Aspinall's Club Ltd v Al-Zayat
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID STEEL,Mr Justice David Steel,MR.JUSTICE TEARE,r. Justice Teare |
| Judgment Date | 03 September 2008 |
| Neutral Citation | [2008] EWHC 2101 (Comm),[2007] EWHC 362 (Comm) |
| Docket Number | Case No: 2006 Folio No. 169,Case No: 2006 FOLIO NO.169 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 03 September 2008 |
[2007] EWHC 362 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr Justice David Steel
Case No: 2006 Folio No. 169
Patrick Goodall (instructed by Beachcroft LLP) for the Claimant
David Lord (instructed by Quastels Avery Midgen) for the Defendant
Hearing date: 26 January 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant is a well known gambling club. The Defendant is a wealthy man with a penchant for gambling who joined the club in October 1994. The scale of both his wealth and his gambling instincts are revealed by the fact that between October 1994 and April 2006, the Defendant visited the Claimant's club on over 600 occasions, purchasing gaming tokens to the value of over £91,000,000 and, in the process, losing over £23,000,000.
The Defendant's biggest loss at the club occurred on 10 March 2000 in the sum of £2,000,000 in one sitting. It is this loss which is at the centre of these proceedings.
The Claimant applies, pursuant to CPR 3.4 and/or CPR 24.2, for summary disposal of the proceedings on the basis that the defence filed by the Defendant discloses no reasonable grounds for defending the claim and/or that he has no realistic prospect of successfully defending the claim. It is not suggested that there is any other compelling reason why the case should be disposed of at a trial.
The background
There is little dispute as regards the facts. However I accept that it is appropriate for the purpose of the present application to assume that, where there is controversy, the Defendant's version of events is accurate. On that basis the surrounding circumstances were as follows: —
a) During the course of the playing session that day the Defendant drew four separate script or house cheques for £500,000 each. They were dated 10 March 2000. They were drawn on a joint account of the Defendant and his wife. The Defendant was duly given gaming tokens to the value of each cheque.
b) On a number of occasions during the playing session, the Defendant requested that the croupier be changed but was told that there was no other croupier available. However, at about 3.30 am, the Defendant discovered there were other croupiers available and became angry. A heated argument ensued with members of the management team of the club.
c) Thereafter, at the request of the Claimant, an undated substitute cheque was brought to the Defendant in the sum of £2,000,000. The Defendant was requested to sign it. The Defendant says that he had only signed the cheque on the understanding that it would not be dated and that it would not be presented until “the dispute which had arisen with regard to the croupiers had been resolved”. An employee of the club who had proffered the cheque did not say anything in response or otherwise dissent from that proposition.
d) On 14 March the Claimant presented the substitute cheque which was now dated 10 March to its bank for payment. It was however dishonoured since the Defendant had sent a fax to his bank in Switzerland countermanding payment.
e) The Claimant did not issue proceedings till shortly before the six year limitation period expired. In the meantime, there were discussions from time to time with the Defendant about the outstanding indebtedness.
f) The Defendant continued to gamble substantial sums at the club after 10 March (almost £41,000,000) and in the process lost in excess of a further £10,000,000. During this period the club required that any further gaming tokens purchased by the Defendant were paid for in cash or by debit card or third party cheques.
The only correspondence between the parties of any materiality that was produced was a letter from the Claimant club to the Defendant dated 13 February 2002 which read as follows: —
“It is now one year since we discussed the matter of your indebtedness to the club of £2 million.
At this meeting you asked us to allow you one year, during which time you would continue to play here and make repayments from winnings. This has not happened and the debt remains unaltered. Apart from there having been no payments, there have been few visits with none at all in the past few months.
I am pressured by my board of directors, our shareholders and our auditors to pursue this debt and we are ever mindful of the Gaming Board who could construe a “credit giving” argument.
As you know Angelo and I hold you in the highest regard and we ask you to give us a repayment schedule so that we can put this matter behind us.”
