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Daulia Ltd v Four Millbank Nominees Ltd; Court of Appeal (Civil Division) [1977] EWCA Civ 5

Please determine the obiter dictum / dicta and the ratio decidendi of the following part of the judgment of Goff LJ: “Whilst I think the true view of a unilateral contract must in general be that the offeror is entitled to require full performance of the condition which he has imposed and short of that he is not bound, that must be subject to one important qualification, which stems from the fact that there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems to me must arise as soon as the offeree starts to perform. Until then the offeror can revoke the whole thing, but once the offeree has embarked on performance it is too late for the offeror to revoke his offer.”

Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 This appeal arises out of a case where a professional gambler, Mr Ivey, sues a casino, Crockfords, to recover his winnings at Punto Banco. Mr Ivey claims for his winnings in circumstances where Crockfords refused to pay out because it believed Mr Ivey cheated. The appeal raises questions about the meaning of the concept of cheating at gambling and the relevance of dishonesty to that concept. Punto Banco is a variant of Baccarat and is not normally a game of skill. The different odds applied to certain bets mean that the casino enjoys a small advantage, taken over all the play. In Punto Banco at Crockfords it was 1.24% if the player wins and 1.06% if the banker wins. Edge sorting is possible when the manufacturing process of playing cards causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other. It is possible for a sharp-eyed person sitting close to a card shoe (the holder that dispenses the playing cards) to see which long edge it is. This information becomes useful only if things can be arranged so that the cards which the gambler is most interested in are all presented with one long edge facing the table, whilst all the less interesting cards present the other long edge. Then the gambler knows which kind of card is next out of the shoe. Using edge sorting to identify high value cards in Punto Banco will give the player a long-term edge of about 6.5% over the house if played perfectly accurately. On 20 and 21 August 2012, Mr Ivey and his associate, Ms Sun, played Punto Banco at Crockfords. Mr Ivey openly admits to the use of edge sorting during this game. Mr Ivey asked the senior croupier that the same shoe of cards be re-used if he indicated to him that he won. Ms Sun (affecting superstition) asked the croupier to turn the cards in a particular manner if she indicated they were “good” or “not good”. The croupier had no idea of the significance of what she was being asked to do. In consequence, the long edge of the “not good” cards were oriented in a different way from the long edge of the “good” cards. This procedure was followed for each game of Punto Banco until the shoe was finished. Mr Ivey then indicated that he had won with that shoe and so the cards were reshuffled. The use of a machine shuffler ensured that the cards were shuffled without rotating any of the cards. Mr Ivey could now identify high value cards and his betting accuracy increased sharply. Mr Ivey’s total winnings over the two days was £7.7m.

Nine days after play, Crockfords told Mr Ivey they would not pay his winnings because the game had been compromised. The High Court held that Mr Ivey’s use of edge sorting was cheating. The Court of Appeal upheld this finding. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the judgment, with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agree. Are the following parts obiter dictum / dicta or ratio? “62. Dishonesty is by no means confined to the criminal law. Civil actions may also frequently raise the question whether an action was honest or dishonest. The liability of an accessory to a breach of trust is, for example, not strict, as the liability of the trustee is, but (absent an exoneration clause) is fault-based. Negligence is not sufficient. Nothing less than dishonest assistance will suffice. Successive cases at the highest level have decided that the test of dishonesty is objective. After some hesitation in Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164, the law is settled on the objective test set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378: see Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476, Abou-Rahmah v Abacha [2006] EWCA Civ 1492; [2007] Bus LR 220; [2007] 1 Lloyd’s Rep 115 and Starglade Properties Ltd v Nash [2010] EWCA Civ 1314; [2011] Lloyd’s Rep FC 102. The test now clearly established was explained thus in Barlow Clowes by Lord Hoffmann, at pp 14791480, who had been a party also to Twinsectra: “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.” 63. Although the House of Lords and Privy Council were careful in these cases to confine their decisions to civil cases, there can be no logical or principled basis for the meaning of dishonesty (as distinct from the standards of proof by which it must be established) to differ according to whether it arises in a civil action or a criminal prosecution. Dishonesty is a simple, if occasionally imprecise, English word. It would be an affront to the law if its meaning differed according to the kind of proceedings in which it arose. It is easy enough to envisage cases where precisely the same behaviour, by the same person, falls to be examined in both kinds of proceeding. In Starglade Properties Leveson LJ drew attention to the difference of test as between civil cases and criminal cases, and rightly held that it demanded consideration when the opportunity arose. Such an opportunity is unlikely to occur in a criminal case whilst Ghosh remains binding on trial judges throughout the country. Although in R v Cornelius [2012] EWCA Crim 500 the opportunity might have arisen before the Court of Appeal, Criminal Division, it did not do so because there had been in that case no false representation of which the honesty needed to be examined; moreover, there is some doubt about the freedom of that court to depart from Ghosh in the absence of a decision from this court.” “74. These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes: see para 62 above. 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.”

