Ivey v Genting Casinos: A New Test For ‘Dishonesty' Among Professionals?

Last week, the Supreme Court handed down its judgment in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. The colourful facts of the case, involving a professional gambler and an elaborate 'Ocean's 11' type sting, have been widely reported in the national press. However, the judgment also has wider significance for professionals.

The Supreme Court confirmed that the Ghosh test for dishonesty, used in the assessment of both criminal and professional disciplinary proceedings, is no longer the correct test. Instead, the test in Barlow Clowes, already used in civil cases, should be applied universally.

Whilst a welcome clarification, the adoption of the Barlow Clowes standard may mean that professionals may now find themselves at greater risk of findings of dishonesty.

Facts

Phil Ivey is one of the world's top poker players. Over two days in August 2012, he won £7.7 million playing 'Punto Banco' (a form of Baccarat) at Crockford's Casino in Mayfair. He did so using a technique called 'edge sorting'. He, and his associate, Cheung Yin Sun, claimed they were superstitious, and convinced an unsuspecting croupier to rotate the edges of the 'good' playing cards (claiming they were lucky) before they were returned to the deck. This meant that all the 'good' cards were rotated in the same way. Due to minute asymmetries in the printed pattern on the reverse of the cards, Mr Ivey was then able to tell when 'good' cards were dealt in later rounds. This significantly increased his odds of winning.

Mr Ivey admitted that he had used edge sorting, but insisted throughout that it was 'legitimate gamesmanship'. The judge at first instance accepted that Mr Ivey did not believe he was cheating but found that he had in fact cheated and, in so doing, had breached an implied term in his contract with the casino.

On appeal, Ivey contended that cheating inevitably involved dishonesty, which he said could not be established in this case.

Lord Hughes, whose judgment was universally approved by the rest of the Supreme Court, found that Mr Ivey had staged a "carefully planned and executed sting", and that 'edge sorting' did amount to cheating, so the implied term had been breached and Ivey could not reclaim his winnings. Further, he held that dishonesty was not a necessary feature of cheating.

He could have ended his judgment there. However, Lord Hughes took the opportunity to discuss the test for dishonesty in English law more broadly.

The Ghosh and Barlow Clowes tests

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