Lee Feldman & Anor v Gambling Commission [2026] EWHC 76 (KB)

[2026] EWHC 76 (KB)Case No 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 Monday 19 January 2026
Before
MRS JUSTICE JENNIFER EADY DBE
Between
LEE FELDMANClaimantsKENNETH ALEXANDERClaimantGAMBLING COMMISSIONDefendant
David Sherborne and Gervase de Wilde (instructed by Slateford Law) for ClaimantsSara Mansoori KC and David Mitchell (instructed by TLT LLP) for DefendantHearing Hearing dates: 9-12 December 2025
Approved Judgment (with redactions)This judgment was handed down remotely at 10.30am on Monday 19 January 2026 by circulation to the parties or their representatives by e-mail..............................Introduction 1-3 The parties 4-6 The relevant regulatory framework 7-11 The evidence Overview 12 Restricted reporting order 13-14 The witnesses 15-18 Billy Roden’s mail box and back-up mail box 19-21 The facts GVC/Entain and the HMRC investigation “operation incendiary”22-25 Entain’s May 2023 RNS 26-28 FSGI and the Proposal 29-33 Initial discussions between FSGI and 888 34-36 The defendant’s concerns: operation rattle 37-43 Media reports regarding the Proposal 44-47 Further discussions between FSGI and 888………………………………………………………..48 Operation rattle and early discussions between the defendant and 888 49-52 Notification of FSGI’s shareholding in 888 and the defendant’s concerns 53-55 888’s request to the defendant for guidance and the defendant’s response 56-67 The defendant’s warning to DCMS ...…………………………………………………………..68-72 Lord Mendelsohn’s questions to FSGI and FSGI’s responses 73-78 888’s further request for guidance from the defendant …………………………………..…..79-81 FSGI’s final responses to Lord Mendelsohn’s questions 82-86 The drafting of the 2023 RNS and events of 14 July 2023 87-91 Mr Rhodes’ view of FSGI’s answers and his response to Lord Mendelsohn 92-96 The decision to undertake a section 116 review and 888’s revised RNS 97-99 Lord Mendelsohn’s contacts with FSGI and the publication of the 2023 RNS 100-104 Official notification of the defendant’s section 116 review ………………………………..…..105 Correspondence after publication of the 2023 RNS 106-107 The deferred prosecution agreement and subsequent events 108-111 The section 116 review 112-120 The defendant’s statement following the March 2024 RNS: the March 2024 statement 121-125 The claimants’ evidence relevant to remedy 126-128 The claim and the questions identified for determination 129-131 The parties’ submissions in summary The claimants’ case 132-134 The defendant’s case 135-137 The legal framework Misuse of private information 138 Overview 138 Stage one 139-146 Stage two 147-149 Breach of confidence 150-152 Responsibility for re-publication 153-156 Procedure 157 Remedy 158-163 Analysis and conclusions Preliminary observations 164-165 The 2023 RNS 166-194 The March 2024 statement 195-208 Remedy 209-216 Disposal 217The Honourable Mrs Justice Jennifer Eady:

Introduction

[1]This is my judgment on the claimants’ claims of misuse of private information and breach of confidence in relation to information published(1) in a regulatory news service (“RNS”) update of 14 July 2023 (“the 2023 RNS”), and(2) in a statement dated 22 March 2024 (“the March 2024 statement”).[2]The publications in question relate to a proposal made by FS Gaming Investments LLC (“FSGI”), an investment vehicle in which the claimants were involved, for the future management of 888 Holdings plc (“888”): “the Proposal”. 888 (now Evoke plc), is an international sports betting and gambling company, regulated in Great Britain by the defendant.[3]It is the claimants’ contention that the defendant, in close co-operation (if not collaboration) with 888, misused their private information and breached their confidence. They seek damages, including aggravated damages, and an injunction. The defendant denies liability. It does not accept the claimants’ characterisation of the content of the publications, and denies that these contained their private or confidential information, or that they have suffered damage thereby; it further contends that it was not responsible for the 2023 RNS (issued by 888), and that the March 2024 statement was a limited reactive publication, in which the claimants were not readily identifiable; in any event, it says there was an overriding public interest in the publications, and any disclosure of private or confidential information was proportionate.

The parties

[4]The claimants are businessmen who, prior to their interest in 888, had been involved in GVC Holdings Limited (“GVC”), which later became Entain plc (“Entain”), an international sports betting and gambling business.[5]Mr Lee Feldman is an American lawyer, with a career in corporate law and private equity investment; he was a non-executive director and then (from 2008) non-executive chairman of GVC between 2004 and 2020. Mr Kenneth Alexander is a chartered accountant, and was the chief executive officer (“CEO”) at GVC from 2007 until 2020. Over the period of the claimants’ involvement with GVC, it had transformed from an AIM-listed company worth £26 million to a FTSE 100-listed company, worth in excess of £4 billion.[6]The defendant is a non-departmental public body; it is a body corporate established by section 20 of the Gambling Act 2005 (“the 2005 Act”), sponsored by the Department for Digital, Culture, Media and Sport (“DCMS”). At all relevant times, the defendant’s chief executive was (and is) Mr Andrew Rhodes. The defendant is responsible for regulating gambling in Great Britain; it licences individuals and businesses offering gambling services in this jurisdiction.

