Ivey v Genting Casinos (UK) Ltd (t/a Crockfords)

Supreme Court [2017] UKSC 67, Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes and Lord Thomas, 13 July; 25 October 2017

Fraud - Cheating - Dishonesty - Ghosh test - Supreme Court

The claimant, Mr Ivey is a professional gambler. Over two days in August 2012, while playing at the respondent casino, he deployed a highly specialist technique called edge-sorting which had the effect of greatly improving his chances of winning at Punto Banco, a variant of Baccarat. With the help of another professional gambler, the claimant set up the conditions which enabled him to win using this technique. Over the course of two days, the claimant won approximately £7.7 million. The respondent casino declined to pay, however, taking the view that what he had done amounted to cheating. At first instance, Mitting J found that the claimant gave factually frank and truthful evidence of what he had done. The finding was that he was a professional gambler who described himself as an "advantage player", whose aim is to reverse the house edge and to play at odds which favour him. The judge found that he does so by means that are, in his opinion, lawful and that the claimant was genuinely convinced that what he did was not cheating. Mitting J held that what the claimant did amounted to cheating in both fact and law. A majority of the Court of Appeal agreed. The claimant appealed to the Supreme Court. It was submitted on behalf of the claimant that the test for what constitutes cheating is the same for the implied contractual term between the claimant and the respondent as for the offence in section 42 of the Gambling Act 2005. This requires the claimant to have acted dishonestly. As the judge found that the claimant was truthful when he said that he did not consider what he did to be cheating, he was not dishonest and therefore the second leg of the test established by R v Ghosh [1982] 1 QB 1053; [1982] 3 WLR 110; [1982] 2 All ER 689 was not established. It followed that what was done was not cheating and that the claimant ought to have recovered his winnings.