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Robertson v. Anderson [2002] ScotCS 312 (05 December 2002)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord MacLean
Lord Reed
Lord Weir
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A1234/01
OPINION OF THE COURT
delivered by LORD REED
in
RECLAIMING MOTION
in the cause
ISOBEL ROBERTSON
Pursuer and Respondent;
against
LORNA ANDERSON
Defender and Reclaimer:
_______
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Act: Dorrian, Q.C., Davidson; Drummond Miller, W.S.
Alt: Clancy, Q.C.; MacBeth, Currie & Co.
5 December 2002
When the pursuer and the defender set off together on 21 November 1997 to play bingo at the Mecca Bingo Hall in Drumchapel they can hardly have anticipated that that activity would give rise to learned legal arguments in the courts. The defender, however, won a big prize; and, when she declined to share it with the pursuer, the latter brought the present proceedings for payment of half the winnings, alleging that there had been an agreement to "go halfers". The Lord Ordinary found in favour of the pursuer. The principal issues raised in this appeal against his decision are whether he was entitled to find that there was such an agreement, and to hold that such an agreement was legally enforceable.
To play bingo, in the form in which it was played in Mecca Bingo Halls at the material time, players bought books of cards on their arrival at the hall and then sat at tables in the hall. Each card had fifteen numbers printed on it, in the form of three lines of five numbers. Numbers called at random were called out by a caller in the hall. If a number which was called coincided with a number on a player's card, the number on the card would be marked off by the player. A small prize would be awarded to the first player to mark off a whole line of numbers. A slightly larger prize would be awarded to the first player to mark off two lines of numbers. A larger prize again, which might be as much as a few hundred pounds, would be awarded to the first player to mark off an entire card (a "full house").
During the course of the evening's play there was an interval. Immediately after the interval, at about 8.30 p.m., a special game was played, known as the National Game. This was a game played simultaneously in all Mecca Bingo Halls throughout the United Kingdom, with the same numbers being called in all the halls. The game was played for a full house only. In each hall, the first player to get a full house would win a prize of a few hundred pounds. More importantly, however, a comparison would be made between the full houses in all the halls in the region, to see which full house had been reached in the smallest number of calls. The player in the region who had got a full house in the smallest number of calls would win the regional prize of several thousand pounds. A comparison would also be made between all the regional winners, to see which player in the whole of the United Kingdom had got a full house in the smallest number of calls. That player would win the national prize, which was worth at least £100,000.
At the material time, the pursuer and the defender were friends. They both lived in Dunoon. They regularly played bingo at the Mecca Bingo Hall in Drumchapel, travelling there together and playing at the same table. On the night in question, they travelled together to the hall. On their arrival, they bought their cards for all the games. As usual, each of them bought six cards for each game. They then sat at a table and played the games. There were over a thousand people playing in the hall. When the National Game was played, the defender got a full house and received a prize of £390. About fifteen minutes later it was announced that she had also won the regional prize, worth £8,000, and the national prize, worth £100,000.
The evidence bearing on the issue whether there was an agreement to share winnings was summarised by the Lord Ordinary in his Opinion; and, before us, the accuracy of this summary was not disputed. He said:
"[18] According to the pursuer, she had a form of ritual with the defender when they were driving to the bingo, normally when going down the hill to the ferry. The defender would say to her 'I know I always ask you this, but are we going "halfers" on the National (or the "Big One")?'. The pursuer would laugh and say 'yes'. The defender would then reply that she was 'just checking'. As time went on, it was understood that they would not just share the National but 'everything'.
The pursuer maintained that on the night of the win, during the drive down to the ferry from Clyde Street, she had the 'usual' discussion with the defender. This consisted of the defender saying: 'I know I ask you this every time but are we going "halfers" on the National?'. Because of their recent understanding the pursuer replied: 'why don't we go "halfers" on everything?' The defender had accepted that.
...
The defender, on the other hand, maintained that there were no agreements about sharing winnings in relation to the normal bingo card games (book bingo) or indeed any discussions about such sharing. She did say that she always said that if she won the 'big prize' then she would share it with her friends and family in the sense of giving them some unspecified portion of the winnings. However, she said that she had never said that she was going to go 'halfers' on the National or that any agreements they had would extend to all the prizes. She denied that there had been any agreement on the night of the win. She did not even use the word 'halfers' in her general speech."
