The TCC yesterday handed down an important judgment on the circumstances in which successful bidders will be entitled to file evidence and participate substantively at trial by making submissions and conducting cross-examination in procurement challenges.
The ruling arises out of legal challenges brought by the New Lottery Company (“NLC”) elating to the award of the c. £8 billion fourth licence to operate the UK National Lottery.
NLC, an investment vehicle of Mr Richard Desmond, sought to be awarded the Licence but is bid was unsuccessful because: (i) it was evaluated as non-compliant in respect of 12 different pass/fail award criteria, and (ii) its aggregate score was c. 30% lower than the scores of the first and second placed bidders, Allwyn and Camelot.
NLC pursues very wide-ranging challenges under the CCR 2016 seeking to: (i) challenge the lawfulness of the award of the National Lottery Licence, and (ii) contend that various post award modifications to the Licence are unlawful substantial modifications.
The proceedings are now listed for an 8-week trial in late 2025.
Allwyn, the successful bidder and current National Lottery operator, applied for permission to participate substantively in the proceedings, including by: (i) filing witness evidence, and (ii) making submissions and conducting cross-examination at trial. This was opposed by NLC.
Waksman J granted Allwyn’s application in full, and ordered NLC to pay Allwyn’s costs.
The judgment provides further guidance, adding to a growing body of case-law, regarding the approach the TCC will apply to the participation of successful bidders in substantial public contracts disputes.
A copy of the judgment will be provided here once available.
Joseph Barrett KC acted successfully or Allwyn, instructed by Quinn Emmanuel LLP, leading Malcolm Birdling of Brick Court Chambers.
NLC was represented by Michael Bowsher KC. The Gambling Commission was represented by Sarah Hannaford KC.