Holwell Securities Ltd. v Hughes Court of Appeal, 1973 [1974] 1 W.L.R. 155 Fact: In 19 October 1971 the defendant granted the plaintiffs a six months' option to purchase certain property. The option was to be exercised “by notice in writing to” the defendant, and on April 14, 1972, the plaintiffs' solicitors sent a written notice exercising the option by ordinary post to the defendant. The notice never reached the defendant or his address. Held: the option had not been validly exercised because actual communication was required. Please determine the obiter dicta and the ratio decidendi of the following part of the judgment of Lawton LJ in Holwell “Does the [POSTAL] rule apply in all cases where one party makes an offer which both he and the person with whom he was dealing must have expected the post to be used as a means of accepting it? In my judgment, it does not. First, [POSTAL RULE] does not apply when the express terms of the offer specify that the acceptance must reach the offeror. The public nowadays are familiar with this exception to the general rule through their handling of football pool coupons. Secondly, it probably does not operate if its application would produce manifest inconvenience and absurdity.” [per Lawton LJ at 161] Regina v Kelly and Regina v Lindsay Court of Appeal; [1999] Q.B. 621 K was found guilty of the theft of approximately 35 human body parts from the Royal College of Surgeons after the trial judge, following the Australian case of Doodeward v Spence 6 C.L.R. 406 , ruled that there was property in a human body, or part of a human body, when it was altered in a manner designed to preserve it for medical or scientific examination. K appealed against conviction, contending that as, under the common law, there was no property in a corpse, there was no property in human body parts and they could not therefore be stolen, that the Royal College of Surgeons was not in lawful possession of the body parts and that the jury had not therefore been properly directed on the question of dishonesty. Held, dismissing the appeal, that, while it was a long established principle of common law that there was no property in a corpse, the exception to that rule expressed in Doodeward v Spence was valid. Where a corpse, or part of a corpse, had undergone a process or application of human skill designed to preserve it for medical or scientific examination, it acquired a value and became property. The trial judge's summing up on the issue of possession could not be faulted since it was enough to show that the Royal College of Surgeons was in possession of the body parts and it was not necessary to show that the possession was lawful.

Please determine the obiter dicta and the ratio decidendi of the following part of the judgment of Rose L.J. in Regina and Lindsay Court of Appeal; [1999] Q.B. 621 at 631: “To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes: see Doodeward v. Spence, 6 C.L.R. 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v. North Tyneside Health Authority [1997] 1 W.L.R. 596, 601 where this proposition is not dissented from and appears, in the judgment of this court, to have been accepted by Peter Gibson L.J.; otherwise, his analysis of the facts of Dobson's case, which appears at that page in the judgment, would have been, as it seems to us, otiose. Accordingly the trial judge was correct to rule as he did. Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purposes of section 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. This may be so if, for example, they are intended for use in an organ transplant operation, for the extraction of DNA or, for that matter, as an exhibit in a trial. It is to be noted that in Dobson's case, there was no legal or other requirement for the brain, which was then the subject of litigation, to be preserved: see the judgment of Peter Gibson L.J., at p. 601.”...