Evidence was also given by a number of persons who had accompanied the parties to bingo on previous occasions:
"[23] ...Linda Robertson had gone to play bingo with them on a number of occasions after the pursuer's return from Oxford [where she had lived between 1989 and 1995], although perhaps only once to Drumchapel. She was unaware of any agreement having been reached in relation to the National or any other prize, although the understanding was that anyone winning a house prize would buy supper. The exception was the table bingo. She would not have shared any win. Although some of her friends did share, she would not have become involved in such an arrangement. Any prizes won by the pursuer were kept by her. She was aware of one such win but that might have been before the pursuer's return from the south.
The defender's sister Elise Harnisch, who lived in America, was over for about three weeks in August/September 1997 and went to the bingo twice in that time, once to Drumchapel and once to Greenock. On the way to Drumchapel she recalled the pursuer saying 'are we sharing' and everyone agreeing in relation to the National. There was no agreement in relation to the house prizes. Some prizes had been won, including by the pursuer, and were not shared. No arrangement had been proposed during the Greenock trip and again, when the pursuer won, the win was not shared.
Jean Beattie had also played bingo with the parties after the pursuer's return from England. She had last gone with them some months before the win. No-one had ever mentioned what would happen if one of them won the National. She was never asked about sharing any prizes. There had been no sharing of prize money other than by way of the purchase of the supper. Jan Robertson had also gone with the parties to play bingo perhaps half a dozen times after the pursuer's return from Oxford. It had been said that there would be a sharing of the National prize money but Mrs. Robertson explained that this was just talk and it was only that everyone would get a share but not that there would be an even split. This had been early on in the visits to the bingo and not in the time leading up to the win. It had been talk in the Hall and not the car. There had been no discussion about sharing house prizes and these were not in fact shared."
Evidence was also given by the manager of the hall, Mr. Richard Horseman, who had came over to the parties' table with champagne shortly after the national prize was announced:
"[27] Mr. Richard Horseman said that, at the table, the parties had been very excited. The defender said that they had always shared their winnings in the past and they were going to share this one. She said they were going to split this one. Mr. Horseman was impressed and was adamant that it was the defender who had said this, otherwise he would have been sceptical."
Further evidence bearing on this issue was given by Mr. John McEachran, a journalist attached to the Sunday Mail who had spoken to the defender between 12 a.m. and 1 p.m. the following day (i.e. Saturday 22 November) and by Mr. Richard Benjamin, a reporter on the Sunday Post, who interviewed the defender on the Saturday evening:
"[37] Mr. McEachran no longer had his notes of his conversation with the defender before his article was written. She had been happy on the telephone and had agreed to a photograph being taken. Before talking to her on the telephone, Mr. McEachran had no knowledge of any arrangement to share in the winnings. In particular he said that neither his news editor nor the bingo hall manager had mentioned this. However, he asked the defender what she was going to do with the money. She told Mr. McEachran that she was going to 'split' the money with her friend Isobel. Mr. McEachran asked her to repeat what she had said and told her he thought that this was very generous. She said that they had agreed 'on the way up' to the bingo hall that they would split the money if they had any winnings ...
Mr. Benjamin also did not have any notes now but initially said that the defender told him that she had won £50-60,000. He had by then understood that she was going to split the money with a friend and asked her about that. She then said 'Yes, we've always said we'd split any money we won.' He asked her if there was any prospect of her going back on her intention to split the money and she said 'no'."
This evidence was consistent with the articles which the journalists had written immediately after speaking to the defender. Finally, evidence was also given by Mrs. Mary McDonald, a friend of the pursuer who had met the parties on the ferry back to Dunoon:
"[30] ...According to Mrs. McDonald, the defender had said 'they'd won £54,000 each'. The defender did not say that it had been her win although Mrs. McDonald knew that it had been her ticket that won. They said that they had had only small wins in the past and she had the impression that they had shared those."
