Lee Feldman & Anor v Gambling Commission [2025] EWHC 3117 (KB)

[2025] EWHC 3117 (KB)KB-2024-003588
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/11/2025
Before
MRS JUSTICE HILL DBE
Between
(1) LEE FELDMANClaimants(2) KENNETH ALEXANDERClaimantGAMBLING COMMISSIONDefendant
David Sherborne and Gervase de Wilde (instructed by Slateford) for ClaimantsSara Mansoori KC and David Mitchell (instructed by TLT LLP) for DefendantHearing Hearing date: 20 November 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 26 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]By an application notice dated 12 November 2025 the Defendant seeks a Restricting Reporting Order (“RRO”) under s.4(2) of the Contempt of Court Act 1981. The purpose of the order is to restrain reporting of some aspects of the upcoming trial of the Claimants’ claims.[2]Submissions on the RRO application were made at the Pre-Trial Review (“PTR”) on 20 November 2025. As the trial is due to start on 8 December 2025, this judgment is being provided as a matter of urgency. I have been greatly assisted by the comprehensive written and oral submissions from all counsel.

The factual background

[3]By a claim issued on 29 October 2024 the Claimants seek damages and injunctive relief from the Defendant for misuse of private information and breach of confidence. The Defendant is responsible for regulating gambling in Great Britain. It also licenses individuals and businesses which offer gambling services.[4]In 2023 the Claimants purchased shares in 888 Holdings Plc, now named Evoke Plc (“888”), one of the largest gambling operators in Great Britain, through a company called FS Gaming Investments LLC (“FS Gaming”). The Claimants were involved in discussions to become, respectively, the Chairman and Chief Executive Officer of 888. On 14 July 2023 the Defendant instituted a review of 888’s operating licences under s.116(2)(c)(ii) of the Gambling Act 2005 (“the Licence Review”).[5]The Claimants’ claims arise out of two publications:(i) a Regulatory News Service (“RNS”) update published by 888 on 14 July 2023; and(ii) a statement published by the Defendant on 22 March 2024 which referred to the Licence Review being terminated.[6]The Claimants’ case is that the information concerning them in the two publications, relating to their being the subjects of the Licence Review investigation, was private and confidential, in reliance on ZXC v Bloomberg LP [2022] UKSC 5, [2022] AC 1158; that the Defendant was responsible for the disclosure of this information in relation to both publications; and that the Claimants have suffered unquantifiable financial and reputational harm as a result.[7]The Defendant contends that the publications did not contain private or confidential information and that ZXC is inapplicable; and that disclosure was justified by the Defendant’s duties under s.116 of the Gambling Act 2005 and the public interest. It is also said that 888 effected the first publication in accordance with its own duties; that the second was only published to a small group and that the Claimants were not readily identifiable in it; and that the Claimants cannot prove damage.[8]The Claimants’ claims are listed for trial over 5 days commencing on 8 December 2025 (“the civil trial”).[9]The context in which the Defendant’s Licence Review arose included Operation Incendiary, a criminal investigation by His Majesty’s Revenue and Customs (“HMRC”) and the Crown Prosecution Service (“CPS”). This was an investigation into the operations of GVC Holdings Limited (“GVC”), which later became Entain Plc (“Entain”), in Turkey between 2011 and 2018. It was also an investigation into the Claimants, who had had held senior positions in GVC: the First Claimant had been a non-executive director and then non-executive chairman between 2004 and 2020, and the Second Claimant was the CEO from 2007 until 2020.[10]The Defendant engaged with HMRC and the CPS regarding Operation Incendiary and received intelligence concerning GVC and its former employees. The Defendant’s position is that it had an interest in receiving this information to the extent that these individuals were, and were connected to, licensed individuals and businesses which it regulated. One of its statutory objectives under s.1(a) of the Gambling Act 2005 is “preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime”.[11]The criminal investigation into Entain led to a Deferred Prosecution Agreement (“DPA”), relating to alleged offences under s.7 of the Bribery Act 2010, for the failure of a commercial organisation to prevent bribery. The conduct which formed the basis of the DPA was set out in a Statement of Facts. Under the DPA, Entain agreed to pay a financial penalty plus disgorgement of profits totalling £585 million, a charitable donation of £20 million and costs of £10 million.[12]Sharp LJ, President of the King’s Bench Division, sitting at Southwark Crown Court, approved the DPA by an order dated 5 December 2023 (“the Entain order”). The order included an RRO, postponing reporting of the DPA hearing until the conclusion of any criminal proceedings against “Relevant Individuals” named in the Statement of Facts. It also included provisions postponing publication of the Statement of Facts and the full judgment setting out the court’s reasons for approving the DPA, for the same duration.[13]On 28 August 2025 the CPS announced that the Claimants and several other former directors and/or executives of Entain had been charged with conspiracy to defraud and conspiracy to bribe in relation to the provision of gambling services in Turkey between 2011 and 2018. There are ten defendants in total. Two of the defendants other than the Claimants are said to be relevant to the issues in this claim. The Claimants both deny the charges. The trial of these charges is due to start on 14 February 2028 (“the criminal proceedings”).[14]By an application notice dated 12 November 2025 the Defendant seeks an RRO. The order sought would postpone publication of any report of the civil trial until after the return of the last verdict in the criminal proceedings, to the extent that any reporting refers to: “a) the contents of the Investigation Documents; b) the contents of the CPS 2019 Case Summary; and c) any other details relating to the investigation or prosecution of Operation Incendiary disclosed in [the civil] proceedings”.[15]The “Investigation Documents” comprise around 60 pages of material. This, together with the CPS 2019 Case Summary, was provided to the court for the purposes of determining the application in a “closed” bundle. The Defendant did not serve the closed bundle on the Claimants, because HMRC and the CPS had made disclosure of it conditional on the obtaining of the RRO, as explained in further detail in the section commencing at [25] below.

