Allan (J. M.) (Merchandising) Ltd v Cloke

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DAVIES
Judgment Date05 Mar 1963
Judgment citation (vLex)[1963] EWCA Civ J0305-4

[1963] EWCA Civ J0305-4

In The Supreme Court of Judicature

Court of Appeal

From his Honour Judge Herbert, M.C., Q.C.

Westminster County Court

Before

The Mster of The Rolls

(Lord Denning)

Lord Justice Danckwerts and

Lord Justice Davies

J. M. Allan (Merchandising) Limited
Plaintiff Appellants
and
George Henry Cloke
John Henry William Whitehead
Defendant Respondents

Mr Leonard Lewis (instructed by Mr Burnett L. Elman) appeared as Counsel for the Appellants.

Mr Michael Hoare (instructed by Messrs Tearle & Herbert Jones) appeared as Counsel for the Respondents.

1

THE MASTER OF THE ROLLS: Mr Cloke and Mr Whitehead are gentlemen is interested in the management of a proprietary club, the Oakwell Park Country Club, J.M. Allan (Merchandising) Ltd. are interested in the supply of roulette tables. Their trade name we are told, is the Casino Supply Co. On the 1st June, 1962, the plaintiffs let to the defendants a roulette table, a roulette wheel and a croupiers rake for one year from the 1st June, 1962, at a weekly rent of £5 payable quarterly in advance. The first payment of £65 was made on the 1st June, 19 62, but the next payment due on the 31st August, 1962, was not made. The defendants said that the agreement was illegal. The plaintiffs now sue for that amount.

2

The facts are simple. In order to induce this contract of letting, the plaintiffs prepared a booklet of rules of a game which they called "Roulette royals: Casino's most exciting game", which is on the general pattern of the game of roulette but with variations so as to ensure that all the winnings go to the players and so part of them to the bank. The outstanding rule on which this case depends is the first rule: "A small charge of 6d. is payable on any bet, regardless of the stake, and is collected before hte croupier spins the wheel". On the back of the card it says: "Roulette-royale is a game designed to be conducted in accordance with the provisions of the Betting and Gaming Act, 1960". The plaintiffs clearly represented to the defendants that theycould use this roulette table in accordance with those rules charging 6d. a time before every spin of the wheel and thereby make substantial profits and pay the rental for the table. The judge said that "the express purpose between the parties for which the tble was intended was this game of roulette royale and not for any other game palyed in accordance with different rules".

3

Accepting, as I do, the view that neither of these parties knew this game was unlawful, the question is: Is the game of roulette royale, played at a club like this in accordancewith the rules, unlawful or not? That depends on the proper interpretation of the Betting and Gaming Act, 1960. Under that Act it is quite clear that at a bona fide club, the members are entitled to indulge in gaming activities, on these conditions: First, the chances in the game must be equally favourable to all the players: second, all the winnings must be distributed amongst those playing, and furthermore (and this is the condition that comes into operation in this case) apart from any annual subscription for membership of the club "the only other payment required for a person to take part in the gaming" must be "a fixed sum of money determined before the gaming began". Those are the material words in Section 16(7)(b) of the 1960 Act. The question in this case is whether the small charge of 6d. referred to in the rules is a "payment required for a person to take part in the gaming" which is "a fixed sum of money determined before the gaming began".

4

It has been argued before us that gaming begins on every occasion when the wheel is spun and therefore it is perfectly legitimate to have 6d. paid to the organisation before every spin of the wheel. This is a point which was left open by the Divisional Court in the recent case of Quinn v. Nackinnon, 1963, 2 Weekly Law Reports, p. 391. I am quite clear that the sum of 6d. before every spin of the wheel is not a sum of money determined before the gaming begins. In my judgment the gaming begins when the players come into the room and sit down to play. The word "gaming" is defined in Section 28 of the Act. it is "the playing of a game of chance for winnings in money or moneysworth". The emphasis in this connetation is "the playing": it is when the playing begins, when the session begins, that the sum must be determined. The sum is, so to speak, the entrance money which must be fixed and pre-detormined before the players take part in the game. I find myself in agreement with the opinion which the magistrate expressed in Quinn v. Nackinnon that"the payment envisaged by Section 16(7)(b) was a single payment similar to table money for bridge which covered all the rubbers played at one session by a player, it being left to the player's choice how long he remains at the table". In order to be lawful, the sum paid by the members of the club, who take part in this game of roulette royale, must be a pre-determined sum, determined before the playing at that session starts. It must be a sure, not necessarily paid, but at least determined at that time. It is not sufficient for it to be determined before each spin of the wheel. In...

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