In his assessment of the evidence, the Lord Ordinary said:
"[44] I accept the evidence of the pursuer that an agreement to share the proceeds of any win of the National prize was reached with the defender on the way to the Mecca Bingo Hall on the night of the win. The pursuer was a reasonably articulate witness who explained her position clearly and calmly. Although I did not accept her evidence in its entirety and considered that on at least two issues she was not telling the truth because she regarded that truth as being potentially damaging to her cause, her general demeanour in the witness box did not provide me with any reason to reject as incredible or unreliable her evidence on the critical issue of whether an agreement had been made. On the contrary, I have concluded that her evidence on that point was truthful and reliable.
One ground of criticism of the pursuer was that, on the one hand, she said that she was anxious to avoid contact with the media yet at the same time she allowed at least one of the television companies to film her at home and had participated in a press conference albeit, she said, on the advice of her solicitor. I am not convinced that the pursuer was being entirely frank about her approach to media coverage at around the time of the press conference ...
On the issue of whether agreements were always reached with the defender and others in the manner she suggested, a further ground of criticism was that her evidence on this was contradicted by many of the other bingo players. However, I reject her evidence in this area first because in any event I thought it inherently improbable that there would be an identical discussion between friends on the same subject and at the same location using the same terminology every time they visited the bingo. I was not at all convinced that there was a 'ritual' as described by the pursuer. On the contrary, I thought that the pursuer was exaggerating the extent to which agreements were reached and knew that she was so exaggerating. In this regard, it is significant that the evidence of Linda and Jan Robertson and Mrs. Beattie did not support a frequency of agreement along the lines suggested by the pursuer. I accept their evidence first to the extent that had such a level been in existence then they would have been aware of it and I believed them when they said that they were not aware of agreements being reached. I also accept their evidence secondly that there had been no significant past sharing of wins and in that regard reject the pursuer's denial of this. Again, if such sharing had gone on then the other players would have been aware of this yet none spoke to it occurring. On balance, I think their evidence should be preferred on this point and suspect that the pursuer was mistakenly denying that she had not shared her own past wins as she thought it would be damaging to her case.
The fact that some of the various bingo players did not recall agreements to share prizes does not, however, lead me to conclude that none were ever made. Indeed I am of the view that they were made on occasions. The evidence of Mrs. Harnisch was, I thought, significant on this point. Her evidence, which I accepted, pointed towards the existence of such agreements at least in relation to the National prize. I therefore looked to see what else supported or contradicted the pursuer's contention that an agreement had been reached on this occasion or supported or contradicted the defender's position.
The evidence of the journalists McEachran and Benjamin was important in this area since they appeared to be independent witnesses attempting to recall, as best they could, what the defender had actually said to them on the day after the win. I was unable to detect any reason why they should not be regarded as credible ...
It was argued that nevertheless the use of words like 'split' or 'share' did not necessarily mean equal sharing and neither necessarily referred back to an agreement. No doubt that is correct as a generality but in the contexts used in this case, I was of the view that that is what was meant by the defender when she spoke to the journalists and, at an earlier stage, the bingo hall manager ...
The evidence of the journalists McEachran and Benjamin was supported by that of the bingo hall manager, Mr. Horseman, who again spoke to the defender saying that she was going to 'split' the money. I found the manager credible and reliable on this point ...
Of the various people met on the ferry, I had no reason to think that they were not trying to tell the truth or were not reliable. In particular, I thought Mrs. McDonald gave her evidence in a straightforward way and she said that the defender had told her that they had each won half of the total prize money. Again this is consistent with the pursuer's version as supported by the journalists and the bingo hall manager."
In support of the reclaiming motion, counsel for the defender submitted in the first place that the pursuer's averments as set out in the Closed Record had not given notice of, and did not enable the pursuer to establish, a case based on the making of a contract on the night in question, as distinct from a case based on a standing agreement to share winnings which was merely acknowledged on the night in question.
