Judgment given on consequential matters in National Lottery procurement litigation

In July 2023, the High Court dismissed a significant claim for damages arising from the Gambling Commission’s competitive tender for the Fourth National Lottery Licence.

Claims had been brought by the incumbent holder of the Third Licence who had bid unsuccessfully for the Fourth Licence (Camelot), as well as Camelot’s proposed sub-contractors and sub-sub-contractors (IGT). Camelot subsequently discontinued its claim, but IGT continued. The winning bidder (Allwyn) was an interested party in the proceedings.

Sitting in the Technology and Construction Court, Coulson LJ held that IGT had no cause of action to sue under the Concession Contracts Regulations 2016.

A further hearing took place in August 2023 to address consequential matters, including the Commission’s and Allwyn’s claims for costs and an application for permission to appeal. Coulson LJ held that:

1. The Commission was entitled to its costs, including IGT’s share of the “common costs” that were incurred by the Commission prior to the discontinuance of Camelot’s claim. The Commission was also entitled to an interim payment of £2.1 million, which represented approximately 50% of the total costs incurred by the Commission.
2. Allwyn was entitled to its costs, following the principles governing the award of costs to interested parties that were set out in Bechtel Limited High Speed Two (HS2) Limited v Balfour Beatty Group Limited & Ors [2021] EWHC 640 (TCC) and Bolton Metropolitan District Council & Ors v SoS for the Environment [1995] 1 WLR 1176.
3. IGT’s application for permission to appeal the underlying judgment was dismissed. The proposed appeal had no prospect of success and there was no other compelling reason to grant permission to appeal.

A copy of the judgment can be found here. The proceedings have been reported on widely, for example in The Guardian, BBC News and Financial Times.

James Neill and Barney McCay are part of the counsel team which acts for the Gambling Commission, and are instructed by Capital Law and Hogan Lovells.