The law relating to RROs

[16]The Contempt of Court Act 1981, s.1 sets out the “strict liability rule”, meaning the rule of law that conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.[17]Its application to the reporting of proceedings is addressed at s.4 thus: “4. Contemporary reports of proceedings(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose”. (1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. (2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose”.[18]The leading authority on s.4(2) orders is In re British Broadcasting Corporation [2018] EWCA Crim 1341, [2018] 1 WLR 6023 (“In re BBC”). Lord Burnett CJ, giving the judgment of the Court of Appeal, made the following general observations about the approach to be taken to applications for reporting restrictions:
“(1) General points 20. Before attempting to distil the principles that emerge from the authorities we make some general observations. 21. Applications for reporting restrictions (not limited to section 4(2) postponement orders) are subject to specific provisions in Crim PR rr 6.4 and 6.5. Unless unavoidable, those rules must be followed. Rule 6.4(3) provides that a party who seeks any form of reporting restriction must: (i) apply for the order “as soon as reasonably practicable”; (ii) notify every other party to the case and any other person that the court directs, and (iii) explain what power the court has to make the order and why an order in the terms proposed is necessary. 22. In section 4(2) cases, the explanation for why the order is necessary needs to address, clearly (and ordinarily in writing): (i) how contemporaneous fair and accurate reports of the trial will cause a substantial risk of prejudice? and (ii) why a postponement order would avoid the identified risk of prejudice? 23. Judges must be on their guard against applications which are advanced at the last minute or without proper consideration of the principles in play. On many occasions, the application for the reporting restriction will either be supported or at least unopposed by the other party. Although a reporter may be in court (as was the case here) he or she is unlikely to be in a position instantly to advance considered submissions in response to an application. It is when these factors, individually or collectively, are present that the court must be most vigilant to ensure that an application for reporting restrictions receives careful consideration. 24. Applications of this sort are generally advanced on behalf of a defendant. In the absence of any submissions from the media, judges are entitled to look to the prosecution for assistance, whose duty it is to ensure that the court is aware of the relevant legal principles: Ex p News Group Newspapers Ltd [2002] EMLR 9, para 25, per Lord Bingham of Cornhill CJ. Judges can also consider whether the application for the reporting restrictions could be adjourned and notice of the application given to the media (pursuant to a direction under rule 6.4(3)) so that they have the opportunity of making submissions if they wish.”
[19]At [27], the Court emphasised the importance of judges giving “careful scrutiny” to any application for an RRO, noting at [28] that the general application of the very strong common law principle of open justice has the result that cases in which an RRO is sought are “relatively rare”. This, the Court said, in itself “exemplifies the importance of all concerned proceeding with caution only after a careful examination of the underlying principles”.[20]At [29], the Court addressed the open justice principle as follows: “29. When dealing with applications for reporting restrictions, the default position is the general principle that all proceedings in courts and tribunals are conducted in public. This is the principle of open justice. Media reports of legal proceedings are an extension of the concept of open justice… vi) Reporting restrictions orders are…derogations from the general principle of open justice. They are exceptional, require clear justification and should be made only when they are strictly necessary to secure the proper administration of justice: Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 at [10]; they are measures of last resort: In re Press Association [2013] 1 WLR 1979 at [13] per Lord Judge CJ. vii) Any derogation from open justice must be established by clear and cogent evidence: Scott -v- Scott [1913] AC 417, at 438–439 per Viscount Haldane LC; Practice Guidance (Interim Non-disclosure Orders at [13]”.[21]At [30] the Court set out the staged approach to be taken to an application for an order under s.4(2) as follows:
“30. A clear articulation of the approach to be adopted is to be found in the judgment of Longmore LJ in Ex p The Telegraph Group plc [2001] 1 WLR 1983, para 22 (which was approved by the Privy Council in Independent Publishing Co Ltd [2005] 1 AC 190, para 69). (i) The first question is whether reporting would give rise to a substantial risk of prejudice to the administration of justice in the relevant proceedings: see para 32 below. If not, that will be the end of the matter. (ii) If such a risk is perceived to exist, then the second question arises: would a section 4(2) order eliminate it? If not, there could be no necessity to impose such a ban. On the other hand, even if the judge is satisfied that an order would achieve the objective, he or she would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so, it could not be said to be “necessary” to take the more drastic approach: Ex p Central Television plc [1991] 1 WLR 4 , 8D–G, per Lord Lane CJ. (iii) If the judge is satisfied that there is indeed no other way of eliminating the perceived risk of prejudice, it still does not necessarily follow that an order has to be made. The judge may still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being “the lesser of two evils”
. It is at this stage that value judgments may have to be made as to the priority between the competing public interests; fair trial and freedom of expression/open justice: Ex p The Telegraph plc [1993] 1 WLR 980 , 986B–C.”[22]In addressing the “substantial prejudice” concept within the first stage, the Court held as follows:
“31. The word “substantial” in the section does not mean “weighty”
. It means “not insubstantial” or “not minimal”: Attorney General -v- News Group Newspapers [1987] QB 1, at 15D-E per Lord Donaldson MR; Re MGN Limited at [15] per Lord Judge CJ. 32. It is important to focus on what prejudice it is said would be occasioned by the reports sought to be postponed. In most cases, no possible prejudice to the immediate trial could arise from the publication of contemporaneous reports of the trial itself (at least so much of the proceedings that take place in front of the jury) having regard to: i) the fact that the jury will have themselves seen and heard the evidence or submissions that are the subject of the report; ii) the express directions given to jurors at the start of a trial (see Criminal Practice Directions 2015, paragraph 26G and now also given to all juries in writing) (a) to try the case on the evidence presented during the trial; (b) not to carry out any research themselves; and (c) to ignore any media reports that they may see of the case they are trying; and iii) the principle that the Court must proceed on the basis: a) that juries have “a passionate and profound belief in, and commitment to the right of a defendant to be given a fair trial” and their integrity “is an essential feature of our trial process”; juries will abide by the directions of the trial judge, not only because they are directions of law that they must follow, but because they will “appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair”: R -v- B at [31] per Sir Igor Judge PQBD; ex parte Telegraph plc at 987E-G per Lord Taylor CJ. (We note these statements are borne out by the evidenced-based conclusions of the Law Commission in their 2014 Report “Contempt of Court (2): Court Reporting” (Law Com No.344) paragraph 2.30(3) that “jurors find the trial process absorbing, and significantly prioritise what they hear during the trial over what they might have heard from the media outside of the trial”); and b) that media reports of the trial (1) will be “responsible, fair and accurate”: Sherwood at [9] per Longmore LJ; and (2) will not include (or link to) any prejudicial material the publication of which would be a breach of the strict liability rule under sections 1 and 2 of the 1981 Act. This last point bears emphasising. Journalists and their editors will strive to avoid any publication which risks putting them in breach of the strict liability rule. They are well used to ensuring that on-line reporting of a trial does not refer to earlier prejudicial material or contain links to that material.”[23]At [34], the Court expressly considered the situation of sequential trials, thus:
“34. Even in the more typical cases of sequential or connected trials, where a section 4(2) order is made in the first trial to protect the second trial or retrial, the judge must still consider carefully the nature of the prejudice that is relied upon to justify the order. Where the following trial will take place some months after the first, it must be demonstrated convincingly that the risk of prejudice is substantial (or that an order is necessary), having well in mind: (a) that the jury in the following trial must be taken to be willing and able faithfully to discharge their duty (see para32(iii)(a) above), and (b) the established “fade factor” (the effect of the lapse of time between publication and trial) that applies in news cases. In terms of jurors remembering publicity about a trial or the people involved in it, the “staying power of news reports is very limited”: In re C (A Child) (Private Judgment: Publication) [2016] 1 WLR 5204, para 30, per Lord Dyson MR (but cf Ex p The Telegraph Group plc [2001]1 WLR 1983, para 31 in respect of very high-profile cases).”
[24]The substantive and procedural requirements for an RRO were recently addressed by the Divisional Court in R (on the application of Marandi) v Westminster Magistrates’ Court [2023] EWHC 587 (Admin); [2023] 2 Cr App R 15, per Mostyn J, thus:
“85. In summary… i) An application for a RRO must be accompanied by clear and cogent evidence, which demonstrates that without the order, justice could not be done. The evidence must be admissible. A non-expert opinion expressed in a solicitor’s letter is not likely to be worth the paper it is written on. ii) Save in situations of great urgency, an application for a RRO should be served no fewer than 3 clear days before the hearing. iii) A draft order should be served at the same time. iv) It would be good practice to notify the media through PA Media’s Injunctions Applications Alert Service. That service is subscribed to by all the national media (newspapers and broadcasters) with the exception of the Financial Times. If notice has to be served on the FT it needs to be served on it directly. v) It would be good practice to permit the press to attend the hearing of the application and to make submissions either through an advocate with rights of audience or in writing. vi) Where the evidence is incomplete and findings have not been made, the better course, if the court is satisfied that anonymity should be granted, may be to make a temporary RRO with a return date or other provision for the matter to be reconsidered before finalising the public judgment or shortly following its hand-down. vii) The order, whether temporary or final, should delineate its extra-territorial effect and provide for the press and any other affected person to have liberty to apply. viii) If the order made is a final order it should provide for an end-date. 86. It is only by observance of these standards that fairness, and therefore justice, will be afforded to all parties, and to society at large, on an application for an order which would have the effect of derogating from the core constitutional principle of open justice.”

