Trump Card for Genting Casino
It is not often that I would recommend a court judgment as a good read, however parts of Ivey –v- Genting Casinos, reads like a good thriller!
This case is an unusual claim for Mr Ivey’s winnings in a casino, which amounted to £7.7m, but they claimed that he had been cheating and thus refused to pay out.
Mr Ivey is a professional gambler. On this occasion the casino used particular cards where the design printed on the back was not quite centred. Someone looking very closely could see a slight difference between one edge and the other. Ivey’s assistant persuaded the croupier to turn each card one way or the other, “for luck”, before they were put into an automatic shuffling machine and replaced in a shoe for the next round of games. As many gamblers have superstitions the croupier obliged. Casinos are happy to honour these requests as it encourages customers to spend more money. This time however, there was a cunning plan. Mr Ivey had ensured all of the “good” cards would show one way and the “less interesting” cards showed another. Mr Ivey made sure he sat next to the shoe so he could see the difference. Once the cards had been arranged, his betting accuracy increased sharply. Earlier he had placed relatively small bets (by his standards) of up to £75,000. Later, when his luck apparently changed, he increased his bets to the house maximum of £150,000. After two evenings he was “up” by £7.7m.
After these fateful evenings the casino carefully studied CCTV footage, realised what had been done and refused to pay. Mr Ivey sued them in the civil courts.
Interestingly, it was impossible to recover gambling debts in court until as late as 2005. The Gaming Act 2005 allows it in some circumstances, but not if the game was “substantially unfair”. The case came down to the question of whether Mr Ivey was “cheating”.
In court Mr Ivey openly admitted exactly what he had done and the judge ruled that Mr Ivey believed that he had done nothing dishonest. He described himself as an “advantage player” who had cleverly given himself an advantage. His claimed, in effect, that he was merely playing skilfully, just as an experienced poker player might read the faces of his opponents.
His lawyers came up with an ingenious argument which in simplified terms ran as follows:
First, the Gaming Act includes an offence of “cheating” and that word must mean the same thing in both civil and criminal cases. The Supreme Court agreed.
Second, cheating must involve dishonesty. I will return to this.
Third, there was a legal argument based on a long-standing criminal case of R –v- Ghosh, which considered the meaning of “dishonesty”. That case says – A) if ordinary and reasonable people would not consider the defendant’s actions to be dishonest then he is entitled to be acquitted. So far so good. B) that, if the defendant believed that ordinary and reasonable people would consider his actions honest then he should also be acquitted; what matters is what was in the defendant’s head. The court in Ghosh considered the theoretical case of a person who lived abroad, where public transport is free, and then used a bus in this country without paying, in the belief that it was free; that person was not dishonest.
Mr Ivey reasoned that he believed that he was doing nothing dishonest, so the rule in Ghosh means that he was not dishonest, so he was not cheating and therefore entitled to his money.
Mr Ivey lost in the Court of Appeal, on a split decision, and so the case went to the Supreme Court.
The Court asked itself whether cheating must necessarily involve dishonesty. A runner who openly trips an opponent is certainly cheating, but would not normally be described as “dishonest”. On the other hand, bluffing is an accepted part of many card games. A “bluff” is a deliberate act designed to deceive, which may well be described as “dishonest”, but in the context of those games it is not “cheating”.
The Supreme Court concluded that “cheating” need not involve dishonesty. What is and is not “cheating” is a matter of common sense that can be left to the judge or jury as appropriate. Mr Ivey’s argument failed on this point.
It also decided that the Ghosh test was wrong and should be changed. What matters is whether an ordinary, reasonable person, knowing what Mr Ivey knew, would consider that his actions were dishonest. The theoretical bus traveller did not know that he had to pay a fare; it would be different if he knew he had to pay, but “not if I can skilfully dodge the inspector”. Mr Ivey knew that he was supposed to be playing a game of pure chance; he was dishonest.
The rule in Ghosh had the perverse effect that the more warped the defendant’s morals the less likely he was to be convicted. Many a villain will be justified in his own mind. He may think he is Robin Hood, but he is still a thief.
So, Mr Ivey did not recover his money and he failed to change of definition of “dishonesty” in the civil law, but he did give the Supreme Court a chance to close off a loop-hole that morally warped defendants have been using in the criminal law.
Stephen Allen, Partner