12 September 2023
The High Court has ordered that an interested party in the unsuccessful challenge to the award of the new National Lottery operator should be awarded its costs.
Lord Justice Coulson – sitting in the High Court – said the new operator, Allwyn Entertainment, clearly met the test of having a specific interest to protect in the claim against the Gambling Commission.
In the substantive case, Coulson LJ held that the claimants (collectively referred to as IGT) had no standing to challenge the Gambling Commission’s award to Allwyn the licence to run the National Lottery.
Allwyn was an interested party and sought an order that IGT pay its costs on the basis that its separate representation was justified and it had fully participated in the resolution of the claim.
In International Game Technology PLC & Ors v Gambling Commission  EWHC 1961 (TCC), Coulson LJ adopted the principles for determining whether to grant an interested party its costs as summarised by Mr Justice Fraser in Bechtel Limited High Speed Two (HS2) Limited v Balfour Beatty Group Limited & Ors  EWHC 640 (TCC) (at paragraph 25).
Coulson LJ said he was “in no doubt that Allwyn have demonstrated a clear entitlement to their costs”.
He explained: “Allwyn were properly made an interested party in these proceedings at the outset because they had specific interests to protect and separate points to make; that they have been expected to play, and have played, a full part in the resolution of the claims; and that they have been regarded by everyone as a party who could, in the appropriate circumstances, recover its own costs or pay the costs of others.
“Thus, by reference to the principles summarised in Bechtel, I conclude that the specific features of this case justify an order that IGT pay Allwyn’s costs of the claims.”
A separate reason was that this was “an extremely important public procurement challenge”, given the significance of the National Lottery and the financial value of the lottery licence.
“The claims raised a raft of points of principle, only one of which– the issue of standing – has needed to be resolved. It would be absurd to say that, despite such unusual circumstances, Allwyn were not entitled to defend the award to them of the fourth licence by the commission, and to recover their costs of so doing if – as has happened – that defence has proved successful.”
Coulson LJ also refused permission to appeal.
Philip Moser KC, Ewan West, Jen Coyne and Cliodhna Kelleher (instructed by Osborne Clarke) for the claimants. Sarah Hannaford KC, James Neill, Rose Grogan and Barney McCay (instructed by Hogan Lovells) for the defendant. Charles Hollander KC, Joseph Barrett and Malcolm Birdling (instructed by Quinn Emanuel Urquhart & Sullivan) for the interested parties.