[This part of the test was overruled by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67]
However, the Supreme Court later ruled that this part of the test was superseded in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67