Summary

In the first case since the coming into force of the Gambling Act 2005, an English court had to determine whether the conduct of a party to a gambling contract amounted to cheating for the purposes of the civil law. The use of a croupier as an innocent agent in circumstances where she had not realised the consequences of her actions constituted cheating.

Facts

The claimant (C), a professional gambler, sued the defendant casino operator (G) for his winnings of £7.7 million.

In a game of chance, Punto Banco, C used the technique of "edge-sorting", which relied on noting tiny differences in the cards. He made a great play of being superstitious, by which he persuaded the croupier to use the same pack of cards and to turn "lucky" cards through 180 degrees. That increased the odds in his favour above the casino's house edge. Following examination of visual recordings of the play, G refused to pay and refunded C's deposited stake of £1 million.

G denied liability on the basis that (1) no game of Punto Banco had been played because the rules required the dealt cards to be random, whereas C knew what they were likely to be; (2) there was an implied term that C would not cheat and that term had been broken; (3) C had committed the criminal offence of cheating under the Gambling Act 2005 s.42 by interfering with the game, or deceiving the croupier, and so was disentitled to found his claim on his own criminal conduct. C admitted the implied term, but denied cheating or committing a criminal offence, asserting that what he had done was lawful and legitimate gamesmanship and did not amount to deception so as to vitiate the gaming contract.

Held

(1) The game had been played according to its rules, the cards were dealt in the prescribed sequence and bets were paid at the prescribed odds. All that had happened was that by reason of the advantage gained by C the odds had changed in his favour. Even if C's conduct had amounted to cheating, he had still been playing Punto Banco (see para.34 of judgment). (2) It was common ground that if C had cheated, he was not entitled to his winnings. Since the Gaming Act 1845 s.18 had provided that all contracts or agreements by way of gaming and wagering were null and void, there was a dearth of case law on cheating at common law. Section 18 had been repealed by the Gambling Act 2005 Pt 17 and the instant case was the first in which an English court had to determine whether the conduct of a party to a gaming contract amounted to cheating for the purposes of the civil law. C had persuaded the croupier to turn some of the cards so that he knew they were likely to be winning cards, when he knew that she had not realised the effect and that, if she had, she would immediately have stopped play. The fundamental question for the court was whether such conduct amounted to cheating. The criminal offence was defined by s.42 of the 2005 Act, but it was unclear as to whether Ghosh dishonesty was a necessary element. The fact that C and his expert were convinced that he had not cheated was immaterial. C had given himself an advantage by using the croupier as his innocent agent in circumstances where neither she, nor her superiors, had realised the consequences of her actions. That was cheating for the purposes of the civil law (paras 36, 40, 49-51). (3) Given that result, it was unnecessary to determine G's third defence (para.52).

Claim dismissed