Events leading up to the making of the RRO application

[25]The Claimants were highly critical of the Defendant for only making the RRO application in mid-November, a matter of weeks before the trial is due to start. The Defendant contended that it had sought to progress matters as quickly as possible, but that the process of seeking the views and agreement of HMRC and the CPS had been a complex and lengthy one. It is therefore necessary to set out the events leading up to the making of the RRO application in a little detail.[26]On 13 December 2024, the Defence was filed. The Claimants’ solicitors sought disclosure of various documents referred to in the Defence. One such request was for “correspondence and/or call notes by which the [Defendant] was ‘in close dialogue with HMRC regarding its ongoing investigation’…”. The “close dialogue” phrase was taken from the first publication sued upon, which was quoted at [9.2] of the Defence.[27]On 17 January 2025, the Defendant’s solicitors responded to the requests for disclosure. The response to the request summarised in the preceding paragraph was to the effect that the correspondence and/or call notes were not “mentioned” in the Defence for the purposes of CPR 31.14, and that: “In any event, the content of any dialogue with HMRC regarding the relevant investigation is clearly sensitive, as well as irrelevant to the issues in play in the present case. The inspection of any documentation in that regard would simply not be necessary for the fair disposal of the action”.[28]By 11 July 2025, the Defendant considered that there were, in fact, some documents arising from the HMRC investigation which “may be relevant to the claim” and thus fall within its legal obligations regarding disclosure. These were both documents received from HMRC and documents internal to the Defendant, which referred to and/or reproduced information derived from HMRC documents. On that date, the Defendant wrote to HMRC informing it of the intention to disclose the said documents to the Claimants. The Defendant referred HMRC to the disclosure deadline of 28 July 2025, seeking a response to the letter by 15 July 2025.[29]On 17 July 2025 HMRC responded, stating that it could not consent to disclosure at that stage. HMRC observed that only a sample of the documents had been provided; and identified that the CPS should be consulted because the CPS 2019 Case Summary (referred to in some of the correspondence as the “2019 Intelligence Report”) emanated from them and was clearly marked “not to be disclosed without the permission of the CPS”. HMRC also referred to the Entain order dated 5 December 2023.[30]On 23 July 2025, the Defendant contacted the CPS, seeking its views on disclosure of the 2019 Intelligence Report and indicating that it envisaged “a confidential bundle [being] used at trial”.[31]On 24 July 2025 the CPS responded, indicating that it could not consent to disclosure of the 2019 Intelligence Report because(i) matters were still at a pre-charge stage and disclosure of the names of the suspects and detail of the investigation as at 2019 which was set out in the Intelligence Report might impact on a live investigation and the fairness of any subsequent prosecution; and(ii) the 2019 Intelligence Report mirrored, in part, the contents of the DPA Statement of Facts. It was suggested that permission for disclosure of the 2019 Intelligence Report be sought from the President of the King’s Bench Division, in order to protect the integrity of the HMRC investigation, the fairness of any future criminal proceedings and the third party rights of others.[32]On 25 July 2025, HMRC responded in a similar vein, also observing that the documents that had been shared contained within a file described as “Documents to be withheld” appeared to represent only a “subset” of material shared by HMRC with the Defendant in relation to Operation Incendiary. On the same day the Defendant’s solicitors began the process of seeking to agree redactions to the relevant documents with HMRC and the CPS.[33]On 28 July 2025, the Defendant communicated to HMRC its decision “to withhold the documents… for now”, while observing that it was “certain that this position will be challenged by the Claimants” since “sensitivity/ intelligence documents (and/or lack of specific consent from a third party) are not a default justification for withholding any documents from a disclosure process in litigation”. It went on to observe that the matter was urgent and might need to be addressed over the vacation because witness statements were due and “the Claimants might argue they cannot do this without certain evidence being provided”.[34]On 29 July 2025, HMRC’s in-house lawyer emailed the Defendant stating that “[a]t present my client has not been told what parts of the documents you say are relevant to the [civil] proceedings and why”.[35]On 12 August 2025, the Defendant set out its proposed approach to redactions to the documents in letters to both HMRC and the CPS.[36]On 2 September 2025, the Defendant followed up on its proposals in light of the charges against the Claimants, asserting that it “must find a final resolution” on the withheld documents “as quickly as possible”.[37]On 26 September 2025, HMRC wrote, on its own behalf and that of the CPS, to the Defendant, indicating that as the investigation was now at the charging stage, they had both been able to revisit the points raised in previous correspondence in terms of disclosure and redactions. The letter confirmed that HMRC and the CPS were now in a position to agree to the disclosure of the criminal investigation documents and the CPS 2019 Case Summary in the redacted form, subject to the Defendant obtaining an RRO to avoid the risk of prejudice to the criminal proceedings. HMRC confirmed it had no objection to the names of three individuals being unredacted.[38]On 30 September 2025, the Defendant responded to HMRC seeking to understand what reporting restrictions were sought; and proposing to disclose the material “with the agreed redactions and to make an application”. It said it would “notify the claimants of the detail of the application” and asserted that it wanted to agree an approach which “does not delay our client’s compliance with the disclosure rules”.