Richard Spearman QC is acting for Phil Ivey, described as “arguably the best poker player in the world”, who has been granted permission to appeal by the Supreme Court against the rejection by Mitting J and the Court of Appeal of his claim for winnings of just over £7.7m derived from playing Baccarat at Crockfords Club on 20 and 21 August 2012.
It is not in issue that there was an implied term of the material gaming contract that the player must not cheat, or that Mr Ivey used a technique known as “edge-sorting”. Mr Ivey contends that this is a legitimate gambling technique, whereas Crockfords contends that it amounts to cheating. Mitting J held that Mr Ivey had neither acted dishonestly nor practised any material deception on Crockfords, but applying what he described as “the civil concept of cheating” nevertheless held that Mr Ivey had cheated and dismissed his claim.
As part of its case, Crockfords relied on s42 of the Gambling Act 2005, which criminalises cheating, but Mitting J considered that the requirements of s42 are not clear, and that it was unnecessary for him to consider it. The Court of Appeal (Arden and Tomlinson LJJ, Sharp LJ dissenting) upheld that decision and dismissed Mr Ivey’s appeal, but for reasons which differed not only from those given by Mitting J but also from one another.
Both Arden LJ and Sharp LJ analysed the meaning of the word cheating by reference to s42 and arrived at conclusions as to the meaning of cheating within s42 which, as they held, applied equally to the implied term of the contract between Mr Ivey and Crockfords. However, Arden LJ held that for purposes of s42 an allegation of cheating does not require dishonesty, whereas Sharp LJ held that cheating does require proof of dishonesty and would have allowed the appeal on the basis that Mitting J found that Mr Ivey was not dishonest.
Tomlinson LJ followed Mitting J in reasoning that the case could be decided without reference to s42, but held that Mr Ivey had cheated because, contrary to the finding of Mitting J, Mr Ivey had, in fact, practised deception (albeit a form of deception which was not dishonest). The decision of the Court of Appeal is the only reported decision on the interpretation of s42 and, in particular, as to the mental element of the offence. On that issue Arden LJ and Sharp LJ were divided, and Tomlinson LJ expressed no view, although both Arden LJ and Sharp LJ agreed that if dishonesty is a necessary element of cheating then the relevant test is that established in R v Ghosh  QB 1053.
It seems likely that this will be the central issue on the appeal to the Supreme Court, although that Court may also be called upon to decide whether there are separate civil and criminal concepts of cheating, and, if dishonesty is an essential requirement of cheating, whether different tests of dishonesty apply in those different contexts.
To read the judgment from the Court of Appeal, please click here.
To read the judgment from the High Court, please click here.
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