We are unable to accept this submission. The relevant averments are in the following terms:
"[I]n 1995 ... the pursuer and the defender began to play bingo at the Mecca Bingo Hall in Drumchapel. The pursuer and defender agreed verbally that, when going to the bingo, they would split any prize won by either of them equally between them. In particular, they agreed verbally that, in the event of either of them winning the national prize, being the largest prize available at the bingo, then that would be split equally with the other. That agreement applied each time they attended the bingo. The defender was in the habit of checking with the pursuer each time they went to play bingo that the agreement remained in place ... On 21 November 1997 the pursuer and defender travelled in the pursuer's car from Dunoon to the Mecca Bingo Hall in Drumchapel, with a view to playing bingo. In the course of that journey, the defender discussed the usual agreement referred to above with the pursuer. The pursuer and defender again agreed that any prize, and in particular the national prize, won by either of them would be divided equally between them" (emphasis added).
In our opinion, the averment which we have emphasised gives notice of a case that an agreement was reached on the night in question. The preceding averments set that agreement in the context of a habitual practice of making such agreements. The pursuer gave evidence, which was led without objection, that such an agreement had been entered into on the night in question, in the context of such agreements being habitual. It was in our opinion open to the Lord Ordinary, on these averments, to reject as an exaggeration the pursuer's evidence that such agreements were invariably entered into, but nevertheless to accept her evidence that such an agreement had been entered into on the night in question (and on some previous occasions).
In a related submission, counsel for the defender argued that the Lord Ordinary could not find support in other evidence for "the pursuer's contention that an agreement had been reached on this occasion", as he had purported to do, since the pursuer had made no such contention in her evidence. We are equally unable to accept this submission. In her evidence, the pursuer described the conversation in the car on the night in question in these terms:
"The words were, 'I know I ask you every time but are we going halfers on the National?', and I think I said, 'Yes. In fact, are we going halfers on everything?', and it was agreed we would be ... I'm positive she said 'Yes' to that."
The Lord Ordinary was in our opinion entitled to reject the pursuer's account of this conversation in so far as it included the preparatory words "I know I ask you every time but ...", but to accept the remainder of her account. He was also entitled to find support for the pursuer's account, to the extent that he accepted it, in the evidence of other witnesses such as the bingo manager, the journalists and Mrs. McDonald.
Counsel for the defender was also critical of a remark made by the Lord Ordinary relating to the absence of evidence from the defender's father. It was not in dispute that the defender had telephoned her father on the way home from the bingo hall, and that he had joined the parties in the defender's house on their return to Dunoon. According to the pursuer, the defender had told her father, both on the telephone and in the house, that the parties had won £54,000 each. The defender denied that she had said this, and maintained that she had told her father that she had won. Her father was not led as a witness by either party. The Lord Ordinary observed:
"[56] The defender's position was not directly supported unequivocally by any witness. In this regard, I do think it is a matter for legitimate comment that the defender'' father was not called by her to support her position given his role soon after the events."
In the context of the evidence as a whole, it is apparent that this observation was not critical to the Lord Ordinary's decision, and counsel for the defender conceded, correctly in our opinion, that nothing turned on this issue.
On the assumption that the Lord Ordinary was entitled to find that an agreement to divide any winnings was entered into on the night in question, counsel for the defender submitted that the Lord Ordinary was not in any event entitled to hold that any such agreement was intended to create a legally enforceable contract. The discussion between the parties on the way to the bingo had taken place in a social context: a conversation between friends, on a social occasion, was not a context in which a legally binding agreement was likely to be intended. The eventuality of winning the national prize had been a very remote possibility. What had been said at that stage was consistent with light-hearted conversation. What had been said by the defender after winning the prize was more likely to have been an expression of generosity, or euphoria, than an acknowledgement of a legal obligation. Counsel referred to the case of Simpkins v. Pays [1955] 1 W.L.R. 975 as an illustration of circumstances in which an informal agreement among friends had been held to constitute a legal contract, and submitted that the circumstances of the present case were distinguishable.
We were not addressed on the relevance of intention in contract, or in particular on the nature and role of an intention to effect legal relations. Nor were we addressed on the proper characterisation of the contract which the pursuer seeks to enforce in the present case: whether, for example, it should be analysed as an agreement or as an exchange of promises. The discussion before us however proceeded on the basis that a promise or an agreement will be legally binding only if the promisor or the parties to the agreement can be taken to have intended to enter into an obligation which is to be legally enforceable. We are content to proceed on that basis. Following that approach, the critical issue is whether what was said by each party amounted to a serious undertaking of the kind to which the law attributes binding effect, or was, for example, merely light-hearted banter between friends, or a statement of future intention of a non-binding character.
