O'Brien v MGN Ltd

The defendant put scratchcards with its newspapers-- Daily Mirror, Sunday Mirror and The People. If the card came up with money, players called a premium rate number to see if the amount matched a mystery bonus cash amount. Mr O’Brien on 3 July 1995 got two sums of £50,000. 1472 other people did as well, because MGN had distributed too many by mistake. MGN had only intended to have one prize of £50,000. MGN held a draw among the 1472. MGN pointed to "Rule 5", which said there would be a draw where more prizes were claimed than available. Rule 5, however, although published in some newspapers, was not to be found in the 3 July 1995 edition. This only said ‘Normal Mirror Group rules apply.’ Mr O’Brien had seen that. The question was whether Rule 5 was incorporated into the scratchcard agreement.

Hale LJ held that Rule 5 was incorporated. She noted that Rule 5 was no big burden on the claimant like in Interfoto nor excluding liability for injury like Thornton, but simply deprived a windfall.[1] She also noted that in the test for incorporation, the words ‘onerous or unusual’ are not ‘terms of art’.[2] Potter LJ concurred with Hale LJ.

Sir Anthony Evans was doubtful that judge’s reasons were right and thought the rule was onerous enough to require more notice.

• Parker v South Eastern Railway Co (1877) 2 CPD 416
• Chapelton v Barry UDC [1940] 1 KB 532
• Olley v Marlborough Court Ltd [1949] 1 KB 532
• J Spurling Ltd v Bradshaw [1956] 1 WLR 461
• Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163.