The relevant regulatory framework

[7]The defendant’s powers are defined by the 2005 Act, as amended by the Gambling (Licensing and Advertising) Act 2014. Although having a wide discretion when exercising its functions (Greene King Brewing Ltd v Gambling Commission [2017] EWCA Civ 372, paragraph 44), by section 22 of the Act, the defendant has a duty to pursue, and have regard to, the licensing objectives specified at section 1, and to permit gambling insofar as reasonably consistent with those objectives; the licensing objectives include preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime.[8]The defendant regulates by licence. Section 65 of the 2005 Act empowers the defendant to issue operating licences; section 80 provides that the defendant must ensure that, in respect of each operating licence, at least one person must occupy a specified management office and hold a personal licence authorising the performance of the function of the office. A person who has the overall management and direction of a licensee’s business or affairs must themselves hold a personal management licence (“PML”). In making an application for a PML, the applicant must disclose any convictions and must provide such other information as the defendant might direct (sections 69 and 128). In considering a licence application, the defendant is required to have regard to the licensing objectives, and to form, and have regard to, an opinion of the applicant’s suitability to carry on the licensed activities (sections 70 and 128). As the defendant’s licensing, compliance and enforcement policy statement advises, a broad approach is adopted to the question of suitability, which may include shadow directors, controllers of the applicant, and/or ultimately beneficial owners, even if they are not likely to exercise a licensing function themselves. The defendant’s statement of principles (issued pursuant to section 23 of the 2005 Act) further makes clear that the question of suitability will be assessed on an ongoing basis, and will “be reconsidered in the light of any subsequent criminal activity or connection with such activity” (paragraph 5.3).[9]Under the defendant’s licence conditions and codes of practice (section 24 of the 2005 Act empowers the defendant to issue codes of practice), licensees must notify the defendant of key events that could significantly impact on the nature or structure of their business; in the case of corporate licensees with a share capital, the defendant must be notified of any person who takes on a holding of more than 3% of the shares issued (paragraph 15.2 of the code of practice). Section 102 of the 2005 Act deals with the position where the operating licence is held by a company limited by shares when there is a “change of corporate control” (“CoCC”), which will arise where a person becomes a controller of the company within the meaning of section 422 of the Financial Services and Markets Act 2000; that is, a person who owns at least 10% of the shares and/or voting power in an undertaking (including when acting in concert with another). In such circumstances (or in anticipation of such circumstances), it is provided that the company shall inform the defendant and either surrender its operating licence or apply for a determination that the licence will continue to have effect. Where such an application is made, section 102(3) of the 2005 Act requires the applicant to provide such information as the defendant may direct about the new controller and their interest in the company, although, if made in anticipation of a CoCC, section 103(4) provides that the defendant shall “have regard to normal commercial practices in relation to the confidentiality of information”.[10]By section 116 of the 2005 Act, the defendant is able to undertake a licence review in a wide range of circumstances, but, before commencing such a review, it is required to notify the licensee, inform them of the procedure to be followed, and afford them the opportunity to make representations (and may afford such opportunity to others). Following a section 116 review, the defendant has a range of powers: it can issue a warning, attach an additional condition to a licence, remove or amend an existing condition, suspend or revoke the licence, or impose a penalty. Section 120 sets out conditions for suspending or revoking a licence, which include the unsuitability of the licensee.[11]The defendant’s publicity code (again issued under section 24 of the 2005 Act), emphasises the need for openness and transparency (paragraph 7.1), but provides that, in deciding on publicity in enforcement cases, the defendant will consider the public interest, fair hearing rights, and the right to privacy under article 8 of the European Convention on Human Rights (“ECHR”), limiting the release of information about on-going criminal or regulatory investigations unless in the public interest (paragraph 7.4). Specifically, the publicity code says the defendant will only publicly announce an investigation in exceptional circumstances, where, given the potential prejudice to those under, or likely to be under, investigation, it is desirable, e.g. to maintain public confidence, or where the matters under investigation have become the subject of public concern, speculation, or rumour (see paragraphs 7.5-7.8). The evidence Overview

The evidence

[12]I heard oral evidence from both claimants, and, for the defendant, from Mr Rhodes, Mr James Cooper (a manager in the enforcement team), and Mr Benjamin Glass (senior communications manager). Each witness provided their evidence in chief in the form of a written statement, and that evidence was tested at trial by way of cross-examination. Documentary evidence was provided in six bundles, with some additions during the course of the hearing.

Restricted reporting order

[13]After an earlier hearing before Hill J on 26 November 2025, a restricted reporting order was made under section 4(2) of the Contempt of Court Act 1981 in respect of documents relating to on-going criminal proceedings; the reasons for that order are set out in Hill J’s judgment, reported under neutral citation reference [2025] EWHC 3117 (KB). A separate bundle of documents falling within the terms of that order was referred to at trial (“the RRO bundle”); this included additional witness statements from Mr Rhodes and Mr Cooper.[14]To the extent evidence contained within the RRO bundle forms part of my reasoning, that is set out within a closed judgment, subject to the reporting restrictions laid down in Hill J’s order. This is the open version of my judgment, in which references to evidence contained within the RRO bundle have been redacted.

The witnesses

[15]On the whole, I accept that each witness sought to provide me with a genuine account of their perspective of the relevant events. [REDACTED][16][REDACTED][17]The defendant submitted that Mr Feldman’s credibility was also undermined by the inaccurate information he provided regarding what he said had been his PML. On this point, I do not think Mr Feldman deliberately sought to mislead: that would not make sense as he knew the defendant would be able to check this, and I accept his evidence that he genuinely believed he had had a PML and had forwarded the correct information. [REDACTED][18]As for the defendant’s witnesses, I found all three to be straightforward in their evidence. For the claimants it is submitted that Mr Rhodes was “an unhelpful witness, whose evidence gave every sign of being scripted and carefully rehearsed”; I disagree. Mr Rhodes had obviously prepared for his appearance as a witness, and was keen to ensure he got his points across, but this suggested he took his evidence seriously; it did not undermine his credibility. The claimants criticise what are said to have been Mr Rhodes’ “repetitive incantations of the regulatory framework and guidance”, but I find that the regulatory framework and guidance informed Mr Rhodes’s views and actions throughout, and his testimony in this respect was entirely consistent with his contemporaneous correspondence.

Billy Roden’s mail box and back-up mail box

[19]During the disclosure process, the defendant notified the claimants that the mail box and back-up mail box for the email account of Mr Billy Roden, Mr Rhodes’ private secretary for part of the time covered by the claim, had been deleted. It was explained that Mr Roden had left the defendant in December 2023, and his mail boxes were deleted in October 2024, that decision having involved the defendant’s data protection officer, head of IT and facilities, head of information compliance, and senior information risk officer. Although the defendant was on notice of the proceedings before the claim was served on 1 November 2024, that was not communicated to those involved in this decision, or to the IT team more generally; the data protection officer and the senior information risk officer were only notified of the litigation on 6 December 2024, and, even then, were not informed of any inboxes requiring preservation as a result.[20]For the claimants it is objected that Mr Roden was a key figure during events relating to the 2023 RNS, and they say the defendant’s explanation is inadequate and the court cannot be certain its disclosure is complete; to the extent there are gaps in the evidence, they submit that adverse inferences should be drawn. The defendant says, however, that it has fully investigated, and provided a detailed explanation of the deletion; it points out that a full search against Mr Roden’s name has been made across other relevant email accounts, and voluntary third party disclosure obtained from 888; Mr Rhodes’ evidence was that he was “as confident as it is possible to be” that all documents had been disclosed.[21]It was wrong that Mr Roden’s mail box was deleted; the defendant was on notice of the claim and ought to have taken better steps to secure this data. That said, no application was made for third party disclosure against 888 in relation to any communications to/from Mr Roden, and I have found no indication of any gaps in the documentary evidence resulting from this error. I cannot see that the defendant has (or could have) derived any advantage from the deletion of Mr Roden’s mail boxes, and I draw no adverse inference in this regard. The facts GVC/Entain and the HMRC investigation “operation incendiary”

