No claim for disappointed lottery subcontractor

28/07/23

The Gambling Commission commenced a Competition for the Fourth National Lottery Licence on 31 August 2020. There were four Applicants. One was Camelot who at the time of the competition was the incumbent provider of the National Lottery. Another was Allwyn who was the successful party. Camelot came second. Camelot commenced proceedings against the Gambling Commission for alleged breach of the Concession Contract Regulations 2016 (CCR 2016) which is the relevant procurement regulation based on the EU Remedies Directive (89/665/EEC).

Camelot subsequently discontinued their proceedings but six companies within the IGT Group brought their own proceedings, adopting the allegations originally made by Camelot.  They claimed that they had suffered substantial loss as a result of what they claimed was a flawed decision by the Gambling Commission because if Camelot had won, they would have acted as subcontractors to Camelot providing largely software equipment. They claimed that they were entitled to sue because CCR 2016 permitted any “economic operator” to make a claim where there was a breach of CCR 2016.  A trial was fixed for January 2024.

The question whether a subcontractor such as IGT could maintain such a cause of action even if a breach of CCR 2016 was proved was, given the importance of the point, determined as a preliminary issue by Coulson LJ in International Game Technology Plc v The Gambling Commission. The judge held that it was necessary to adopt a purposive construction to the definition of “economic operator” in accordance with the approach of the Supreme Court in Brent LBC v Risk Management Partners Limited [2011] 2 A.C. 34 and Energy Solutions v Nuclear Decommissioning Authority [2017] 1 W.L.R. 1373 in the light of the wide-ranging and unsatisfactory consequences which would follow from a literal approach. He thus held that no claim could be brought by IGT.

The judgment is here.