Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
The Supreme Court in Ivey v Genting Casinos (UK) Ltd  UKSC 67 has taken the opportunity to restate the test for dishonesty in criminal and civil proceedings. In this case, the Supreme Court considered an appeal arising out of a claim against a casino in respect of what the appellant (Ivey) alleged were his Baccarat winnings (£7.7m) that the casino had declined to pay.
The appellant had not denied using a technique called edge-sorting and argued that it was reversing the edge that the casino had to play at odds which favour the player in lawful ways. He denied cheating. The judge at first instance accepted
that the appellant was genuinely convinced that what he had done was not cheating, but went on to find that, nevertheless, the appellant had cheated at the game and held that there had been a breach of the implied term of the contract between him
and the casino accordingly.
The majority of the Court of Appeal had upheld this judgment but, in a dissenting opinion, Sharp LJ indicated that he would have allowed the appeal on the basis that what the appellant had done could not be cheating unless the statutory offence had been
committed and, as a necessary ingredient, dishonesty, as defined in the seminal case of R v Ghosh  2 All ER 689, was demonstrated.
The case came before the Supreme Court and offered it a long-awaited chance to challenge Ghosh. In deciding the substantive appeal, the Supreme Court held that there was no reason to doubt that the term ‘cheating’, in the context of
gaming / gambling activities, carried the same meaning when considering an implied term not to cheat in a casino contract and when considering the statutory offence of cheating under the Gambling Act 2005, s 42. It went on to find that, although most
cheating in the gaming/gambling context will involve something which the ordinary person would describe as dishonest, this is not invariably the case and that, in ordinary language, cheating need not involve deception (as GA 2005, s 42(3) recognises).
The Supreme Court could have stopped there but it did not. It went on to consider the concept of dishonesty as an element of a criminal offence. In doing so it took the opportunity to tear up the two-pronged test established in Ghosh and replace
it with the test established by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan  UKPC 4 (24 May 1995) and by Lord Hoffmann in Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37.
Although strictly obiter, Lord Hughes set out the new test at para :
When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often
in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief
as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate
that what he has done is, by those standards, dishonest.’
From now on, the same test for dishonesty applies in the context of both civil and criminal cases and the only difference in the application of this test as between these two legal worlds is the standard of proof.
Access this article and thousands of others like it free by subscribing to our blog.
Read full article
Already a subscriber? Login
0330 161 1234