The facts

[22]On 28 November 2019, GVC/Entain received a production order from His Majesty’s Revenue and Customs (“HMRC”), which required it to provide information in respect of a Turkish-facing online betting and gaming business formerly operated through one of GVC’s subsidiaries. The order related to the years 2011 to 2017 (when the subsidiary was sold); during this period Mr Feldman had been GVC’s non-executive chairman, Mr Alexander its CEO.[23]Mr Feldman said that, during the time of the claimants’ involvement in GVC, the company engaged in both regulated and “unregulated” gambling, the latter referring to activities in unregulated markets in other countries; he says this was widely known in the industry, and was standard practice for many companies with links to this jurisdiction, as disclosed in the annual reports of the entities concerned. In particular, Mr Feldman says this was known to the defendant, which had notification and disclosure requirements in place for licensees serving markets outside Great Britain, and that, throughout his time on the GVC’s board, he received legal advice (as director/chairman, and in his personal capacity) regarding operations in unregulated markets, including Turkey.[24]HMRC’s investigation into the Turkish operations of the GVC subsidiary proceeded under the code name “operation incendiary”. [REDACTED] After receiving the production order, GVC/Entain made a public announcement of this fact, albeit initially indicating its understanding that the investigation was directed at a number of former third-party suppliers. On 21 July 2020, GVC/Entain made a public announcement that HMRC was widening the scope of its investigation,and was examining potential corporate offending by an entity (or entities) within the GVC/Entain group.[25]Contact was also made between GVC/Entain and the defendant after receipt of the production order. On 30 May 2023, the general legal counsel for Entain emailed the defendant to forewarn it that a RNS the next day would communicate progress in the investigation.

Entain’s May 2023 RNS

[26]On 31 May 2023, Entain duly issued a RNS, entitled “Update on HMRC investigation”, in which it referred back to its earlier announcements and confirmed that the offences under investigation “include, but are not limited to, section 7 of the Bribery Act 2010”. The RNS continued:
“[Entain] understands that the HMRC investigation, which is ongoing, includes a review of its former Turkish-facing business and acknowledges that historical misconduct involving former third party suppliers and former employees of the Group may have occurred.”
Going on to announce that Entain was seeking to conclude a deferred prosecution agreement (“DPA”) with the CPS (subject to judicial approval), the RNS explained this was likely to include “a substantial financial penalty”.[27]Entain’s RNS of 31 May 2023 thus included (for the first time) an acknowledgement of possible “historical misconduct” on the part of former employees. This gave rise to concerns within the defendant, with the senior manager for enforcement, Mr Dean O’Connell, observing (in an email at 7.45 am on 31 May 2023) that:
“... licensees are required to inform us of any criminal investigation by a law enforcement agency in any jurisdiction (which they previously have) and any event that could have a significant impact on the nature or structure of a licensee’s business – I would say especially where the [defendant] might have cause to question whether the Licensee’s measures to keep crime out of gambling had failed – which this statement indicates could have occurred ....”
And, in an internal email sent at 8.14 am that day, Mr Rhodes identified the need to obtain further information about “former employees” of GVC/Entain:
“... What might be relevant now, is the mention of people in the company. I would like to know if any of them are current or previous PML holders. It is possible that the ‘former’ employees referred to are PML holders elsewhere. I am not sure how likely that is, but we need to know either way. Can you ask the question?”
[28]There was significant media reporting relating to the information contained within the RNS. An article appeared in the Financial Times the same day, relating that HMRC’s investigation had “been handed over to the Crown Prosecution Service” and referring to negotiations for a DPA “likely to result in a “substantial financial penalty””. Similar articles appeared in the Racing Post and on iGB (an industry-focused online news service), referring to Mr Alexander by name, and stating he had “stepped down as CEO [of Entain]” “[d]ays before the investigation was announced” (Mr Alexander’s evidence was that he had been thinking of retiring for some time; the production order was just one of a number of factors influencing his decision to leave).

FSGI and the Proposal

[29]Meanwhile, during May and June 2023, through the FSGI investment vehicle, the claimants had joined together with others (some of whom had previously been connected with GVC/Entain), to purchase shares in 888. Mr Feldman, contributing $2,750,000, held 13.63% of the shares in FSGI; Mr Alexander, contributing $2,650,000, held 13.13%.[30]888 was one of the largest betting and gambling companies in Great Britain, and in July 2022 had purchased the British bookmaker William Hill. By May 2023, however, it was seen as doing less well. The claimants considered this was due to the debt 888 had taken on (to purchase William Hill) and problems in its management; Mr Rhodes pointed to the fact that it had had to pay large fines, imposed by the defendant, in 2017 (£7.8 million) and 2022 (£9.4 million). It was, in any event, common ground that 888’s share price had fallen, its former chief executive had left the company in early 2023, and its chair, Lord Jonathan Mendelsohn, was acting as interim CEO until a replacement could be found.[31]The building up of FSGI’s shareholding in 888 took place in stages. On 5 May 2023, its ownership reached 3.33%, which 888 reported by way of a key event notification to the defendant; on 12 May 2023, FSGI notified 888 that its share ownership had reached 4.42%; on 5 June 2023, FSGI notified 888 that it had entered into a voting agreement with another investor, which increased its voting rights to 6.57%. The other investor was a Mr Shay Segev, a former CEO of Entain, having taken up that role as the successor to Mr Alexander.[32]The claimants’ apparent interest in 888 soon attracted media attention, with an article appearing in the Financial Times, on 6 June 2023, under the heading “Investor group including Kenny Alexander takes punt on 888”, reporting:
“An investment vehicle backed by a host of former board directors of gambling group GVC, including onetime chief executive Kenny Alexander, has taken a 6.5 per cent stake in William Hill owner 888, spotting an opportunity in the bookmaker’s low share price. [FSGI] has also received the backing of GVC’s former chair Lee Feldman and Shay Segev, Alexander’s successor ... ... Shares in [888], which was ejected from the FTSE 350 index earlier this year, were up 14 per cent ... following the disclosure. ... The investor group has yet to meet 888 management but is likely to push for a speedier integration between 888 and William Hill to drive down costs, and could request a board seat for Alexander or Feldman, according to two people familiar with the matter. ... Alexander’s involvement in the investment vehicle marks his first venture into the betting industry since his surprise exit from GVC in 2020 when he announced his retirement after 13 years as chief executive, where he gained the reputation as a towering figure in the industry. His departure was overshadowed by UK tax authorities launching an investigation into corporate wrongdoing and bribery at GVC’s former Turkish subsidiary...”
[33]The claimants have accepted that, as FSGI built up its interest in 888, there were discussions as to the roles they might take in the company, and a proposal that Mr Feldman would take up a non-executive position (possibly chairman), and Mr Alexander would become CEO (“the Proposal”). The claimants say, however, that this was just one option; others included putting someone else (such as Mr Segev) in as CEO, or working to secure a takeover by another company. They point out that the Proposal never came to fruition, nor did they get to the stage of making applications for PMLs (a necessary step if they were to hold the positions envisaged); they remained passive shareholders, never received any non-public information, and did not have the necessary shares to call for an extraordinary general meeting (888 is incorporated under the law of Gibraltar and, by section 195(1) Gibraltar Companies Act 2014, an EGM can only be called by members with one-tenth of the share capital or voting rights).