Although no Scottish authority was cited to us on this aspect of the case, we note that the issue of contractual intention was considered in the case of Dawson International plc v. Coats Paton plc, 1993 S.L.T. 80. In his Opinion in that case, Lord Prosser observed (at page 95):
"Speaking generally, I would accept that when two parties are talking to one another about a matter which has commercial significance to both, a statement by one party that he will do some particular thing will normally be construed as obligatory, or as an offer, rather than as a mere statement of intention, if the words and deeds of the other party indicate that the statement was so understood, and the obligation confirmed or the offer accepted so that parties appeared to regard the commercial 'deal' as concluded. But in considering whether there is indeed a contract between the parties, in any particular case, it will always be essential to look at the particular facts, with a view to discovering whether these facts, rather than some general rule of thumb, can be said to reveal consensus and an intention to conclude a contract."
That case concerned a matter of commercial significance. Where a promise or agreement is made in a purely social context (e.g. an agreement to attend a dinner party, or to play a game of golf), then in most cases the promise or agreement will not be regarded as legally binding. Whether the context is social or commercial, however - and, these not being watertight compartments, some cases will concern contexts which contain elements of both - it is, as Lord Prosser said, essential to look at the particular facts to discover whether those facts reveal an intention to conclude a contract.
In the present case, the Lord Ordinary accepted the evidence of Mrs. Harnisch that, on an occasion in August or September 1997 when she had accompanied the parties to the Mecca Bingo Hall in Drumchapel, there had been an agreement to share the winnings of the National Game, but not the "house" games, and that "house" winnings had not in fact been shared. The Lord Ordinary also accepted as truthful and reliable the evidence of the pursuer that an agreement to share all winnings had been reached on the night in question, although he regarded as exaggerated her evidence that agreements of that nature had invariably been entered into on previous outings. The Lord Ordinary also accepted the evidence of other witnesses that the defender had made statements, after the win, which implied that she regarded both the pursuer and herself as having won the prize, and that they had each won one-half of the total prize (e.g. Mrs. McDonald's evidence that the defender had said that she and the pursuer had won £54,000 each). It is also necessary to bear in mind that the effect of an agreement to share the winnings was to double each party's chance of winning; and, although the amount of the prize which the winning party would retain would be halved, it would remain a substantial sum of money. As the pursuer said in evidence, "You double the opportunity to win ... you only end up with half of what you might have had, had you been there on your own, but you've got twice the chance of winning it, haven't you?".
We find it difficult to understand why, on previous occasions, the parties would have agreed to treat the National Game differently from other games, and to share the winnings only of the former, unless that agreement had been seriously intended. If that agreement was seriously intended, then the agreement on the night in question is also likely to have been seriously intended. The defender's statements, as reported by Mrs. McDonald and others, also strongly suggest that she understood the agreement to have been binding upon her, and to have had the effect that she was entitled to only half the winnings. The evidence does not suggest that the agreement was merely light-hearted conversation. It appears to have been understood, by both parties, as constituting an informal joint venture, under which each of them played the game for their joint benefit in the event of a win, thereby doubling the opportunity for each of them to participate in the winnings. Although this was undoubtedly an informal arrangement made between friends, the Lord Ordinary was nevertheless entitled to conclude that it was an agreement which gave rise to legal consequences. Just as in Simpkins v. Pays, which concerned an informal syndicate among acquaintances entering a newspaper competition together, an intention to create legal relations can be inferred.
