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Court of Appeal gives unsuccessful bidders permission to appeal lifting of automatic suspension on award of fourth National Lottery licence

The incumbent operator of the National Lottery, Camelot, and IGT, another bidder, have been given permission to appeal the High Court’s decision last month to lift the automatic suspension that prevented the Gambling Commission from formally awarding the fourth National Lottery licence to Allwyn Entertainment UK (Allwyn).

In an update on its website the Gambling Commission confirmed that the Court of Appeal’s decision meant that the automatic suspension remains in place, pending the outcome of the appeal proceedings. The appeal hearing is likely to take place in the week of 12 September.

The Gambling Commission said: “Throughout the litigation process, we have been clear that disrupting the implementation of Allwyn’s plans would present potentially severe consequences for the National Lottery and good causes. It also risks the National Lottery not operating to its full potential at the start of the fourth licence.

“We are, obviously, disappointed with this outcome, but respect the court’s decision. The appeal process will generate challenges for the transition to the fourth licence and further delay to the award of the licence to Allwyn. We regret the decision by third parties to bring legal proceedings following the outcome of a highly successful competition for the fourth National Lottery licence, actions which could impact transition to the Fourth Licence and, ultimately, funding for good causes.”

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“Nevertheless, it remains our priority to ensure a seamless transition between the third and fourth National Lottery licences, so that players can continue to enjoy playing the National Lottery fairly, safely and claim their prizes, and so that the National Lottery continues to deliver for good causes in every corner of the UK.”

The Gambling Commission added: “In order to protect the integrity of the process, we will not be able to discuss the specifics until litigation has concluded.”

UPDATE: The Court of Appeal has now published its permission decision in Camelot UK Lotteries Ltd & Anor v Gambling Commission & Ors [2022] EWCA Civ 1020.

The Court (Lord Justice Coulson and Lord Justice Snowdon) said: 

"3. The principal test is whether the grounds of appeal have a real prospect of success. That is CPR 52(6)(i)(a). That is a relatively low threshold.

4. Having considered the documents, and having heard the arguments, we have concluded that the applications for permission to appeal made by the Camelot companies have met that threshold in this case, and therefore, subject to the other points which we shall come on to, we grant them permission to appeal.

5. On the face of the material, we are less persuaded by IGT's submissions. However we have concluded that they too should be granted permission to appeal. There are two specific reasons for that. One is that we do not consider that it is appropriate at this stage to grant permission to one group of claimants and to deny it to another, when some at least of the challenges overlap.

6. The second point is that we are persuaded that there is here what CPR 52(6)(i)(b) calls "some other compelling reason for the appeal to be heard". Why do we say that? First, there is a dearth of appellate guidance on the correct approach to applications to lift the suspension (or to maintain the suspension) relating to the award of contracts, where the procurement process has been challenged. There are often two conflicting interests: the need to do justice, and the need for speed. In our view, the arguments, both this morning and indeed this afternoon, demonstrated the potential importance of such guidance.

7. We acknowledge Ms Hannaford's point that the Procurement Bill sets out provisions on this issue which use different words and terminology from those currently used by the courts, but – as a number of commentators have pointed out - it by no means follows that, even assuming that the Bill stays in this form, the test that will be applied by the courts will be very different to that which is currently applied. So we do not consider that the opportunity to give guidance is an academic exercise.

8. In addition, on the "some other compelling reason" point, it is important to be realistic. It is impossible not to acknowledge the significance of the Fourth Licence to run the National Lottery, which lies at the heart of the case, and the millions of pounds which the Lottery provides each week for good causes. That also suggests that these issues should be tried at a full hearing.

9. In consequence of the importance of this procurement exercise, this will become a flagged appeal. That means that it will be heard by the Master of the Rolls, possibly sitting with one or both of us...."

 

 

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