IGT & Ors v Gambling Commission & Allwyn Entertainment Limited [2023] EWHC 2226 (TCC)
The TCC today handed down an important judgment on the circumstances in which interested parties may recover their legal costs in public contract litigation.
The ruling arises out of litigation between relating to the award of the c. £8 billion fourth licence to operate the UK National Lottery.
Following a trial of preliminary issues, Coulson LJ (sitting as a Judge of the High Court) dismissed the IGT claims on the grounds that sub-contractors (and their related parties) are not granted a cause of action under the Concession Contracts Regulations 2016.
Following that judgment, Allwyn, the winning bidder (and interested party to the proceedings) made an application for its costs of participation in the proceedings. Allwyn had sought and obtained the Court’s permission to participate extensively in the substantive proceedings including by filing a pleading, witness statements and fully participating at trial.
The scale and complexity of the litigation meant that the sums of costs at stake were substantial – by way of example, the Gambling Commission’s costs alone were in excess of £4 million (despite using legal advisers operating at heavily discounted public sector panel rates).
Coulson LJ held that Allwyn was entitled to recover its costs of participating in the proceedings from IGT (subject to an order for detailed assessment, if these were not agreed).
In his judgment, Coulson LJ explained that this was a case where Allwyn had participated extensively in advancing legal submissions resisting IGT’s grounds of challenge that raised discrete and separate issues from those being advanced by the Gambling Commission. He explained that in those circumstances Allwyn was to be regarded as having a separate interest which fully justified its participation (including at the trial of the preliminary issue) and costs recovery as against IGT.
Coulson LJ also noted that in circumstances where all three parties’ written submissions were of “the highest standard”, he had found Allwyn’s of “particular” assistance.
The Judgment illustrates the continuing evolution of the role of Interested Parties in substantial public contract and commercial judicial review litigation and is an important addition to the authorities governing the ability of Interested Parties in public contract and commercial judicial review proceedings to recover their costs.
Joseph Barrett acted for Allwyn, instructed by Quinn Emmanuel LLP. Jen Coyne of 11KBW acted for IGT, instructed by Osborne Clark LLP. Jason Coppel KC previously acted in the proceedings for Camelot, instructed by Linklaters LLP.A copy of the judgment can be found here.
