turn on the fine details of clinical criteria (such as DSM diagnostic standards). The critical question was whether Betfair had, or should have had, concerns that his behaviour indicated problem gambling – not whether he met a particular psychiatric threshold.

Actual knowledge vs constructive knowledge

Actual knowledge means what Betfair in fact knew – for example, if Mr Gibson had told them “I have a gambling addiction”.
Constructive knowledge means what Betfair ought reasonably to have inferred from the information available – for instance, if the combination of losses, financial data and communications would lead a reasonable operator to suspect a gambling problem.

The Court’s key holding was that Betfair had neither actual nor constructive knowledge on the facts, given Mr Gibson’s wealth, reassurances and misleading conduct.

LCCP and “social responsibility code provisions”

The LCCP are codes issued by the Gambling Commission under s24 of the Act. They contain:

Ordinary code provisions – guidance that operators are expected to take into account.
Social responsibility code provisions – mandatory requirements incorporated into operating licences (s82), breach of which can attract regulatory sanction.

Social Responsibility Code 3.4.1 required operators to:

Monitor customer behaviour for signs of problem gambling.
Interact with customers where concerns arise.
Have policies on refusal of service/barriers and on using “all relevant sources of information” to make effective decisions.

However, s24(8) expressly states that breach of the LCCP does not, by itself, give rise to civil liability. Breach may be relevant evidence of negligence, but it does not automatically create a cause of action.

AML (Anti-Money Laundering) and “source of wealth” checks

AML checks are regulatory requirements designed to detect and prevent the use of gambling platforms for money laundering or terrorist financing.
“Source of wealth” enquiries require customers to demonstrate how they are funding their gambling – typically through income statements, bank records, or evidence of assets.

In practice, AML and social responsibility concerns can overlap. High and/or unusual spend patterns will often trigger both AML and safer gambling reviews. In Gibson’s case, AML checks were the main formal mechanism through which Betfair explored his financial position and obtained comfort as to affordability.

Void contracts, unenforceability and unjust enrichment

A void contract is treated in law as if it never existed; neither party can sue to enforce it.
If a contract is void, money or benefits transferred under it may be recoverable via a claim in unjust enrichment (a restitutionary cause of action aiming to reverse unjust gains).
Unenforceable contracts (for example, for certain gaming debts before 2005) cannot be sued upon, even if they are not technically void; again, restitution may sometimes arise depending on the circumstances.

Mr Gibson’s argument was that s33 rendered the gambling contracts void due to Betfair’s alleged breach of licence conditions, thereby enabling him to recover his losses in unjust enrichment. The Court decisively rejected that contention.

Obiter dicta and binding precedent

Ratio decidendi is the legal principle that is essential to the decision and is binding on lower courts.
Obiter dicta are comments or reasoning not strictly necessary to dispose of the case; they are not binding but may be highly persuasive.

In Gibson:

The holding that Betfair lacked actual or constructive knowledge and did not breach the LCCP is part of the ratio.
The discussion of s33 and contract invalidity, although “pure law” and fully reasoned, is formally obiter because the appeal could be dismissed on Ground 1 alone. Nonetheless, given the court’s detailed analysis, it is likely to carry significant persuasive weight in future cases.
The Court deliberately refrained from pronouncing on duty of care and causation, avoiding unnecessary obiter dicta in that area.

Impact and Future Significance

For gambling operators

The decision has several important implications for licensed gambling operators:

No automatic civil voiding for LCCP breach:
- Even serious or systematic failures to comply with social responsibility requirements do not, without more, render bets void or give rise to restitutionary claims.
- The primary consequences of non-compliance remain regulatory – fines, licence conditions, suspension, or revocation – not private law claims for reimbursement of losses.
Factual knowledge remains crucial in negligence claims:
- To establish negligence based on failure to protect problem gamblers, claimants must prove that the operator knew or ought to have known of the problem.
- Operators who can demonstrate that they:
  - performed AML and “source of wealth” checks diligently;
  - relied on apparently credible information about customer wealth;
  - had functioning social responsibility policies; and
  - engaged with customers (e.g. via safer gambling messages),
  will be in a strong position to resist allegations that they should have identified undeclared gambling disorders, particularly where the customer actively concealed or misrepresented their position.
Data analysis not, by itself, determinative (at the relevant time):
- At least for the 2009–2019 period, the Court accepted that it was “very difficult” to identify problem gamblers purely from transactional data.
- Operators remain expected to use data as part of their monitoring, but the Court recognised the limits of what could realistically be inferred from high‑stakes or high‑frequency play, especially when a customer appears wealthy and self‑certifies comfort with losses.

For problem gamblers and consumer litigation

From the consumer’s perspective, the case sends a mixed but clear message:

Regulatory breach ≠ automatic compensation:
- Even if an operator has, in fact, fallen short of LCCP standards, that alone will not entitle a gambler to reclaim past losses in court.
- Sanctions are primarily within the Gambling Commission’s domain, not private actions.
High bar for negligence claims:
- Claimants must prove that the operator knew or should have known of their vulnerability or disorder, on the facts.
- Where the gambler:
  - appears financially able to afford the gambling;
  - receives and responds to responsible gambling messages without expressing concern; and
  - conceals or minimises their problem,
  the chances of succeeding on negligence are significantly reduced.
Duty of care remains an open question:
- The Court pointedly left undecided whether, as a matter of principle, gambling operators owe a common law duty of care to protect customers from self‑inflicted losses due to addiction or vulnerability.
- Future test cases, perhaps involving clearer indicators of vulnerability or more egregious operator conduct, will be needed to resolve this point at appellate level.

For regulators and policy-makers

The decision also has systemic implications:

Sharp separation between regulation and private law:
- The Court treats the Gambling Act’s licensing and enforcement regime as intended primarily for public law and regulatory control, not as a direct generator of private claims.
- This reinforces the central role of the Gambling Commission in policing social responsibility obligations.
Focus on targeted statutory tools:
- The reliance on s336 underlines that Parliament chose a specific mechanism for voiding “unfair” bets in defined circumstances, leaving the Commission to decide whether to deploy that tool.
- Policy‑makers wishing to create private rights of redress for problem gamblers would likely need explicit legislation, rather than relying on broad construction of existing provisions.

Conclusion

Gibson v TSE Malta LP (t/a Betfair) provides two key contributions to modern gambling law:

Operational knowledge and LCCP breach:
- The Court affirms a robustly evidence‑based approach to determining when a gambling operator can be said to know, or ought to know, that a customer is a problem gambler.
- Where an apparently wealthy customer repeatedly reassures an operator, passes AML and source‑of‑wealth checks, and actively conceals or misrepresents problems, the operator will not lightly be found to have constructive knowledge of a gambling disorder.
- LCCP provisions, while important for regulatory purposes and potentially relevant to negligence analysis, do not of themselves create civil liability or establish breach without a clear factual basis.
Statutory illegality and the status of gambling contracts:
- On a careful reading of the Gambling Act 2005, and drawing on Okedina and Phoenix, the Court concludes that s33 does not impliedly render gambling contracts void merely because the operator is in breach of licensing conditions or the LCCP.
- The Act penalises operators and arms the Gambling Commission with regulatory powers (including, in some cases, the power to void unfair bets under s336) but generally leaves gambling contracts enforceable.
- Losing gamblers cannot invoke s33 as a universal restitutionary escape route; nor should successful gamblers be deprived of winnings due to an operator’s licensing breach.

Unresolved, and consciously left for a future case, is the broader and more controversial question of whether gambling operators owe a common law duty of care to problem gamblers, and what the content and scope of any such duty might be. In that sense, Gibson is a significant but not final chapter in the developing interface between consumer protection, regulatory obligations and private law remedies in the gambling sector.