[39]On 16 October 2025, the CPS wrote to the Defendant to this effect: “I can confirm that the reference to reporting restrictions in [the] letter of 26 September 2025 related to restrictions obtained under s.4(2) [of the] Contempt of Court Act 1981… The CPS position is that publication of any report referring to or detailing the contents of the CPS 2019 Case Summary (if that document is read out or referred to in proceedings held in open court in the case of Lee Feldman and Kenneth Alexander v Gambling Commission) should be postponed under s.4(2) until after the criminal proceedings are concluded”.[40]The letter stated that neither HMRC nor the CPS at that stage intended to attend any hearing where such an order was sought.[41]On 24 October 2025 the Defendant sent a draft s.4(2) order to HMRC expressing concern about the fact that disclosure of these documents had been delayed and informing it that it intended to disclose the documents in the redacted form to the Claimants on 28 October 2025. The draft RRO only related to postponement of any report referring to or detailing the contents of the CPS 2019 Summary as it was understood that that was the only document that raised concerns with HMRC and the CPS.[42]On 28 October 2025 HMRC wrote stating that(i) it could not agree to such disclosure, requesting further time; and(ii) that neither HMRC or the CPS could agree to the proposed wording for the s.4(2) order which was “inadequate”; indicating that prosecuting counsel would propose some wording.[43]On 30 October 2025 HMRC wrote to the Defendant stating that the CPS and prosecuting counsel had reconsidered their position on the proposing suggested wording for the draft RRO and on reflection did not consider it appropriate for them to provide proposed wording. They nevertheless indicated that it was the view of the CPS and HMRC that the proposed wording was not drawn widely enough; and was potentially in contempt of the Entain order, noting that there were now live criminal proceedings.[44]In its response on 31 October 2025, the Defendant emphasised that it was “keen to disclose the redacted documents ahead of the witness evidence deadline”, having previously noted that the Claimants were being deprived of these documents prior to finalising their witness statements.[45]On 5 November 2025, HMRC wrote to the Defendant’s solicitors in relation their proposed redactions. It went on to address the scope of the draft s.4(2) order sought as follows:
“Our agreement remains conditional on a reporting restrictions order being sought and successfully obtained as Simon explained in his letters of 26 September and 16 October. Our position is that the terms need to cover both the CPS and the HMRC material and to go beyond that to include anything in your proceedings which has the potential to affect the ongoing criminal proceedings. Therefore, our request is that an order is put in place under section 4(2) of the Contempt of Court Act 1981 postponing until the conclusion of the criminal proceedings any report of any part of your proceedings which concerns the HMRC investigation or CPS prosecution. This would include the information in the attached bundle and the 2019 CPS case summary but would extend beyond those specific documents to include any reference to the criminal offending alleged and the HMRC investigation into it. This is on the basis that it is necessary to avoid a substantial risk of prejudice to the administration of justice in the criminal proceedings by contaminating the jury members so that the defendants would be unable to receive a fair trial”
[emphasis added].[46]On 12 November 2025 the Defendant provided a copy of the application notice and draft RRO to HMRC.[47]On 13 November 2025, the Defendant informed the Claimants that the RRO application had been made and served them with it. The Defendant indicated that the “closed” bundle which had been filed with the court would be provided to the Claimants “once the RRO is approved by the Court”. The letter stated that the documents in the “closed” bundle “fall under CPR 31.6(a), being documents which are relevant to the issues in the claim, formed part of the material taken into account by our client at the material time, and are documents which our client wishes to rely upon as a result”; and “[w]e do not consider that these documents adversely affect the Claimants’ case or support the Claimants’ case”. The Defendant sought an indication of whether the Claimants considered that “the wording of the RRO [was] inadequate (having seen the documents in disclosure and our client’s witness statements” and if so, why.[48]On 14 November 2025, the Defendant’s solicitors wrote to the Claimants’ solicitors, indicating that they were “concerned that no steps are taken in the civil proceedings which are contrary to or inconsistent with” the Entain order. They enclosed a draft letter to Sharp P, suggesting that it would be helpful if the judge conducting the PTR and the parties in the civil proceedings could be provided with a copy of the Statement of Facts. The Defendant’s solicitors said they were prepared to undertake to treat the Statement of Facts as confidential and only to use it for the purpose of the civil proceedings and asked the Claimants’ solicitors if they would be willing to provide the same undertaking. The Claimants’ solicitors responded promptly explaining their position that neither access to the Statement of Facts nor the undertaking were necessary.[49]The same day, both solicitors wrote to Sharp P. The Claimants’ solicitors questioned the relevance of the Statement of Facts to the issues in these proceedings.[50]On 18 November 2025, Sharp P responded by letter, refusing the Defendant’s solicitor’s request. In her view there was “no basis for concluding it is either necessary or appropriate to vary those terms to enable the Gambling Commission or its counsel in these civil proceeding to see the Statement of Facts”. She referred in her reasons to the fact that HMRC and the CPS had agreed disclosable documents concerning the criminal investigation could be disclosed in these proceedings, subject to the RRO.