The statutory background
The relevant parts of the Gaming Act 1968 are as follows:
Provision of Credit for Gaming
(1) Subject to subsections (2) to (2A) of this section, where gaming to which this Part of this Act applies takes place on premises in respect of which a licence under this Act is for the time being in force, neither the holder of the licence nor any person acting on his behalf or under any arrangement with him shall make any loan or otherwise provide or allow to any person any credit, or release, or discharge on another person's behalf, the whole or part of any debt,—
(a) for enabling any person to take part in the gaming, or
(b) in respect of any losses incurred by any person in the gaming.
(2) Neither the holder of the licence nor any person acting on his behalf or under any arrangement with him shall accept a cheque and give in exchange for it cash or tokens for enabling any person to take part in the gaming unless the following conditions are fulfilled, that is to say—
(a) the cheque is not a post-dated cheque, and
(b) it is exchanged for cash to an amount equal to the amount for which it is drawn, or is exchanged for tokens at the same rate as would apply if cash, to the amount for which the cheque is drawn, were given in exchange for them;
but, where those conditions are fulfilled, the giving of cash or tokens in
exchange for a cheque shall not be taken to contravene subsection (1) of this section.
(2A) Neither the holder of a licence under this Act nor any person acting on his behalf or under any arrangement with him shall permit to be redeemed any cheque (not being a cheque which has been dishonoured) accepted in exchange for cash or tokens for enabling any person to take part in gaming to which this Part of this Act applies unless the following conditions are fulfilled, that is to say—
(a) the cheque is redeemed by the person from whom it was accepted giving in exchange for it cash, or tokens, or a substitute cheque, [ or a debit card payment,] or any combination of these, to an amount equal to the amount of the redeemed cheque or (where two or more cheques are redeemed) the aggregate amount of the redeemed cheques;
(b) it is redeemed during the playing session in which it was accepted, or within thirty minutes after the end of the session;
(c) where a substitute cheque is given in whole or in part exchange for the redeemed cheque the substitute cheque is not a post-dated cheque;…
(d) where tokens are given in whole or in part exchange for the redeemed cheque, the value of each token is equal to the amount originally given in exchange for it or, if the token was won in the gaming, the value it represented when won; [ and
(e) where a debit card payment is given in whole or in part exchange for the redeemed cheque, the payment has been authorised by the holder of the card and by or on behalf of the issuer of the card;
but, where those conditions are fulfilled, the return of a redeemed cheque in exchange for cash, or tokens, or a substitute cheque, [ or a debit card payment,] or any combination of these, shall not be taken to contravene subsection (1) of this section.
(3) Where the holder of a licence under this Act, or a person acting on behalf of or under any arrangement with the holder of such a licence, accepts a cheque in exchange for cash or tokens to be used by a player in gaming to which this Part of this Act applies [ or a substitute cheque], he shall not more than two banking days later cause the cheque to be delivered to a bank for payment or collection.
(3A) Subsection (3) of this section shall not apply to a redeemed cheque.
23. Offences under Part II.
(1) Subject to the following provisions of this section, if any of the provisions of sections 12 to 20 of this Act, or of any regulations made under subsection (1), subsection (2) or subsection (4) of section 22 of this Act, are contravened in relation to any premises,—
(a) the holder of the licence, if they are premises in respect of which a licence under this Act is for the time being in force, or
(b) every officer of the club or institute, if they are premises in respect of which a club or a miners' welfare institute is for the time being registered under this Part of this Act,
shall be guilty of an offence.
The defence
In opposing the application, the Defendant relies primarily on the circumstances in which the substitute cheque was provided, dated and presented. In particular, three points are made: —
i) The Claimant was in breach of the agreement not to date or present the cheque.
ii) The cheque was post-dated within the meaning of section 16(2) of the Gaming Act 1968.
iii) The Defendant only provided the cheque on the understanding that it would not be dated or presented until the “dispute” had been resolved which amounted to the unlawful provision of credit.
Post-dated
For this purpose it is to be assumed that, at some stage before the substitute cheque was presented, the Claimant dated it 10 March. But this does not render it a post-dated cheque within the meaning of...
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