Initial discussions between FSGI and 888

[34]On 7 June 2023, Mr Feldman and Mr Daniel Shribman (a third party connected with the building up of FSGI’s stake in 888) had a (remote) meeting with Lord Mendelsohn and Mr Vaughan Lewis, 888’s chief strategy officer. Mr Feldman followed that meeting with an email to Lord Mendelsohn, acknowledging their frank conversation, and emphasising:
“...we’re good guys and mean what we say. We’re simply focused on building a valuable business for shareholders where people are treated fairly and excited to show up. Our experience and track record is more than a bunch of slides, and we would appreciate the opportunity to sit down with you next week and discuss in more detail. ... we are practical investors and operators, and we are happy to work with you to find the best solution for the shareholders, you and the rest of the Board. ...”
[35]Lord Mendelsohn responded on 8 June, in positive tones, albeit observing there were “a lot of issues to deal with here”.[36]In preparation for further discussions, contemporaneous emails make clear the FSGI investors were alive to the importance of shareholder support and of the need to address concerns regarding the HMRC investigation into GVC/Entain, with strategic advice being given (in an email of 13 June 2023), as follows:
“. Have a share register to hand and a sense of where you have support. ... he [Lord Mendelsohn] should be left in no doubt that a lot (the majority?) of shareholders would be supportive of the plan, as evidenced by the share price. You can def count Artemis and Abrdn in that camp given our prior conversations with them. The implicit threat is that you could call an EGM to evidence that support. Moreover, you have a ‘fan club’ that are not currently 888 shareholders but have inbound you saying they would like to back you if you are driving the bus. . I would impress some urgency on him ... . He [Lord Mendelsohn] might not know all of the facts and chronology around the Turkish fines for Entain, which seems to have been misreported in some of the papers. It may be worth putting his mind to rest that there is no taint to the team and no outstanding investigations etc; as a Public co Chair, he will be nervous of making any mis-steps.”
Responding the same day, Mr Feldman described these as “Good points”.

The defendant’s concerns: operation rattle

[37]The defendant had noted media speculation regarding the interest in 888 on the part of investors who had previously been involved with GVC/Entain; internal emails from 7 June 2023 (copied into Mr Rhodes) evidence concerns about this.[38][REDACTED][39][REDACTED][40][REDACTED][41][REDACTED][42][REDACTED][43]An internal email of 14 June 2023 recorded that these matters were to be taken forward by the defendant’s enforcement casework team, under the name “operation rattle”. The claimants say this demonstrates an acknowledgement that the information later disclosed in the 2023 RNS was private. I return to this point below, but I accept Mr Cooper’s explanation that this was the defendant’s name for HMRC’s investigation into GVC/Entain and what was perceived to be a “connected proposed takeover of 888 by former Entain individuals”; the codename was used because of the criminal aspect to HMRC’s investigation.

Media reports regarding the Proposal

[44]Meanwhile, reports appeared in the press relating to the Proposal. On 12 June 2023, The Racing Post published an article headed “Speculation links ... Kenny Alexander to top job at 888 Holdings”, which referred to an industry newsletter earlier that week (Earnings+More) having reported that FSGI:
“... was pushing to have Alexander appointed as 888’s chief executive, with Morana becoming chief financial officer. Earnings+More claimed the move would be independent of any appointment of a new chief executive by the 888 board. ... Alexander ... was chief executive of GVC for 13 years, building it into one of the giants of the gambling industry ... . He left the company in 2020, shortly before it was announced that [HMRC] had widened an investigation into GVC’s former online gambling operation in Turkey. David Brohan, gaming and leisure analyst at stockbroker Goodbody, said the potential appointments at 888 would be well received. He added ...: “The one concern we would have with regards to Mr Alexander’s possible appointment would be whether there are any possible risks from the ongoing HMRC Turkish investigation that could impact him personally. However, there is no doubting the wealth of experience that both appointments would bring to 888.” ...”
[45]On 18 June 2023, The Daily Telegraph’s chief business correspondent, Mr Oliver Gill, reported that Mr Alexander was “preparing to launch a boardroom coup against [888] if his attempt to cease [sic] control is rejected”, saying:
“... Mr Alexander, a gambling industry veteran who ran ... Entain until 2020, took a surprise stake in 888 earlier this month and has presented the board with proposals to install himself as chief executive and his close ally as chair. Talks are currently continuing between the rebel investors and the board on a “friendly” basis, City sources insisted. But amicable dialogue could yet turn hostile. Mr Alexander’s coalition, known as [FSGI], are thought to be unwilling to walk away if management rejects their proposals. [FSGI] took a surprise 6.6 pc stake in 888 earlier this month. Mr Alexander a well-known figure within the industry, has teamed up with two former allies from Entain, which was known as GVC while he was in charge. Lee Feldman, GVC’s former chairman, and Steve Morana, a former non-executive, are both involved in the [FSGI]. Their push is also understood to have the support of former GVC chief executive Shay Segev. American hedge fund raider Parag Vora took advantage of 888’s bombed out share price by increasing his stake in 888 to more than 5pc last week. Mr Vora is said to be supportive of Mr Alexander’s plans. As well as installing Mr Alexander as chief executive, the rebel investors are thought to want to remove chairman Lord Jonathan Mendelsohn from the 888 board and install Mr Feldman. However, Lord Mendelsohn ... is understood to have the support of 888’s largest shareholder, the ... Shaked family. The 888 board and the Shakeds are said to also harbour concerns about Mr Alexander taking over at the helm as ... criminal proceedings rumble on against his former employer. Entain, the new name for GVC, recently revealed that it was in talks to negotiate a deferred prosecution agreement with Crown Prosecution Service that would likely result in a “substantial financial penalty”
. It follows an investigation by [HMRC] into corporate misconduct by GVC’s Turkish arm while Mr Alexander was group chief executive. Sources close to the [FSGI] said the Turkish scandal would have no bearing on Mr Alexander’s potential appointment. ...”[46]Mr Oliver Gill’s article appears to have caused Lord Mendelsohn some disquiet, and he emailed Mr Feldman on the morning of 18 June 2023 describing it as:
“... heavy on threat with the insinuation that you are preparing to go hostile and effect a coup at a UK plc.”
[47]Mr Feldman responded the same day, distancing FSGI from Mr Oliver Gill’s article, saying this was “definitely not “our” piece”.