The evidence in support of the application and the hearing of it

[51]The evidence in support of the application comprised the contents of Box 10 of the application notice, a bundle of the relevant correspondence between the Defendant’s solicitors and HMRC/the CPS reflecting the events set out in the section commencing at [25] above, the closed bundle and the CPS 2019 Case Summary.[52]The application was heard at the PTR on 20 November 2025. Although representatives from HMRC or the CPS attended, they made no submissions. Rather, the application was advanced solely by the Defendant. There was no opposition to the proposed RRO from the press, as explained at [62]-[66] below. However, the Claimants vigorously opposed the application.

Compliance with the procedural requirements

[53]The legal framework set out at [16]-[24] above makes clear that there are rigorous procedural requirements for the making of an RRO application. It is therefore necessary to determine whether they have been complied with here.[54]The authorities emphasise that RRO’s require “clear justification” and must be supported by “clear and cogent evidence”: In re BBC at [29 vi)] and 29 vii)]. The evidence must be not only clear and cogent but admissible; and a non-expert opinion expressed in a solicitor’s letter is not likely to suffice: Marandi at [85 i)].[55]Against that background, and bearing in mind the complexity and sensitivity of this particular RRO application, it was surprising that it was not supported by a signed witness statement from either the Defendant or a representative of HMRC or the CPS. The Divisional Court was critical in Marandi of an applicant for an RRO relying primarily on solicitors’ correspondence and yet that is what the Defendant did here.[56]That said, there is no bright line rule that an RRO application must be supported by evidence in any particular form, albeit that it should “ordinarily” be in writing: In re BBC at [22]. Box 10 of the application notice had been completed by the Defendant’s solicitor, and was supported by a statement truth in the usual way. The documentation relied on in addition to Box 10 was also extensive. Accordingly, the Defendant has strictly complied with the procedural requirements for evidence in support of the application.[57]Marandi at [85 ii)] makes clear that unless there is great urgency, applications for RROs should not be made at the last minute. Rather, they should be served no fewer than 3 clear days before the hearing. When read in the context of the full judgment in Marandi it is clear that “the hearing” for those purposes is the hearing which the RRO would seek to restrict reporting of.[58]Here, the Defendant’s application was served on 13 November 2025 and so more than 3 clear days ahead of the start of the trial on 8 December 2025, such that the requirement in Marandi at [85 ii)] was satisfied. It was also served more than 3 clear days ahead of the PTR at which the application itself was to be heard.[59]However, in addition to this minimum requirement set out in Marandi, the Court of Appeal made clear in In re BBC at [21] that an applicant for an RRO should make it “as soon as reasonably practicable”. The Claimants contended that the Defendant had breached this requirement.[60]Mr Sherborne submitted that the Defendant had been aware since 23 July 2025 that the documents were considered relevant to the claim, and disclosable; had known from 26 September 2025 that HMRC required a RRO to be “attached” to the documents before they could be disclosed; was aware on 13 October 2025 that it needed to submit the s.4(2) application, and on 24 October 2025 of the potential for its delay in doing so to jeopardise the trial date; knew from 30 October 2025 onwards that HMRC sought a wider order than the one contemplated; and knew from 5 November 2025 of the terms of the order sought. The Entain order and the existence of the Statement of Facts has been in the public domain since as long ago as 5 December 2023. Against that background it was said that the delay in making the application, without warning to the Claimants, was inexcusable.[61]I cannot accept that submission. While it is regrettable that the RRO application was made so close to the trial date, the detailed correspondence between the Defendant, HMRC and the CPS shows that the process of reaching an agreement as to disclosure and the wording of a draft RRO was complex. Part of the reason for the complexity is that the Defendant is not the prosecuting authority in the criminal proceedings and neither HMRC or the CPS are parties to the civil trial, yet all three agencies were trying to reach an agreement that would ensure, in essence, the fairness of both sets of proceedings. I am therefore satisfied in these circumstances that the Defendant did make the application as soon as reasonably practicable.[62]The Defendant had alerted the press to the making of the application and the date and time of the hearing of it through the Injunctions Applications Alert Service. Only The Telegraph engaged with the application before the hearing. The Telegraph objected to certain parts of the original draft. After discussion a revised draft RRO was provided, to the effect set out at [14] above. The wording of an RRO in this form was agreed as between the Defendant, HMRC/the CPS and The Telegraph.[63]Unlike the apparent position at the time of Marandi (see [4] thereof), it is understood that Sky News is now notified of applications of this kind via the Alert Service. The Financial Times does not subscribe to the Alert Service, as recorded in Marandi at [85 iv)]. Accordingly, the Defendant informed them of the application directly, in advance of the hearing.[64]I checked during the hearing whether any representative of the press had attended to make submissions and none had.[65]I have not been made aware of any representations on the proposed order from any press organisations in the period of time between reserving and handing down judgment. In any event, the draft order includes provision granting liberty to apply to any media organisation who seeks to have the order reconsidered.[66]Accordingly, the requirements of press involvement set out in In re BBC at [24] and Marandi at [85 iv) and v)] have been met.[67]The Defendant provided a draft order with the application, and the revised version provided shortly before the hearing contained a territorial jurisdiction provision and a liberty to apply provision. The requirements of Marandi at [85 iii)], [vii)] and [viii)] were therefore met.

