The correct test was that at civil law (as set out in Royal Brunei Airlines Sdn Bhd v Tan 2 AC 378). The five Justices unanimously held that R v Ghosh was an incorrect interpretation of the law. The new correct test for dishonesty – removing the subjective element However, no doubt seeing a generational opportunity to refine the criminal test for dishonesty, the Supreme Court went much further. On that basis alone, the Supreme Court found that Mr Ivey had indeed cheated and was not entitled to his winnings. It held that cheating was a clearly understood concept which did not need to be conflated with dishonesty. The Supreme Court declined to define cheating precisely. Mr Ivey maintained that he genuinely had not believed edge sorting was dishonest by ordinary standards. The accused must have realised their conduct was dishonest by those standards (a subjective limb). − the conduct in question must be dishonest by the standards of ordinary, reasonable and honest individuals (an objective limb) and To be satisfied of dishonesty, the jury must apply the two-stage test famously set out in R v Ghosh QB 1053:

Dishonesty has long been recognised as a jury concept of fact.

Mr Ivey argued that cheating necessarily involves dishonesty. The original Ghosh criminal test for dishonesty For this reason, the criminal law test for dishonesty came to be considered in a civil trial. The meaning of cheating was taken to be the same under the implied term as for the criminal offence of cheating under s42 Gambling Act 2005. The case therefore centred on whether Mr Ivey’s actions, given his mental state, could amount to cheating. He viewed it as a perfectly legitimate technique and was open about having done so.

There was no dispute that Mr Ivey had used edge sorting to gain an advantage against the casino. It was common ground between the parties that the contract for betting between Mr Ivey and Genting contained an implied term that neither party would cheat.

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