Further discussions between FSGI and 888

[48]On 19 June 2023, Mr Feldman and Mr Shribman met Lord Mendelsohn and Mr Lewis in New York, and, on 22 June 2023, another FSGI investor and former GVC director, Mr Stephen Morana, met Lord Mendelsohn at his private office. Discussions continued, with drafts of a board memorandum for 888 being shared with Messrs Feldman and Shribman on 27 and 28 June 2023, setting out the Proposal from FSGI, as follows:
“[FSGI] is eager to take senior leadership positions in [888] to deliver [888’s] existing, publicly stated strategy and integration .... [FSGI’s] Proposal is for the following individuals to be appointed to [888’s] Board of Directors and take the following roles: - Chairman: Lee Feldman - CEO: Kenny Alexander - CFO: Stephen Morana ...”
The memorandum went on to refer to FSGI’s statement that “numerousshareholders” had expressed enthusiasm about this potential involvement.

Operation rattle and early discussions between the defendant and 888

[49]Investigations had continued under operation rattle, and, on 19 June 2023, the defendant posed a series of questions to 888 relating to “the investment by the Kenny Alexander led group”; that generated a response on 20 June 2023.[50]The following day, 888’s chief risk officer, Mr Harinder Gill, sent an email to Mr Rhodes, referring to the defendant’s questions and to “recent press coverage” regarding FSGI and “links to Kenny Alexander and others”, saying that he and 888’s executive chairman, Lord Mendelsohn, would welcome a meeting about this.[51]A response to Mr Harinder Gill’s email was sent by Mr Rhodes’ then private secretary, Mr Roden, and a meeting arranged for Thursday 29 June 2023. In advance of that meeting, on 26 June 2023, an investigator from the operation rattle team advised Mr Roden that there were further questions regarding FSGI’s investment in 888, in particular, of what was said to be a proposal for Mr Alexander to be installed as CEO and “his close ally as chair”. On the same day, the defendant’s enforcement team raised further questions with 888.[52]The claimants’ case has been advanced on the basis that there was collusion between senior officials within 888, such as Lord Mendelsohn, and the defendant, and that the latter allowed itself to be used by 888 to thwart FSGI’s interest. The initial discussions between 888 and the defendant were, however, arranged after the latter had raised questions relating to 888’s notification of FSGI’s shareholding and media reports of Mr Alexander’s involvement. Concerns within the defendant had arisen prior to any contact by 888: initially, after Entain’s RNS of 31 May 2023, as to former GVC/Entain employees who might be operating with PMLs (see the early morning emails of Messrs O’Connell and Rhodes on 31 May), and then after media reports of the Proposal (evidenced by the commencement of operation rattle). At the same time, 888’s licence conditions required it to inform the defendant of key events that could significantly impact its business. Given this context, I draw no adverse inference from the fact that Lord Mendelsohn wanted to meet with the defendant; this was consistent with the strategic advice FSGI was receiving in mid-June 2023, acknowledging the nervousness Lord Mendelsohn would feel as chair of a public company, given the ongoing HMRC investigation and the need for regulatory assurance regarding the Proposal.

