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

A player who deliberately interferes with the conduct of a pure game of chance, materially changing the odds while the casino is unaware of the purpose, may be cheating even if the player believes the method legitimate. Advantage-player status and the casino’s ability to protect itself do not create a different standard.

Arden LJ’s leading judgment held that cheating under section 42 of the Gambling Act 2005 need not involve dishonesty. Tomlinson LJ preferred to decide the appeal on common-law contractual and deception grounds. Sharp LJ dissented on the mens rea issue.

Mr Ivey claimed £7.7 million in winnings from playing Punto Banco at Crockfords Club. He admitted using edge-sorting, whereby card-back irregularities enabled high-value cards to be identified after cards had been reoriented at his request.

Mr Justice Mitting found that Mr Ivey was truthful but had cheated, and dismissed the claim under an implied contractual term not to cheat: [2014] EWHC 3394 (QB). The appeal concerned whether cheating required subjective dishonesty, whether advantage-player status affected the analysis, and whether edge-sorting constituted impermissible interference with the game. The respondent’s notice raised alternative dishonesty, deception and illegality grounds.

1. Disposition. The appeal and the respondent’s notice were dismissed.
2. Meaning of the implied term. Arden LJ held that the implied term not to cheat reflected the common-law rule against enforcing unlawful contracts and that its meaning followed section 42 of the Gambling Act 2005. Tomlinson LJ disagreed with that statutory route. He considered that the implied term had an independent common-law content and was not confined to criminal conduct.
3. Cheating. Arden LJ held that section 42 uses an ordinary, open-textured word. Its categories are not closed. Deliberate interference with the process of a game may constitute cheating without proof of dishonesty or an intention to deceive. The court must assess the facts and give adequate reasons. Tomlinson LJ preferred not to decide the criminal mens rea issue, but agreed that the conduct was cheating in its ordinary and natural meaning.
4. Application. Advantage-player status did not create a separate rule. The casino’s agreement to the requests and its ability to protect itself were relevant but not decisive. Punto Banco was a game of pure chance. By causing cards to be reoriented and reused without Crockfords knowing the purpose, Mr Ivey materially altered the odds and obtained asymmetric information. This was physical interference with the conduct of the game, unlike legitimate card-counting based on innate mathematical skill.
5. Additional reasoning. Tomlinson LJ considered that Mr Ivey and Ms Sun had deceived Crockfords’ staff about the purpose of turning the cards. Sharp LJ dissented, holding that dishonesty was an essential ingredient of the criminal offence and that the Ghosh test applied, but she would not disturb the factual findings. The alternative respondent’s notice therefore did not require determination.

1. Court of Appeal (Civil Division): Appeal dismissed and respondent’s notice dismissed.
2. High Court of Justice, Queen’s Bench Division: Mitting J dismissed the claim for recovery of the winnings, holding that edge-sorting amounted to cheating: [2014] EWHC 3394 (QB).