Finally, counsel for the defender submitted that any contract between the parties was in any event sponsio ludicra, and therefore unenforceable. Under the contract, each party had an interest in the gaming contracts which they entered into with Mecca when they played bingo. Those gaming contracts were themselves plainly unenforceable, being sponsiones ludicrae, and the contract between the parties was intimately connected with the gaming contracts. Counsel adopted the summary of the common law by Lord Fraser in Cumming v. Mackie, 1973 S.C. 278 at pp. 279-280:
"The general law of Scotland as to sponsio ludicra is now well settled and was not disputed before me. It is that an action for the recovery of a gaming debt is not maintainable against the party in the gaming contract with whom the bet or wager is made, and it makes no difference to the application of that rule that there does not exist any dispute as to who is the winner of the bet or wager, or as to the amount of his winnings - see Robertson v. Balfour, 1938 S.C. 207 and Kelly v. Murphy, 1940 SC 96 per Lord Justice Clerk Aitchison at p. 100. The law is conveniently summarised in Gloag on Contract (2nd ed.) at pp. 581-2 where most of the Scottish cases are referred to. The rule applies so that the Court will not take cognizance of a supervening contract which is subsidiary to, and flows from, the original gaming contract - see Robertson v. Balfour. Nor is an action maintainable if it is in substance an action for recovery of money won by a wager on a horse race, O'Connell v. Russell, (1864) 3 Macph. 89. The Court will not enforce an agreement which is part of the gaming contract, Lee v. Lord Dalmeny, [1927] 1 Ch. 300. On the other hand, if the result of the race or other event on which the wager was placed is admitted, the Court will intervene to protect the patrimonial rights of the parties. Thus an action by the winner against a stake holder is maintainable, at least where he seeks recovery of a prize in a competition involving skill or prowess or merit of performance, Graham v. Pollok, (1848) 10 D. 646, Calder v. Stevens, (1872) 9 Macph. 1074, but possibly not if the bet was a mere wager - see Kelly v. Murphy, per Lord Justice Clerk Aitchison at page 105. Further the Court will deal with an action which is connected with a gambling transaction if the connection is collateral or incidental, see Knight & Co. v. Stott, (1892) 19 R. 959. Even an action for recovery of money lent for gambling has been held to be maintainable, see Hopkins v. Baird, 1920, 2 S.L.T. 94, provided that the action is not struck at by the statutory prohibitions to which I shall refer later."
In the present case, counsel for the defender submitted, the contract was not merely collateral or incidental to the gaming transaction, in the sense in which that could be said of the transaction with which Knight v. Stott was concerned (where an agent sought to recover from his principal the amount which he had disbursed when laying bets on behalf of his principal). In particular, under the contract in the present case, each party had an interest in the outcome of the gaming contract which the other party entered into with Mecca. The guiding principle, as explained by Lord Justice Clerk Aitchison in Robertson v. Balfour and Kelly v. Murphy, was that courts of justice were instituted to enforce the rights of parties arising from serious transactions, and therefore would not enforce engagements of too trivial or frivolous a character to merit the countenance of the law. The issue in the present case, in counsel's submission, did not arise from a serious transaction.
In reply, counsel for the pursuer submitted that the concept of sponsio ludicra was confined to gaming contracts, or contracts which sought to enforce gaming contracts (as in Robertson v. Balfour): in other words, cases where the parties were on the opposite side of a bet or wager. In the present case, the contract which the pursuer sought to enforce was collateral to the transaction between the defender and Mecca. The parties had been involved in an informal joint venture similar to that which the court considered in Clayton v. Clayton, 1937 S.C. 619. In that case, it had not been suggested either by counsel or by the court (the point being one which it was pars judicis to raise) that the right of one party to the joint venture to obtain his share of the winnings from the party who had received them was unenforceable by reason of the doctrine of sponsio ludicra.
We were not addressed on the question whether changes in the commercial and public significance of betting and lotteries, and in their acceptability, had any implications for the development of this common law doctrine. Nor were we addressed on the question whether a doctrine under which the court declines to entertain an action for the enforcement of contractual rights and obligations is compatible with Convention rights, in particular the right of access to a court guaranteed by Article 6(1) of the European Convention on Human Rights. In view of the conclusion which we have reached on the applicability of the doctrine to the circumstances of the present case, it is unnecessary for us to consider these questions ex proprio motu.