Notification of FSGI’s shareholding in 888 and the defendant’s concerns

[53]On 27 June 2023, 888 emailed FSGI’s solicitors in relation to its notification to the defendant of FSGI’s shareholding and voting rights; it explained this was in compliance with a condition of its gambling licence, and had led to “more detailed, follow up questions” relating to FSGI’s shareholding, in particular given the defendant’s “ongoing consideration of the suitability of licensees”.[54]Also on 27 June 2023, the defendant’s executive director operations, Ms Kay Roberts, wrote to the deputy director organised crime in HMRC’s fraud investigation service, referring to the announcement by Entain regarding the DPA negotiations, and expressing the defendant’s concerns, specifically regarding issues of suitability arising from the Proposal:
“... From previous engagement we understand HMRC are preparing a bundle of evidence relating to individuals, which it anticipates will be submitted to CPS in mid-July. HMRC colleagues would not confirm if former GVC (now Entain) CEO Kenny Alexander was subject of a CPS referral. We are aware of a Financial Times article which indicates Kenny Alexander is part of an investor Group which has purchased a 6.5% stake in ... 888 and he may soon take up a senior Board position. Given Mr Alexanders’ [sic] previous status in Operation Incendiary, and that he might be subject to a CPS referral, his involvement in a significant share purchase of a substantial licensee raises concerns regarding the suitability of this investment and potentially of 888 itself. We have now been formally notified of the share acquisition and we cannot delay acting in relation to this issue. There are serious and far-reaching consequences of the Commission being unable to establish if Mr Alexander is subject of a HMRC CPS referral. There are compelling indications that Mr Alexander will be installed as CEO of 888. As the Commission would have no contrary information to rely on, we may have no option but to approve this appointment. As a result, an unsuitable individual could be installed as CEO of one of world’s largest international gambling companies. If it was later disclosed that Mr Alexander was indeed a subject of the investigation and found in any way culpable for the offences committed while he was CEO at GVC the Comision would be required to act. This could lead to the revocation of 888’s licence and open the Commission to criticism for delay and inaction. The revocation of 888’s licence could easily lead to the collapse of the company and also protracted legal action. We would need to explain what action we had taken, and why Mr Alexander had been allowed to occupy a position of influence when he was in fact either a suspect in an investigation, including possible offences under the Bribery Act, or where it had been conceded by his former employer, or indeed Mr Alexander, that his actions were clearly unacceptable. We have requested this information and in not providing it HMRC are potentially preventing the Commission from regulating in line with our licensing objectives.”
[55][REDACTED] 888’s request to the defendant for guidance and the defendant’s response[56]On the morning of 29 June 2023, Lord Mendelsohn and Mr Gill met Mr Rhodes and Mr Roden. Lord Mendelsohn referred to media reports regarding FSGI and the Proposal, noting this was happening quite quickly and there were various issues and uncertainties, including the “HMRC matter”. Other than saying the defendant had engaged with HMRC, Mr Rhodes did not provide further information, but, as the meeting note records, confirmed he would be happy to clarify the defendant’s publicly available licensing process and guidance.[57]On 30 June 2023, Lord Mendelsohn wrote to Mr Rhodes referring to the questions the defendant had posed after 888’s notification of FSGI’s increase in share ownership and control, and recording:
“As you will know [FSGI] is seeking to appoint associated persons to the 888 Board and Executive. Some of these people were involved during the time that is covered by Entain Plc’s most recent statement on an ongoing HMRC investigation. We are looking into the relevance and circumstances of these matters.”
Lord Mendelsohn stated he would write to the defendant the following week, with a formal request for guidance on the regulatory implications of the Proposal.[58]On 3 July 2023, Lord Mendelsohn met Mr Alexander for lunch, with a follow up email the next day. He made no reference to his communications with the defendant or to the HMRC investigation.[59]Meanwhile, the defendant’s regulatory team was seeking further detail from 888 regarding media reports of the Proposal, asking what changes were being considered and what stage discussions had reached. On 4 July 2023, 888 responded, providing a list of meetings with various FSGI representatives (essentially as summarised above), and details of the Proposal, as follows:
“... [FSGI] has requested that the Board consider the appointment of Kenny Alexander as CEO, Stephen Morana as CFO and Lee Feldman as Chair, with all three being appointed to the Board of 888 Holdings PLC.”
[60]Lord Mendelsohn met again with Mr Rhodes on 4 July 2023, and wrote on 5 July, seeking guidance on the regulatory implications of FSGI’s interest in 888. The letter referred to the defendant’s licence conditions and code of practice, acknowledging that 888 was required to work with the defendant in an open and cooperative way, and inform it of any matters it would reasonably need to be aware of in exercising its regulatory functions; emphasising:
“... we take these matters extremely seriously and are seeking to understand the ... issues as they relate to 888 and its regulatory obligations, while appreciating that there is asymmetry of information, not least for the understandable reason that these are matters under review of potential prosecution and criminal sanction.”
Lord Mendelsohn then posed a series of questions relating to questions of suitability, CoCC scenarios, and likely timescales; in particular he asked:
“3. Does the Commission’s position on an individual’s suitability extend beyond whether or not that individual has a criminal conviction? What is the consequence if an individual was a person of interest in relation to an ongoing investigation by a government body? 4. As part of our internal due diligence, what questions do you think we should reasonably be asking of [FSGI], ... in the circumstances of the HMRC investigation ...? 5. With respect to any responses we may receive from [FSGI] to the above questions, from a regulatory perspective, what guidance would the Commission give to 888 to verify the responses received? Would the Commission be interested to see the responses? 6. If a PML application for an individual appointed as 888 CEO is rejected by the Commission, what are the consequences for 888 ...? What is the impact on the individual? 7. Are there any steps that 888 could take to mitigate those consequences? Are there any actions the individual could take?”
And:
“12. If 888 shareholders pass a resolution to appoint a person to the Board that is associated with the HMRC investigation ..., how would that impact the Commission’s view of the suitability of 888 to carry out licenced activities?”
[61]On 7 July 2023, Lord Mendelsohn emailed Mr Shribman (copied to Mr Feldman) a series of questions relating to the Proposal under the headings “Management Team and Personnel” and “Proposed Compensation Structure”. He raised no questions as to potential regulatory issues arising from the HMRC investigation.[62]Also on 7 July 2023, Mr Rhodes responded to Lord Mendelsohn’s letters of 30 June and 5 July 2023, albeit making clear that any decisions would have to be made “on an individual basis”, and he was setting out the defendant’s “general guidance” as “relevant to publicly known facts”. In this context, he advised as to the process the defendant would adopt if a new individual was appointed to a relevant position or on a CoCC, explaining that the defendant would be:
“...required to make a decision on the approval of those matters and its only options are to approve or reject. In the event the [defendant] rejects a change of corporate control application, the only course of action is to revoke the licence to operate ...” going on to make the point (emphasis in the original): “... once a change takes place it cannot be reversed. It is incumbent on any licensee appointing a new person into a position of influence and control or initiating any change of corporate control to ensure those persons are suitable, as the [defendant’s] assessment will be thorough and exhaustive. The consequences of having an application declined can be severe.”
[63]As regards the particular circumstances in which 888 was seeking advice, Mr Rhodes referred to what was publicly known of the investigation into the activities of GVC, but said he was unable to share any details relating to the defendant’s ongoing dialogue with HMRC. Emphasising the defendant’s “high regard” for “our statutory objective of keeping crime out of gambling”, Mr Rhodes made clear its enquiries would be “exhaustive”. The letter then went on to set out details from the statutory and regulatory framework, drawing attention to the requirement for a key event notification where there was:
“10. ‘Any investigation by a professional, statutory, regulatory or government body (in whatever jurisdiction) into the licensee’s activities, or the activities of a person in a ‘key position’, where such an investigation could result in the imposition of a sanction or penalty which could reasonably be expected to raise doubts about the licensee’s continued suitability to hold a Gambling Commission licence. 11. Any criminal investigation by a law enforcement agency in any jurisdiction in which the licensee, or a person in a ‘key position’ related to the licensee, is involved and where the Commission might have cause to question whether the licensee’s measures to keep crime out of gambling had failed.”
[64]As for likely timescales, Mr Rhodes made clear the defendant was not required to await an application before acting on concerns, but would consider whether to suspend an operator’s licence at the earliest opportunity, emphasising:
“... we will expect clarity regarding any current, pending or previous investigations. Our enquiries can also extend to persons associated with such application. We would expect any applicant to be open and cooperative, weight would be attached if an applicant fails to be open and cooperative, or incurs repeated delays to providing information. Withholding information would be a strong contraindicator of suitability.”
[65]Should a PML or CoCC application be made, Mr Rhodes set out:
“Some immediate questions we would want to ask in a given scenario whereby relevant individuals connected to the known HMRC investigation seek to apply for a PML or are connected to a COCC application, namely: . have any relevant individuals been subject to an interview under caution, . or a suspect under the HMRC investigation . or any other pending, current and previous investigation.”
Further emphasising that the defendant would expect any applicant for a PML to disclose if they knew they were under investigation, as this would be an important factor in considering suitability. . or a suspect under the HMRC investigation . or any other pending, current and previous investigation.”

. or a suspect under the HMRC investigation

[66]Mr Rhodes recommended that, before acting, Lord Mendelsohn and relevant 888 shareholders should give very serious consideration to the questions the defendant would thus wish to ask on any PML or CoCC application; advising:
“It would seem opportune for any applicant, or operator relevant to such application, to seek to assure itself of these matters before they are to be disclosed to the [defendant] during an application process. It may want to ask what role relevant individuals may have had at the time relevant to the HMRC investigation, have they been subject to an interview under caution or a suspect. We would welcome clarity on these questions before an application is made. ... I will want updates on this matter and ongoing dialogue regarding any further change in circumstances, as appropriate, hereon. It is not my formal guidance/advice, but would seem prudent for any operator relevant to such situation to seek clarity/assurances on the matter from any such prospective applicant.”
[67]At around this time, internal emails indicate the defendant’s awareness of a suggestion that Mr Segev might be appointed as 888’s CEO; an internal enquiry was requested to see if there were any known issues regarding his suitability.

