Citation: [2022] EWHC 1664 (TCC)
The TCC handed down judgment on 29 June 2022 in Camelot UK Lotteries Ltd v The Gambling Commission allowing the Defendant’s application to lift the automatic suspension.
Background
The proceedings arose out of a competitive tender for the award of a statutory licence for operation of the National Lottery (“the Fourth Licence”). The Claimants (Camelot and IGT) opposed the Defendant’s application and sought to maintain the suspension, preventing the Defendant from awarding the Fourth Licence to the successful applicant in the competition, Allwyn Entertainment Limited (Allwyn) pending the outcome of the trial.
TCC’s decision
In lifting the suspension, O’Farrell J was satisfied that damages would be an adequate remedy for the Claimants.
As to Camelot, the loss of Camelot UK’s business could be quantified. Its sole purpose as a corporate entity was to operate the National Lottery under the third licence. It provided its projected revenue and profit over the term of the Fourth Licence in its application. Therefore, any losses flowing from the loss of the Fourth Licence, and the business as a whole, were readily quantifiable. Further, the evidence did not indicate that if the automatic suspension were lifted, Camelot UK’s business would be destroyed; its business was limited to operation of the third licence, which would be unaffected. On expiry of the third licence, Camelot UK had no ongoing business that could said to be impacted by any unlawful failure to award it the new, Fourth Licence. There was also no compelling evidence that the reputation of the Camelot Group would suffer harm as a result of loss of the Fourth Licence so as to reduce its prospects of obtaining future contracts.
As to IGT, there was no cogent evidence that IGT would lose future contracts without its subcontract to Camelot UK. IGT argued that it would suffer potential unquantifiable losses, such as targeted investment into preparing services for Camelot under the Fourth Licence, new technologies and staffing restructuring. However, such losses fell within the normal risk of losing a competitive tender. It was also likely that much investment could be used by IGT in its other global ventures, and any specific losses could be quantified.
The Court accepted the Defendant’s case that damages would not be an adequate remedy if the suspension were maintained as there would be inevitable delay to the start of the Fourth Licence, resulting in real losses that would be very difficult to quantify and would not be compensatable in damages.
The balance of convenience lay in lifting the automatic suspension. Even if the hearing could be concluded by the end of October 2022, and a swift judgment produced thereafter, that would still entail a significant delay to the commencement of the transition period, and there remained the possibility of an appeal. The contingency in the implementation period had already been eroded and Camelot, the incumbent under the existing licence, provided for a minimum transition period of 18 months. Therefore, it was inevitable that there would be delay to the start of the Fourth Licence.
The Court also rejected the alternative proposals by Camelot and IGT including partial implementation by Allwyn and partial lifting of the suspension. These proposals carried a very high risk of irremediable injustice to the Defendant and Allwyn.
Sarah Hannaford QC (instructed by Hogan Lovells International LLP) appeared for the successful Defendant.
