Ashton v TSE Malta: High Court rejects claim that Betfair owed a duty mirroring gambling regulation

The High Court has dismissed a negligence claim against the operator of the Betfair exchange brought by the widow of a customer who took his own life in 2021. The court held that a gambling company's duty of care to prevent psychiatric injury is narrow and does not incorporate the Gambling Commission's regulatory standards.

In Ashton v TSE Malta LP [2026] EWHC 2935 (KB), Swift J rejected the claim brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. The claimants alleged that the defendant's failure to act on Mr Ashton's heavy gambling in early 2021 exacerbated a gambling disorder.

The duty contended for

By closing, the claimants framed the duty as one to identify customers whose gambling showed indicators of impending harm to health, and to take preventative action in line with paragraph 3.4.1 of the Gambling Commission's social responsibility code and its customer interaction guidance. They relied on the employer stress cases, particularly Hatton v Sutherland [2002] ICR 613.

Swift J found that duty materially the same as the broad duty rejected in Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch). Applying the incremental approach in Robinson v Chief Constable of West Yorkshire, he identified material differences from employment. A customer has no obligation to gamble, and holding transaction data does not create a relationship equivalent to employment. Personal autonomy must therefore carry particular weight, and it includes the freedom to act unwisely.

Regulation and the common law

The judge attached significance to section 24(8) of the Gambling Act 2005, which provides that breach of the Commission's code does not of itself give rise to civil liability. Adopting regulatory standards as the measure of a tortious duty would tend to usurp the regulator's role. The code covers "harms associated with gambling" well beyond recognised psychiatric illness, the guidance is open-textured, and issues such as affordability checks involve policy judgements the Commission is still developing.

A narrow duty

Swift J held that the duty is limited to acting to prevent gambling disorder in its severe form where that is foreseeable. Foreseeability turns on the operator's knowledge, and transaction data alone will not generally suffice. A risk of severe disorder will be plain enough to require action where the operator is on notice of a diagnosis of gambling disorder of any severity, or where the customer's behaviour is so extreme as to show that their gambling is wholly outside their control, the test adopted from Calvert. In those circumstances, the required response is to stop providing gambling services. A closer relationship, such as the managed VIP account in Gibson v TSE Malta [2024] EWHC 2900 (Comm), might affect what an operator ought to know.

No disorder established

The claim failed on the facts, as Mr Ashton had never been diagnosed. The claimants' psychiatric expert concluded after his death that he met eight of the nine DSM-5 criteria. The defendant's expert said a diagnosis could not safely be made from betting records, because the criteria depend largely on subjective information. Swift J preferred the defendant's expert and found the evidence insufficient to show that Mr Ashton had any form of gambling disorder. The duty therefore never arose, and the court did not need to decide breach, causation or contributory fault.

A coroner's prevention of future deaths report had raised concerns about the defendant's player protection tools, which the Gambling Commission said it would consider further.

Jeremy Hyam KC appeared for the claimants, instructed by Leigh Day. Jonathan Hough KC appeared for the defendant, instructed by Keystone Law.