Preliminary observations on the application

[68]Before considering the three-stage approach set out in In re BBC at [30], it is necessary to address certain unusual and complicating features of the application, not least as some of these matters formed part of the Claimants’ reasons for contending that the application should not be granted.[69]First, RRO applications are generally advanced on behalf of a defendant to criminal proceedings: In re BBC at [24]. In contrast, here,(i) the stated purpose of the RRO is to protect criminal proceedings but the application is made by neither the prosecution nor the defence in those proceedings; and(ii) two of the defendants in that trial, namely the Claimants in these proceedings, oppose the making of the RRO.[70]The Claimants contended that in presenting the concerns of HMRC and the CPS to the court, the Defendant had become a “proxy” for their interests and it was unclear why the Defendant had allowed this to happen. I respectfully disagree: it is tolerably clear that, rightly or wrongly, HMRC and the CPS regarded it as the Defendant’s responsibility to secure the RRO so that they could comply with their disclosure obligations in the civil claim; made clear that they had no intention of attending the hearing of any RRO application; and thus left the Defendant with little choice other than to act as it has.[71]Although this aspect of the application rendered it unusual, the wording of s.4(2) is silent as to the “standing” of a person to make an application under it. Marandi itself is an example of a non-party making a s.4(2) application: the Claimant was neither a party to the forfeiture proceedings nor a witness in them, but simply had some connections with the Defendant. There was no suggestion in Marandi that this was inappropriate. Moreover, the Defendant on this application had been entirely transparent in providing the court with the extensive correspondence it has had with HMRC and the CPS, which makes clear how the application, and the various parties’ positions on it, has developed.[72]Second, due to the position taken by HMRC and the CPS, the making of the RRO has become inextricably linked with the issue of whether the Defendant will comply with its disclosure obligations in the civil proceedings.[73]The Claimants contended that the Defendant was, at the behest of HMRC and the CPS, illegitimately seeking to make the fulfilment of its disclosure obligations conditional on the court making an order which affects the unrelated issue of the reporting of the proceedings generally. Further, it was said that the application sought was fundamentally confused; and that its two limbs (relating to the documents and reporting more generally) were in reality separate and ought to have been pursued separately.[74]The Defendant has not pursued any separate application in relation to the Investigation Documents or the CPS 2019 Case Summary, such as an application to withhold disclosure on the grounds of the public interest, under CPR 31.19. This was, I suspect, because it was hoped that disclosure to the Claimants of those documents could take place if the RRO was granted, making the proceedings more transparent than withholding the documents entirely. If that is right, it is to be commended.[75]Further, the Entain order makes clear that an RRO can specifically prevent reporting of a document referred to in proceedings: there, it was the Statement of Facts.[76]Third, it is clear that the Defendant has changed position on the question of the relevance of the criminal investigation to the civil trial.[77]On 17 January 2025, the Defendant resisted disclosure of documentation relating to it on the explicit basis that “the content of any dialogue with HMRC regarding the relevant investigation is…irrelevant to the issues in play in the present case…[and]…[t]he inspection of any documentation in that regard would simply not be necessary for the fair disposal of the action”.[78]However, on 31 July 2025, the Defendant contended that the “documents may be relevant (in whole or part) to the issues in these proceedings” and had “formed part of the disclosure review”. By the time of the PTR, the Defendant’s position was that the material relating to the criminal investigation was not only relevant but that the Defendant would not be able to fairly defend the claims without being able to rely on it.[79]I was told that the reason for the change of position on the relevance issue was that certain documents were identified as potentially relevant when the disclosure exercise was being conducted. I did not find this very persuasive, as the Defendant’s position on 17 January 2025 was broadly stated, to the effect that whatever documents existed within this category, they could not be relevant.[80]However, having now seen the Defence, the witness statements filed on behalf of the Defendant and the “closed” bundle, I can see why the Defendant considers the documents to be relevant. In summary, they at least arguably provide a context for and help explain the reasons why Defendant decided to make the disclosures which form the basis of the Claimants’ claims. The “closed” bundle contains material dating back to 2019, but also includes correspondence and documents more temporally proximate to the disclosures at the heart of this claim dated 14 July 2023 and 22 March 2024.[81]That said, the relevance of the criminal investigation and the closed material should not be overstated. The Defendant has been able to file a detailed Defence and serve comprehensive witness statements in defence of the claim without direct reference to it.[82]The Defence refers at [9.2] to the Defendant’s “close dialogue with HMRC regarding its ongoing investigation” but that is merely a quote from the first publication sued upon and so is already material in the public domain.[83]The witness statement of Andrew Rhodes, the Defendant’s Chief Executive Officer, runs to 76 paragraphs, and references the criminal investigation only once at [35]. There, he explains that, as at 7 July 2023, he knew that the Claimants were suspects in the investigation and that a charging decision was going to be made, he thought imminently. Similarly, the witness statement of James Cooper, a Manager in the Defendant’s Enforcement Team, references the criminal investigation in a small number of paragraphs in his 37 paragraph statement. At [20], he states that, on 4 July 2023, a colleague shared with him information from HMRC concerning the criminal investigation. At [20]-[31], he describes being informed about who the suspects were in the criminal investigation and the actions taken in response to that.[84]Ms Mansoori KC indicated that if the RRO is made, further witness evidence will be provided to amplify [20] of Mr Cooper’s statement, but it is not anticipated that this will be extensive. Given the fairly limited coverage of the criminal investigation in the Defence and current witness statements, and the relative brevity of the “closed” bundle and the CPS 2019 Case Summary, that indication appears likely to be accurate.[85]Fourth, although the draft order refers at clause (a) and (b) to the reporting of the contents of the closed bundle and the CPS 2019 Case Summary, the Defendant’s submissions made clear that there were other documents within the disclosed material and other aspects of the witness evidence which would fall within clause (c) of the order, as they also included “details relating to the investigation or prosecution of Operation Incendiary”. The Claimants understandably expressed concern at how workable clause (c) would be if the order was made. This in turn depended on how large the category of material to which clause (c) applies was.[86]I have not seen the disclosed material and so cannot form a conclusive view about the extent of the disclosed material to which clause (c) would apply, but was assured by Ms Mansoori KC that there were not many documents in this category. That seems consistent with the matters set out at the end of [84] above.

