Citation: [2023] EWHC 2226 (TCC)
This is the decision in a consequentials hearing to determine costs following judgment given by Coulson LJ (sitting as a High Court Judge) on a preliminary issue of standing: [2023] EWHC 1961 (TCC). In that case, a procurement challenge arose from the competition for the licence to run the National Lottery. The challenge was brought by a non-bidding third party company, International Game Technology Group (IGT), which was at best a sub-contractor to one of the unsuccessful bidders, Camelot UK Lotteries Ltd. Coulson LJ held that nothing in EU or UK law was intended to confer standing to a wider group than the unsuccessful bidders. He rejected IGT’s wide interpretation of ‘economic operators’, limiting standing to unsuccessful bidders on this basis as well.
In this hearing, the Gambling Commission claimed an order against IGT for their costs of the claims (including the preliminary issue on standing) and for a payment on account of costs. The interested parties (‘Allwyn’) also sought an order against IGT for the costs of the claims, including the preliminary issue. Coulson LJ agreed and gave judgment accordingly.
Held – Coulson LJ (sitting as a High Court Judge)
The Commission’s costs: It was undisputed that IGT was to pay the Commission’s costs of the claim on the standard basis if not agreed. The reasonable sum forming the basis of such payment would be an estimate of the likely level of recovery, allowing for an appropriate margin for error in the estimation. This was a necessarily rough and ready process as: no detailed assessment had taken place; justice required an amount to be identified and paid on account; and the successful party should not be made to wait for the completion of a potentially long assessment process. Relevant factors in this assessment include: (i) the likelihood of recovery of the total costs or a portion of it, (ii) the difficulty that may be faced in recovering costs, and (iii) the parties’ means. None of these factors had any weight in the present case and the appropriate amount was held to be £2.1m by way of an interim payment: [10].
Interested parties’ costs: For Allwyn to recover its costs, the first question was whether an order should be made entitling it to its costs of the claims generally, before considering whether a different order should be made for the specific costs incurred in the preliminary issue: [18]. Allwyn was entitled to its costs as it had been joined properly to the claim at the start; had specific interests to protect and separate points to make; and had been expected to play (and had in fact played) full part in the resolution of the claims: [24]. It had also been regarded by everyone as capable of recovering its own costs or paying the costs of others.
The role of interested parties: IGT argued that interested parties should only recover costs in a preliminary issue where they have played an active and distinct role, likening the applicable situation to “Hamlet without the Prince”. It submitted that Allwyn’s costs for the preliminary issue should be carved out as they had played an insignificant role, more like “Hamlet without the gravediggers”: [28]. It was held that the answer lies in the wording of the order which initially joined the interested parties to the proceedings. The Judge held that it would be “grossly unfair” to carve out any element of its costs of the preliminary issue from the general order awarding Allwyn its costs of the claims “simply on the basis that there was some duplication in the written arguments”: [33]. In practical terms, such duplication was inevitable where two separate parties were preparing two separate skeletons to be produced at the same time: [32].
Sarah Hannaford KC acted for the Defendant. A copy of the judgment is available here.
For the facts and ratio in that earlier decision, please refer to the July 2023 case law update.