The defendant’s warning to DCMS

[68]On 12 July 2023, Mr Rhodes also wrote to the directors general of the DCMS, saying he wished to make them aware of:
“... a potential course of events that may take place in the coming days regarding one of the largest operators in the GB market.”
[69]Having referred to the HMRC investigation and Entain’s RNS regarding the DPA negotiations, Mr Rhodes provided the following information, noting its sensitivity for the ongoing investigation, for any decisions the defendant might need to make, and for the market (all emphases as per the original):
“It is also widely publicised that individuals linked to GVC (now Entain) at the time and covered by the investigation have been purchasing shares in 888 Holdings Ltd, or are part of an intended leadership change. We have been notified by 888 Holdings that it is the intention of the new shareholders, who have also acquired the voting rights of other shareholders, to impose a new management team at 888 holdings. One CEO they may seek to install is the same individual who was CEO at GVC when the alleged offences took place. Other members of the GVC leadership team at that time are also proposed to be appointed. HMRC has confirmed to us that Kenny Alexander, who was CEO at GVC and is the proposed new CEO at 888 Holdings, has been interviewed under caution and is a suspect in their investigation and is pending a charging decision from the CPS. The Deferred Prosecution Agreement negotiations announced by Entain, along with their statement that they expect to pay a significant penalty, are in relation to alleged offences that took place while Mr Alexander was CEO, and others in the proposed new 888 leadership team were in control functions. This raises very serious questions and concerns about their suitability to hold a licence from the Commission, both in terms of Personal Management Licences and with regard to a Change of Corporate Control. The leadership of 888 Ltd have reached out and sought clarity on our statutory functions and guidance. I have set out quite factually the considerations we would go through, which are all publicly available, and the potential implications if the applicants can not satisfy suitability. I have also suggested questions we would ask, which I suggest any applicant may want to assure themselves of before entering into such processes. The 888 Holdings Board has sought advice on my letter and is fully aware of the very significant risks they, or indeed any licensee, would face if someone deemed unsuitable were to be appointed into a key function, or within a change of corporate control. We are aware that the new shareholders in 888 Holdings have been acquiring further shares to increase their stake. In the event this takes them to the level of a 10% holding, this will automatically trigger a Change of Corporate Control (CoCC) assessment by the Commission. Once triggered, a CoCC cannot be undone and the Commission is obliged by the Gambling Act to make a determination. If the CoCC is rejected then the only option available to the Commission is to revoke the licence to operate. Similarly, if a new CEO or management team were to be appointed, the Commission would again need to immediately assess this. In the event the CEO, for example, is deemed unsuitable we would likely have to suspend the licence to operate for the company. ... The Gambling Commission is required to assess all applications on their merit, but we are also required to act immediately where there are concerns and the test of suitability is an ongoing one. The Commission cannot allow someone who we have reason to believe may not be suitable, or is not suitable, to remain in a key function while we wait for an outcome and we would always take a precautionary approach. We are not obliged to wait for the outcome of application processes before acting on such concerns. In the event that the new shareholders at 888 Holdings move to install the new management team they have proposed to do or initiate a change of corporate control, then the Commission may be faced with little alternative but to suspend 888 Holdings’ licence to operate. It is perhaps unhelpful to speculate on the potential outcomes from such action, but given the size of the company, how much debt it is carrying and the majority of its business being in GB, the loss of its licence could potentially lead to the collapse of the company. ... We have been in regular discussions with 888 Holdings and whilst we cannot disclose what we know of the status of the HMRC investigation to them, it is in the public domain that Entain are in negotiations over a Deferred Prosecution Agreement and that Mr Alexander was CEO at the time and closely involved in these matters. Of course, Mr Alexander will be aware of these things too and is perfectly able to disclose them to the shareholders or Board for their consideration. We have set out some very direct due diligence questions we strongly recommend 888 Holdings and any shareholders seeking to make a change, address before initiating any action that cannot be undone or would require an immediate reaction from the Commission, such as changing members of the management team or initiating a CoCC. It is a matter for the 888 Holdings Board on what action it seeks to take, but it is quite possible they will take steps very soon to guard against the risk to their licence to operate. This may itself result in public attention and/or litigation. I will keep you up to date with developments, though this is moving very quickly. In the event the Commission needs to take regulatory action, it will likely take place very quickly and the consequences will be serious. ...”
[70]Mr Rhodes has explained that, given the HMRC investigation into GVC/Entain, the defendant was receiving advice from leading counsel in relation to the issues arising from the Proposal, and his letters (to 888 and to DCMS) were crafted (with input from the defendant’s in-house legal team) with that in mind. It was his evidence that this period was “quite condensed”, that a “takeover” of 888 by FSGI was “expected to happen, and quickly”, with “a push to install previously senior people from GVC to run 888”.[71]The claimants have expressed scepticism about this description, pointing out that FSGI’s shareholding was insufficient for any “takeover”, that they had always sought to move forward with the agreement of 888’s board, and that a hostile takeover would have been both unprecedented in the gambling industry in this country and entirely contrary to their intentions.[72]I do not, however, consider that these points undermine Mr Rhodes’ evidence. I accept that, given media reports and the information he had received from Lord Mendelsohn, Mr Rhodes understood this was a fast-moving situation, with FSGI building up both its shareholding and its influence in a very short period. Although I cannot say whether Mr Rhodes was correct in seeing (as he did) a link between the Proposal and Entain’s RNS regarding the DPA on 31 May 2023, the coincidence in timing plainly (not unreasonably) influenced his perception of events. There was evidence that the Proposal was popular with shareholders and the documentation makes clear both Mr Rhodes and Lord Mendelsohn considered FSGI’s influence outweighed its direct shareholding and some form of “takeover” was possible, a view supported by detailed media reporting of FSGI’s intentions (see the Telegraph article of 18 June 2023), and apparently shared in the strategic advice given to FSGI in mid-June. A hostile takeover might have been unprecedented, but 888 was facing an unprecedented challenge. One of the largest companies in the sector, it had recently paid two significant regulatory penalties, and had built up a large debt to take over another business, which it now needed to integrate, but had no CEO or CFO in place to lead it. Mr Rhodes’ evidence at trial was entirely consistent with his communications at the time; in particular, his letter to DCMS, which, I am satisfied, he would not have sent unless he genuinely considered he had to provide urgent warning of a real and imminent risk to a significant, publicly listed, business in the UK gambling sector.