The merits of the application

[87]I have reminded myself of the need to give “careful scrutiny” to any application for an RRO, bearing in mind the very strong common law principle of open justice, which remains the default position; and that RROs are exceptional and should be made only when they are strictly necessary to secure the proper administration of justice: In re BBC at [28] and [29].[88]I reiterate that it would have been preferable for this application to have been supported by witness evidence which addressed each aspect of the three-stage approach set out in In re BBC at [30] which I consider below. In the absence of such a statement I have taken into account the contents of Box 10 of the application notice, the bundle of relevant correspondence between the Defendant’s solicitors, the closed bundle, the CPS 2019 Case Summary and the comprehensive written and oral submissions from both counsel.[89]The first question is whether reporting of the aspects of the civil trial covered by the draft RRO would give rise to a substantial, namely a “not insubstantial” or “not minimal”, risk of prejudice to the administration of justice in the subsequent criminal proceedings: In re BBC at [30 (i)] and [34].[90]In my judgment there is some force in Mr Sherborne’s contention that the stated position of HMRC and the CPS in correspondence at times merely repeats the statutory test set out in s.4(2) and does not address in detail how contemporaneous fair and accurate reports of the trial will cause a substantial risk of prejudice, as required by In re BBC at [22].[91]However, when seen in the context of all the evidence provided by the Defendant, it is clear that the stated views of HMRC and the CPS on the need for a s.4(2) order have been reached after a detailed consideration of the closed bundle, mindful of the statutory test and with an acute awareness of the sensitivities of the criminal proceedings. HMRC and the CPS are the relevant investigative and prosecuting bodies. They, and prosecuting counsel who has also been consulted, are best placed to understand and assess the risk of substantial prejudice in the criminal proceedings. Their evidence is to be distinguished from the non-expert view relied on in Marandi. They have reached the view that not only is there such a risk, but that it is of such a nature that the closed bundle cannot be disclosed to the Claimants in the civil proceedings without an RRO being in place.[92]Moreover, there is support for the position adopted by HMRC and the CPS on this application from the extensive RRO included in the Entain order. It is not clear on the face of the order whether the CPS applied for the RRO or whether Entain did, but Sharp P was plainly satisfied that the relevant legal principles justified the order, either in circumstances where the parties agreed that that was the case or after hearing argument on the application. The order restrains reporting until the end of the criminal proceedings of the hearing that led to the DPA save for some limited aspects of it, the Statement of Facts and the court’s full judgment approving the DPA.[93]There are plainly connections between the RRO in the Entain order and the RRO sought here, because both seek to avoid prejudice to the criminal proceedings which have now commenced against the Claimants and others: for the avoidance of doubt, those are the criminal proceedings referred to in the Entain order.[94]More specifically, the CPS made clear on 24 July 2025 that the 2019 Intelligence Report mirrors, in part, the contents of the DPA Statement of Facts. Accordingly, contemporaneous reporting of the 2019 Intelligence Report in these proceedings, in the absence of an RRO, together with further details from the “closed” bundle and matters referred to in clause (c) of the draft order, may well undermine the Entain order.[95]Further, Sharp P saw no reason to vary the Entain order on 18 November 2025 by making the Statement of Facts available to the Defendant. Indeed, she observed, without negative comment, that an RRO could be made in these proceedings.[96]I therefore cannot accept the Claimants’ submission that the Defendant has failed to articulate any nexus between the issues to be raised in the civil trial and the existence of a risk of prejudice to the criminal proceedings. The issues to be raised in these proceedings include, to some degree, the nature of the information provided to the Defendant by HMRC and the CPS; and those agencies are clear that reporting of that information ahead of the criminal proceedings creates a “not insubstantial” or “not minimal” risk of prejudice to the administration of justice in those proceedings.[97]The Claimants have also contended that the documents referred to in (a) and (b) of the draft order appear to relate principally to the investigation into and prosecution of Entain, such that there is little, or only the most limited, nexus between their content and the subject matter of these proceedings. The contents of the “closed” bundle which, of course, the Claimants have not seen, makes clear that it refers in parts to them as individuals, rather than solely to Entain. Further, for the reasons set out at [93]-[95] above there are clear links between this trial and R v Entain, where the existence of a risk of substantial prejudice to the criminal proceedings has already been recognised.[98]Accordingly, I am satisfied that reporting of the aspects of the civil trial covered by the draft RRO would give rise to a substantial risk of prejudice to the criminal proceedings.[99]The second question is whether, if such a risk is perceived to exist, a s.4(2) order would eliminate it.[100]Again, it would have been preferable if this aspect of the test had been specifically addressed by witness evidence focused on the question of why a postponement order would avoid the identified risk of prejudice; and why, without the order, justice could not be done, as required by In re BBC at [22] and Marandi at [85 i)].[101]However, again, on balance, I accept Ms Mansoori KC’s submissions. The correspondence between the Defendant, HMRC and the CPS makes clear that an RRO would eliminate the risk of prejudice and HMRC and the CPS do not consider that there are any lesser restrictions that could eliminate this risk. Again, in R v Entain, Sharp P accepted by her order that this stage of the test was met.