Flynn v Denieffe

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,EGAN J.,BLAYNEY J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-SC 3601
• Court: Supreme Court
• Docket Number: [S.C. No. 44 of 1990]
• Date: 01 January 1993

1992 WJSC-SC 3601

THE SUPREME COURT

O'Flaherty J.

Egan J.

Blayney J.

(44/90)

FLYNN v. DENIEFFE

BETWEEN

SEAMUS FLYNN

COMPLAINANT/RESPONDENT

AND

MICHAEL DENIEFFE

DEFENDANT/APPELLANT

BETWEEN

SEAMUS FLYNN

COMPLAINANT/RESPONDENT

AND

INDEPENDENT NEWSPAPERS PLC

DEFENDANT/APPELLANT

BETWEEN

SEAMUS FLYNN

COMPLAINANT/RESPONDENT

AND

EASON & SON LIMITED

DEFENDANT/APPELLANT

Citations:

GAMING & LOTTERIES ACT 1956 S21

FLYNN V DENIEFFE 1989 IR 722

TAYLOR V SMETTEN 1883 11 QB 207

ENRIGHT, AG V BEST'S STORES LTD 1970 IR 225

WILLIS V YOUNG & STEMBRIDGE 1907 1 KB 448

GAMING & LOTTERIES ACT 1956 S2

GAMING & LOTTERIES ACT 1956 S21(1)

GAMING & LOTTERIES ACT 1956 S21(2)

READER'S DIGEST ASSOCIATION LTD V WILLIAMS 1976 1 WLR 1109

IMPERIAL TOBACCO & ANOR V AG 1981 AC 718

Synopsis:

WORDS AND PHRASES

"Lottery"

Newspaper - Board game - Participants - Card holders - Cards distributed gratis to public - Board printed by newspaper - Game playable whether or not card holder bought newspaper used for game - Success dependent on chance - Lottery unlawful - (44/90 - Supreme Court - 15/12/92) - [1993] 2 I.R. 28 - [1993] ILRM 417

|Flynn v. Denieffe|

GAMING AND LOTTERIES

Lottery

Newspaper - Board game - Participants - Card holders - Cards distributed gratis to public - Board printed by newspaper - Game playable whether or not card holder bought newspaper used for game - Success dependent on chance - Lottery unlawful - Gaming and Lotteries Act, 1956, s. 21 - (44/90 - Supreme Court - 15/12/92) - [1993] 2 I.R. 28 - [1993] ILRM 417

|Flynn v. Denieffe|

1 JUDGMENT of O'Flaherty J.delivered the 15th day of December, 1992.

2 This is an appeal from the judgment and order of the High Court (Murphy J.) of the 15th December, 1989, arising on a case stated by the District Court (DistrictJudge Michael Reilly) holding that a game published by Independent Newspapers Plc in their newspapers in May, 1989, was an unlawful lottery contrary to Section 21 of the Gaming and Lotteries Act, 1956, as amended.

3 The essential facts of the case and, indeed, the relevant statute and case law, have been so fully set out in the judgment delivered by Murphy J. [1989] I.R. 722, as not to require repetition by me at anylength.

4 However, because the matter in controversy between the parties has now narrowed to a single point since the hearing in the High Court I can summarise the impugned game thus: it involved a board with a total of 41 numbered panels which was published in the Independent newspapers. For the successful participants prizes were on offer. Each player had to have a "scoop card" which was sent in the post to every household in the State; each card had four numbers and the player would move along the board using number by number and if he landed on a square entitling him to a prize (there were various prizes and,in particular, an entitlement to enter for a "grand prize") then he could write in claiming his prize. He did not have to purchase a newspaper to participate and the question of skill, which was the decisive matter for the District Judge and also featured at the High Court hearing, has now disappeared from the case since it is conceded that the question of any skill being involved in answering certain questions, prior to claiming a prize, does not arise and there was no skill involved in playing the game.

5 As all the cases point out, there is no statutory definition of a lottery but I took it to be accepted by the parties that, for the purposes of this case, a lottery consists of an arrangement for the distribution of prizes by chance where there is no element of skill on the part of the person participating and where there is some payment or consideration by or on behalf of the participant.

6 It is only necessary to add that historically the legislative intent to curb lotteries was to prevent peopleimprovidently parting with their money. The legislation was never concerned with whether sellers of goods or commodities increased their sales by offering prizes to members of the public as inducements to help increase their volume of sales.

