Laws of Eve | Who colt di game?

According to the original Jamaican Dancehall Dictionary, you 'colt di game' if you disturb the natural order of things. For the serious Jamaican domino player, 'colting' the game is one of the most serious offences you could commit. So it is no wonder that the winnings from a high-stakes game of chance resulted in a detailed judgment from the UK Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.

Ivey is a professional gambler who has won 10 World Series of poker bracelets. He and Ms Sun played a card game called Punta Banco (James Bond's game) at the Crockfords casino on August 20 and 21, 2012. Their total winnings amounted to £7.7 million, but they were unable to collect the money, because Crockfords refused to pay on the grounds that the game had been compromised.

Ivey sued in civil court to recover his winnings, and he lost at first instance, in the court of appeal, finally, in the Supreme Court. Interestingly, Ivey's evidence was that he and Ms Sun engaged in a very elaborate and carefully orchestrated plan to increase their chances of winning through 'edge-sorting'. This process included pretending to be superstitious and deceiving the croupier into rotating the cards with the highest value in a particular way before ensuring that a machine was used to shuffle the deck.

Although it might have been possible for Ivey to be prosecuted under the Gambling Act for cheating, he was not. Instead, in this civil claim to recover his winnings, the ultimate question was whether he had breached the implied term under the common law that no party to the gambling contract will cheat.

To his credit, Ivey frankly admitted that he had engaged in edge-sorting and that he did so believing that what he did was lawful and did not amount to cheating. Instead, he described his efforts as legitimate gamesmanship - an attempt to play at odds that favoured him.

The court was left to determine whether Ivey cheated and to consider whether he had to be dishonest to cheat; particularly in this case where it was accepted that he honestly believed that he was not cheating.

In concluding that Ivey had cheated, the following statements by the court are relevant:

- There was no need to attempt to define cheating, but an example used to define "cheating at gambling" in the Gambling Act proved to be useful. Section 42(3)(a) states, "Without prejudice to the generality of subsection (1), cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with - (a) the process by which gambling is conducted."

- "[I]n ordinary language, cheating need not involve deception, and Section 42(3) recognises this. Section 42(3) does not exhaustively define cheating, but it puts beyond doubt that both deception and interference with the game may amount to it".

- The first step for the court is to determine the player's actual state of mind and honest belief as to whether he was cheating. It is then necessary for the judge to consider whether the player's conduct was dishonest based on the standards of ordinary decent people. It is irrelevant whether Ivey's honest belief was reasonable or whether he accepted that he was dishonest based on ordinary standards.

In the end, "cheating" at gambling need not necessarily involve being particularly deceptive or dishonest, but when you "interfere with the game", you run the risk of committing it.

Fortunately for Ivey, he recovered his £1million stake.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.