Duff v Racing Board

 
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1965 WJSC-CC 3273

WESTERN CIRCUIT COUNTY KILDARE,

CIRCUIT APPEAL.

E 1699
Duff v. Racing Board
DUFF
.v.
THE RACING BOARD
Mr. Justice Pringle
1

The Plaintiff, who is an experienced racogoer and punter, attended a Race Mooting at the Curragh on 12th September 1970 when he purchased a Jackpot Pool All Combinations Bet Ticket for which he paid the sum of Seven Pounds. As the amount payable for each unit was 5/-, this entitled him to 28 units. His ticket was number A.H.5940 and, in return for his £7, he was handed this ticket and counterfoil attached there to by the official and, when handed to him, it contained the signature of the Totalisator officer acknowledging receipt of the sum of £7 and it also contained the figures "28" in the to after the words "Total Units", and the figure "£7" as the Cash value at 5/- per unit. The Plaintiff simply asked for a ticket for 28 units and was not asked by and did not tell, the official, the number of horses in each race which he wished to combine and no figures were at that time filled in the column on the ticket headed "Total Selections". He later himself filled up the ticket and counterfoil as follows:- In the column headed "Horse Numbers" he inserted the following numbers of the horses he desired to combine Race 3 "6 and 9", Race 4 "All 7 runners", Race 5 "4", Race 6 "1", and in the column headed "Total Selections he inserted the following figures. Race 3 "2", Race 4 "7", Race 5 "1" and Race 6 "2". It will be observed that the Horse Numbers totalled 14, but that the Total Selections when multiplied came to 28, owing to the fact that the Plaintiff inserted the figure "2" in the "Total Selections" column under the column for the sixth Race, although under the "Horse Numbers" column for that race he only inserted the figure "1". He then posted his ticket in the Jackpot box before the start of the Third Race and retained the counterfoil filled up in the same manner as the Ticket. Horses nominated by him won each of the four races and he duly presented his counterfoil at the appropriate window and was paid the sum of £436.1.0 which was the dividend to which he would have been entitled on the basis that there were 30 successful units and that he was entitled to be paid for one unit. He says that before be could protest that he should have been paid for two units the door was closed. He then went to the Totalisator Office and claimed that he had been wrongly paid. He was handed a Claim Form which he filled up claiming the sum of £436.1.0 the amount of the Second dividend to which he claimed to be entitled. Correspondence then took place in which the Plaintiff put forward his claim and the Defendants put forward their contention that he was only entitled to be paid for one unit, and that he had been fully paid. The sole question in this action is as to whether the Plaintiff is entitled to be paid for a Second unit the sum of £407.90, which is the figure to which it is agreed he would be entitled if his contention is correct, which would mean that there were in fact 31 successful units. The first question which arises and which although not raised by either party on the Pleadings, is one which must be considered by the Court is whether the contract between the Plaintiff and the Defendants was a contract "by way of Gaming or Wagering" within the meaning of Section 36 of the Gaming and Lotteries Act 1956, in which case it would be void, and the Plaintiff could not recover under such a contract. The contract was clearly not one by way of "Gaming" as defined in the Act. "Wagering" is not defined, but its meaning under the earlier Gaming Act of 1845 Section 18 has been dealt with in a number of cases in England, amongst others in the cases of Carlill v. Carbolic Smoke Ball Co. (1892) 2QB 484, Ellesmerey. Wallace (1929) 2 Ch 1,Attorney-General v. Luncheon and Sports ClubLtd. 1929 Ac 400, and in the lost recent case of Tote Investors Ltd. v. Smoker 1968 1...

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