Scots law has not defined precisely the concept of sponsio ludicra, and the scope of its application is not entirely clear from the decided cases, some of which are not easily reconciled. Nor do the cases clearly reveal a single principle underlying the concept which would enable its scope to be defined. As Lord Coulsfield observed (in an Opinion which was not cited to us, but which contains a valuable review of the authorities), in Ferguson v. Littlewoods Pools Ltd., 1997 S.L.T. 309 at page 312:
"It can perhaps be seen that a number of different considerations played a part in the development of the rules and that these considerations received different emphases in different cases. In some cases, such as Hope v. Tweedie (1776) Mor 9522, for example, the ground of decision is that the parties cannot have intended that the transactions should have any legal consequences. In other cases it is said to be beneath the dignity of the court to enter into the question who won or lost a particular wager. In other cases, stress is put on the fact that such transactions do not have commercial significance, and it may be that, in some of those cases, a general disapproval of gaming or wagering can be detected."
In practice, cases in which the court has declined to enforce a contract on this ground have for the most part involved determining the winner of a game or contest (e.g. Kelly v. Murphy), or determining whether money was payable by one party to a bet or wager to the other party (e.g. Robertson v. Balfour). The concept has not however been applied in all cases concerning entitlement to the winnings of a game or contest.
In Graham v. Pollok, for example, there was no dispute that a dog race had been won by a dog named Violet, and that Violet had been entered in the race by one of the parties. The issue was whether that party had entered Violet for his own benefit, having borrowed Violet for the purpose, and was therefore entitled to the prize; or whether he had entered Violet as the agent of Violet's owner, who was therefore the person truly entitled to the prize. The court held that that issue involved no question of sponsio ludicra. The ratio decidendi appears to have been that the issue as to which party was entitled to the prize depended on the nature of the contract between them (i.e. whether it was loan or agency), and since that was a question which was separate from the race itself, no question of sponsio ludicra was involved. Lord Mackenzie, for example, said in his Opinion (at pages 648 to 649):
"One gentleman says, 'I gave you a mandate to run my dog for me.' 'No,' says the other, 'I borrowed him to run for myself.' That's the dispute, a question not of racing or hunting, but of contract of mandate or loan ... I do not think that such a question is at all of the nature of a sponsio ludicra."
The Opinion of Lord Fullerton is to the same effect. Lord Jeffrey put the matter in this way (at page 650):
"The whole sporting question is settled - the prize is awarded to Violet - and the question is, what individual has an interest by law and contract in what Violet has won?".
When Graham v. Pollok has been considered in subsequent cases, emphasis has sometimes been placed on the fact that the prize had been won not by betting or gaming, but by Violet's prowess; but most discussion has focused on the fact that "the case was concerned with the terms of the contract between the parties which was not a gaming or wagering contract" (Kelly v. Murphy at page 116, per Lord Wark; similarly at page 109 per Lord Mackay and at page 123 per Lord Jamieson).
Other authorities are consistent with that approach. In Clayton v. Clayton, for example, it was alleged that the pursuers and the defender had clubbed together to buy a ticket in an Irish lottery. The ticket was bought in the name of the defender, and a sum of money was won. The action was brought to compel him to share the winnings with the pursuers. The parties were alive to the issue of sponsio ludicra, and it was conceded in argument that the obligation to buy the ticket might have been unenforceable on that ground; but neither the parties nor the court raised any question as to whether the obligation to share the winnings might also be unenforceable on that ground. In other cases, the partners in a joint adventure which involved risking capital on an uncertain event have been held entitled to an accounting, on the basis that they were not wagering with each other, neither of them being better or worse off than the other by the event on which their profit or loss depended (see e.g. Mollison v. Noltie (1889) 16 R. 350 at page 353 per Lord Justice Clerk MacDonald).
In the present case, the precise nature of the contract was not analysed by counsel: they were content to proceed on the basis that there were simply mutual undertakings to share the winnings of any game in the event that both parties had played the game and either of them had won. Whether analysed in that way or otherwise, it appears to us that neither party was making a bet or wager with the other: neither of them could be better or worse off than the other as the result of the game. Their contract related to gaming, but it was not itself a gaming contract. The issue before the court - whether the defender is under an obligation to share with the pursuer the winnings which she received - does not involve the enforcement of a gaming contract. That issue therefore involves no question of sponsio ludicra.
For these reasons we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.
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