Ivey Supreme Court ruling will have a major influence on future cases, says Joelson

Simon Wallis, a specialist in gambling and litigation at leading London law firm Joelson has said that a Supreme Court ruling against international poker play Phil Ivey provides useful guidance to casinos and gamblers alike.

The 40-year-old American gambler thought he had won more than £7.7 million in a game of Punto Banco – a variation of Baccarat – at Crockfords Club in Mayfair in 2012.

However, he later found that the club would not pay out his winnings, as it believed he had ‘cheated’ using a technique known as ‘edge sorting’, which relies on a player using small differences in the pattern on the back of the playing cards to increase their chance of winning.

Having denied that the controversial technique he had used was an ‘illegitimate strategy’, Mr Ivey then took the matter to the High Court and Court of Appeal, which both dismissed his case.

This decision has now been unanimously upheld by five justices in the Supreme Court, who agreed that the technique was indeed illegitimate and a form of cheating.

During the case, the justices heard that although Mr Ivey did not personally touch any cards while at the table, his fellow gambler Cheung Yin Sun had asked the croupier to rotate cards due to ‘superstition’, providing the pair with an advantage.

This rotation allowed Ivey to identify high value cards giving him an advantage of up to 6.5 per cent in his favour, far higher than the normal rate of around 1.2 per cent in the house’s favour.

Mr Ivey argued that his strategy was legitimate and that the casino had simply failed to take proper precautions to protect itself, but the court said that that the technique had ‘interfered’ with the process by which the game of Punto Banco was traditionally played.

Simon, an Associate within Joelson’s Litigation and Dispute Resolution team, said that the Court’s findings undoubtedly have  ramifications for gamblers..

He said: “Two key points for the Supreme Court were, one: Punto Banco is a game of pure chance and, two: Mr Ivey took active steps to interfere with the game. It is, therefore, clear that taking physical steps to interfere with games of pure chance, or convincing  a member of casino staff to physically take such steps, will likely be regarded by courts as cheating.

“It remains to be seen whether the courts would be as ready to regard active steps to interfere with the odds of a game that is not a game of pure chance as cheating.

“It is, however, clear that it will be no defence for an individual to argue that they did not honestly believe their conduct to amount to cheating”

Simon welcomed the decision and said that the “guidance from the court on what conduct amounts to cheating in the context of gambling, and the relevance of dishonesty to that test, is helpful”

He added: “Whilst Mr Ivey and Crockfords both had compelling arguments, the decision does accord with the case-law and the most logical interpretation of Section 42 of the Gambling Act, which states that cheating may include ‘interference in connection with the process by which gambling is conducted’”.

He added: “Given the game of Punto Banco is, indisputably, offered to customers on the basis that the house has an edge, it is fair to say that Mr Ivey’s conduct, which altered the odds of the game such that he himself had an edge of up to 6.5%, did interfere with the ‘process’ of the game, and amount to cheating”.

“It is also of note that Mr Ivey’s conduct went one step further than, for example, card-counting, in that he took active steps to interfere with the way in which the game was played”.

“Anyone following the case may wish to consider the extent to which the courts were influenced by the fact Mr Ivey’s actions affected the odds so drastically. If the odds had shifted by a significantly lesser degree – perhaps such that the house still had an edge – would the courts have been prepared to find against Mr Ivey?”

Following the ruling, Simon is encouraging casinos to review their processes to ensure they don’t leave themselves open to similar situations.

“It is important for casinos to make sure their staff are properly trained (i.e. aware of what steps would or would not affect the odds of a particular game) and on heightened alert when an advantage player, such as Mr Ivey, is gambling,” he said.

“Casinos should also ensure their staff are aware that, as was the case here, advantage players may join forces with associates to seek to affect the odds of the game”.

Further, he added: “Casinos should be alive to edge sorting and, if they have cause for concern, either use cards which do not have patterns on the back, ensure that dealers turn a significant portion of cards when shuffling, or ensure that the base of the shoe is covered such that the leading edge of a card is not visible to customers before bets are placed”.

About Simon Wallis

Simon joined Joelson from a Silver Circle law firm. He has experience acting for a diverse mix of clients – from entrepreneurs and SMEs to FTSE 100 companies – and on a wide range of disputes – from smaller claims to £100m+ big-ticket litigation. He has litigated in County Courts, the Upper Tribunal, the High Court and the Court of Appeal.

 

Before practising law, Simon made a living as a professional poker player. He now specialises in dispute resolution, with a particular focus on the gambling sector.

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