7 It is now agreed that this newspaper game did involve -

8 (i) a distribution of prizes

9 (ii) by chance (and without any skill)

10 but Independent Newspapers Plc dispute that the relevant third requirement to constitute a lottery was present because it is submitted on their behalf that it was a necessary requirement that the participant as a pre-condition to entitlement to entry should have had to make a payment or some equivalent consideration. Here, it is submitted, the participant did not have to buy a copy of the newspaper at all. As is well known the readership of any newspaper far exceeds its circulation. A newspaper essentially is something that is bought to be looked at for its pictures; read for many different reasons, viz.its news coverage; sports coverage; features; book reviews; leading articles as well as advertisements. In addition, the reader may wish to solve any quizzes as well as to participate in any game or competition it may promote. In that sense it is dissimilar from the articles that were featured in other cases which were articles which it was sought to sell so that they might be consumed or otherwise disposed of and, so, the situation of seller, the potential customer and the prize is put in more marked relief. I instance three cases in chronological order; Taylor .v. Smetten (1883) 11 Q.B.D. 207 where packets of tea were sold containing coupons entitling the purchaser to a prize, the prizes varying in character and value; Attorney General (Enright) .v. Best's Stores Limited (1970) I.R. 225 where a purchase of goods at a supermarket to the value of a £1 entitled the customer to participate in a draw for a turkey and Imperial Tobacco Limited .v. Attorney General (1981) AC 719 where cigarette packets were distributed containing coupons entitling the customer to a prize but the customer was not obliged to buy apacket with a coupon; packets without coupons were on sale for the sameprice.

11 That a newspaper may, therefore, be more functional than other more disposable objects might not be decisive of anything in itself but it has some relevance I believe to the submission made on behalf of the prosecutor that the newspaper was more likely to be bought and to be bought by a significant number of customers for the purpose of entering this game or competition. The true position is that it does not have to be bought at all - in the way that the packet of tea, the groceries and the packet of cigarettes had to be bought to entitle the customer to participate in the three cases to which I have made reference.

12 For the prosecutor, it is further submitted, however, that the whole purpose of the promotion is to increase the sales of the newspapers and that someone must have paid for each participant's entitlement to take part in the game. With respect to the elaborate and painstaking submissions that were presented to us by Mr.Mackey S.C. in this regard I do not think that this is sufficient. It was, admittedly, held to be sufficient in the case of Willis .v. Young and Stembridge (1907) 1 K.B. 448. In that case medals were distributed gratuitously with numbers on them and the winning numbers were published in the relevant newspaper, information with regard to which could be obtained without charge at the office of the newspaper. It was held that all the chances were paid for in the mass by the general body of purchasers of the newspaper, although an individual purchaser did not have to pay for his chance. The correctness of this decision was doubted, to say the least, by the House of Lords in the Imperial Tobacco Limited case. It is, of course, not appropriate for me to comment on whether the case was correctly decided or not but what I am entitled to do is not to regard it as a precedent which I should follow, and I do not do so.

13 For my part, I would hold that it is an essential pre-condition to satisfy what I have called the third requirement to constitute a lottery that the actualparticipant, or someone on his behalf, must purchase by money or monies worth an entitlement to participate in the game. I find this element is absent in the circumstances of this case.

14 To that extent I disagree with the learned High Court judge where he concluded -

15 Whilst the promoters of the scheme no doubt recognized and counsel on their behalf emphasized that a person could in law, and might in fact, obtain a prize under the scheme without even having purchased any of the defendant's newspapers I think that this must be the exceptional case and that the reasonable inference from the nature of the scheme, the availability of the claims form and the contents thereof that the overwhelming majority of persons interesting themselves in the scheme and more particularly claiming prizes thereunder would have purchased the defendant's newspapers and that indeed the whole purpose ofthe scheme was to encourage them so to do. (at p.732)

16 Whether it was so or not that the overwhelming majority of entrants to the game were purchasers of the newspapers, nonetheless, the fact remained that it was not a condition of entry that any particular participant should have to buy a newspaper. I regard that as decisive. I would, therefore, for my part reverse the order of the High Court.

17 JOF112

18 JUDGMENT delivered on the 15th day of December 1992by EGAN J.

19 This is an appeal from a decision of the High Court given by Murphy J. on the 15th December, 1989. The case in the High Court has already been reported in 1989 I.R. at p. 722. The report sets out that s. 2 of the Gaming and Lotteries Act, 1956, provides that a lottery "includes all competitions for money or money's worth involving guesses or estimates of future events or of past events the results of which are not yet ascertained or not yet generally known." S. 21 subss. 1...