[102]If the judge is satisfied that there is indeed no other way of eliminating the perceived risk of prejudice, it still does not necessarily follow that an order has to be made. The judge may still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being “the lesser of two evils”. It is at this stage that value judgments may have to be made as to the priority between the competing public interests; fair trial and freedom of expression/open justice: In re BBC at [30 (iii)].[103]In considering this stage, I accept Ms Mansoori KC’s submission that it is relevant that the draft RRO only relates to one aspect of the trial. The trial will take place in public and the media can attend. The draft order would not prevent contemporaneous reporting of the fact that the Claimants were suspects in the criminal investigation or the fact that they have now been charged with criminal offences, as those matters are already in the public domain. Nor would the draft RRO prevent the media reporting the fact that the Defendant had been in discussions with HMRC and the CPS about the investigation: that fact formed part of the first publication sued upon, is pleaded in the Defence and addressed in the current witness statements, and it was not suggested to me that the RRO would attach to it. Rather, the RRO would postpone reporting of a much more narrow set of facts, namely the detail of what HMRC and the CPS had been told about the investigation.[104]The Claimants advanced a series of arguments to be taken into account at this stage.[105]First, it was submitted that the proposed RRO was calculated by the Defendant to prevent public scrutiny of its conduct and vindication of the Claimants and their privacy rights if their claim succeeds; and/or that that would be the inevitable effect of the RRO. Further, it was said that reporting of the trial would be disembodied and have limited value to the Claimants and the public more widely.[106]I cannot accept either submission. The lengthy correspondence between the Defendant and HMRC/CPS makes clear that it is the latter agencies who first raised the idea of an RRO and made the Defendant’s disclosure of the documents in question conditional on it. Accordingly, there is no proper basis for the suggestion that this application has been driven by the Defendant’s desire to avoid public scrutiny. Nor would that be the effect of any RRO. The proposed RRO only relates to reporting about one relatively distinct issue in the civil trial, namely the detail of the information the Defendant had received about the criminal investigation. The relatively small part this issue has played in the Defence, in the evidence to date and the further evidence anticipated if the RRO is made, as set out at [81]-[86] and [103] above, suggests that it will still be possible for the media to report a very substantial amount of the civil trial.[107]Second, the Claimants submitted that even if there were some risk of prejudice, the application had failed to address the lengthy time between the respective sets of proceedings (December 2025 and February 2028); and that this militated against the making of any order bearing in mind the established “fade factor” described at In re BBC at [34].[108]The Claimants are right to observe that the gap in time between the sequential trials in this case is much longer than the gap of “some months” envisaged in In re BBC at [34]. However, Sharp P was plainly aware of the relevance of the fade factor in making the RRO in R v Entain, almost two years ago; and there is some force in Ms Mansoori KC’s submission that in the internet age the fade factor is perhaps less relevant than in 2018.[109]Third, the Claimants contended that the Defendant’s delay in making the application so late meant that it was likely that the civil trial would need to be adjourned.[110]In my judgement it is far from clear at this stage that the civil trial fixture will be lost. Ms Mansoori KC indicated that as soon as the RRO is made, if it is, the “closed” bundle will be disclosed followed in short order by some limited further witness evidence, to which the Claimants can respond if they wish. They may not need to, as the witness evidence will only address information in the minds of the Defendant’s witnesses. The parties can then work to agree a closed bundle for the trial which will comprise the material in the closed bundle provided for the purpose of determining the application, any material from the original disclosure that falls within clause (c) of the draft order and the further witness statements. This would assist the parties, the judge and the press in reaching a clear understanding of what material in the civil trial was covered by the RRO.[111]The parties are both represented with extensive teams of lawyers, and these tasks do not appear to me to be so onerous that they will necessarily result in the trial being adjourned. Rather, they appear to be akin to the last-minute flurry of activity which often occurs ahead of complex civil trials. If need be, an application to adjourn the trial can be made on or shortly before the trial is due to start on 8 December 2025. I would hope that both parties will co-operate to avoid the need for such an application.[112]In any event, if I was satisfied that the criteria were otherwise met for the making of an RRO in order to avoid a substantial risk of prejudice to the administration of justice in a criminal trial, I would struggle to accept the contention that adjourning the trial of a civil claim brought by two of the defendants elsewhere constituted such a weighty matter in the evaluative exercise at the third stage that it should override the need for an RRO.[113]For all these reasons, I do not consider that the degree of risk identified is the “lesser” of any of the “evils” identified above. In the exercise of my evaluative discretion at the third stage, the draft RRO should be made.

Conclusion

[114]Accordingly, the Defendant’s application succeeds. The draft RRO provided to the court on the morning of 20 November 2025 will be approved, modified to make provision for the order to be served directly on The Financial Times as well as on the press generally via the Alert Service.[115]I reiterate my thanks to all counsel for their considerable assistance with this complex case.

Cited in 2 later judgments