Lord Mendelsohn’s questions to FSGI and FSGI’s responses

[73]Returning to the dialogue between FSGI and 888, following receipt of Mr Rhodes’ letter, on the morning of Sunday 9 July 2023, Lord Mendelsohn sent a further email to Mr Shribman (copied to Mr Feldman) with additional questions relating to the Proposal. Under the heading “Compliance”, he asked:
“In relation to the current HMRC investigation into Entain Plc [have] any of the investors, officers or proposed officers (a) been subject to an interview under caution (b) or a suspect under the HMRC investigation or (c) any other pending, current and previous investigation? Please provide full details by individual if relevant.”
[74]Later that day, Mr Shribman emailed a response to the 7 July 2023 questions.[75]On Wednesday 12 July 2023, Mr Feldman (for FSGI) responded to Lord Mendelsohn regarding the additional questions he had posed (emails between FSGI investors in relation to the drafting of this response make clear this was an answer that Mr Alexander had seen and agreed). Addressing the questions posed under the heading “Compliance”, it was stated: “This investigation commenced approximately 4 years ago. Any specific details of the investigation are, of course, confidential and legally privileged, therefore all relevant material disclosures have been made by Entain. Entain has now disclosed that they expect to enter into a Section 7 DPA, which is a corporate offense tied to inadequate procedures. We do not envisage any restrictions for any member of [FSGI]. There are no other relevant compliance matters.” [REDACTED] As he accepted in evidence, Mr Feldman was aware Mr Alexander had been interviewed under caution and was a suspect in the ongoing HMRC investigation. [REDACTED][76]On receiving Mr Feldman’s answers, also on 12 July 2023, Lord Mendelsohn responded, asking for assurances about any “strategic discussions” FSGI might have had with other parties, and, in relation to compliance issues, stating:
“... this answer is inadequate. Given all the roles will require PML’s [sic] these questions are directly relevant (the Chairman must be the Board level sponsor of the improvement plans with the GB Gambling Commission). These questions are an automatic and required basis for the process of selection for the new CEO and will be directly relevant to the ability of anyone to assume their posts. These are not questions that the Board is willing to waive in any circumstances. I know that it will create a hurdle if you are not able to provide clear and comprehensive direct answers to these direct questions. So, I repeat the question. In relation to the current HMRC investigation into Entain Ple are any of the investors, officers, or proposed officers (and specially Lee Feldman, Kenny Alexander, Stephen Morana) (a) been subject to an interview under caution (b) or a suspect under the HMRC investigation or (c) any other pending, current and previous investigation? These should not be difficult answers to provide and will be required in short order to be able to take on position in the company.” further advising: “And I need these answers as soon as possible. Today is preferable, first thing tomorrow at the very latest to make timings work for me to be available to deal with substance on Monday.”
[77]In the early hours of 13 July 2023, Mr Feldman responded by email, saying:
“I will come back tomorrow with answers to your questions which I am sure will put you in a position to have a constructive in person meeting with us on Monday.”
[78]At just after 7:00 am the same day, Lord Mendelsohn replied: “Timing is understood. I am sure its [sic] won’t take too long. It’s largely just a few directly broadly yes or no questions.” 888’s further request for guidance from the defendant[79]By this stage, the evidence makes clear there were serious concerns within 888. Mr Rhodes was aware (as stated in his letter to DCMS) that 888 was taking independent advice on the defendant’s response, and there were a number of contacts from 888 to the defendant over 13 and 14 July 2023.[80]At 8:00 am on 13 July, Mr Harinder Gill contacted Mr Roden, seeking an urgent meeting. Mr Rhodes recalls being told that 888 had asked the questions he had advised that the defendant would want to ask on any application, but the initial response had only referred to proceedings against Entain and did not answer the questions posed. Mr Rhodes explained that he did not see the correspondence from 888 in which the questions were asked, so he did not know how they were framed, but had assumed (wrongly) that 888 would have said these came from the defendant, as the questions it would ask on any PML or CoCC application.[81]It also seems that Mr Gill’s concern was to be able to communicate publicly what 888 had been advised by the defendant, and, accordingly, the defendant’s communications manager, Mr Ben Glass, was brought into a call with 888 that morning. It was Mr Glass’s impression (related in his evidence to me) that 888 was seeking to put out a narrative that the defendant had been “working with them to prevent a takeover by [FSGI]”. In contrast, Mr Glass’s concern was to ensure the defendant’s role was seen in the correct way, that is, as the regulator, providing guidance and advice; as such, his suggestion (as communicated to Mr Roden and to the defendant’s director of communications, Ms Lucy Denton) was that 888 should be told that there would be no complaint if Mr Rhodes’ letter of 7 July 2023 was shared with the press (it was Mr Glass’s view that, as the defendant had advised the content of the letter could be communicated with 888 shareholders, it was already “virtually in the public domain”). That approach was agreed by Mr Roden and Ms Denton, and was communicated to 888, at just after 1pm on 13 July 2023.

FSGI’s final responses to Lord Mendelsohn’s questions

[82]In the meantime, at just after 11.00 am, Lord Mendelsohn chased Mr Feldman for a response to his questions. Later that afternoon, Mr Feldman replied that Mr Alexander and Mr Morana were travelling but would speak that evening and then provide “the answers you need”. Lord Mendelsohn responded:
“Thank you for your message and I appreciate that you are trying to do this expeditiously. But I cannot stress the importance of the answers to this question and the urgency of a clear and direct reply. This is placing me in a very difficult position and putting at risk my capacity to convene the Board and to allow any chance of progress on the other matters we have reviewed on the timetable we were hoping for.”
At 5.44 pm, Mr Feldman emailed, saying he would provide answers “within 2 hours”.[83]At shortly before 8.00pm, Mr Feldman emailed Lord Mendelsohn with FSGI’s response, opening by saying:
“We look forward to seeing you Monday at 8 am” (this referred to a meeting with Lord Mendelsohn, proposed for Monday 17 July 2023). Responding to the question regarding discussions with other parties, Mr Feldman confirmed these had taken place with DraftKings, an American gambling business, where he had a long-standing contact with one of the board members. As for the compliance questions, Mr Feldman responded: “... As long-time executives and Board members in gaming companies, the FS team is well aware that all of these roles will require PML’s [sic]. We obviously would not have taken these meaningful personal stakes, publicly noticed the market and communicated our intent to take active positions in the company with the knowledge this would be scrutinized by the Board and the shareholders without first seeking advice to confirm we will not be restricted from being licensed. The Entain investigation has gone on for almost 4 years, and our understanding is that many people have been interviewed. Several of those who have been interviewed hold PML’s [sic] and serve on PLC Boards. You can not expect that we would publish any confidential information which may also be legally privileged and constitute material non-public information relative to Entain, a FTSE 50 company, to be emailed around to your distribution list. As part of our face-to-face meeting on Monday we are prepared to make our legal advisor available to you, so that there are no further concerns. We would also note that one of the several key executives we have identified to bring into 888 is one of the foremost regulatory experts in the gaming industry who has confirmed our position regarding licensing suitability. We have heard from several investors that 888 representatives have raised this point. These investors who have backed us for many years and are familiar with the state of the Entain investigation quite frankly find this fear mongering outrageous. We obviously can not and will not tolerate any defamatory statements. We look forward to clarifying any outstanding issues in a confidential, private setting on Monday.”
[84]Within 20 minutes, Lord Mendelsohn responded to Mr Feldman, thanking him for his candour regarding the discussions with Draftkings but making clear that the answers to the compliance related questions were insufficient:
“Alas the comments ... have not in any way answered the direct questions and provide no assurance. The questions are very basic and provide the most rudimentary assurance to the Board about their decision making in relation to FS Gaming. It’s the most simple way that we believed we can address these issues so I hope on this occasion it would be possible to provide direct answers; In relation to the current HMRC investigation into Entain Plc are any of the investors, officers, or proposed officers (and specifically Lee Feldman, Kenny Alexander, Stephen Morana) (a) been subject to an interview under caution? Yes or no (it is up to your discretion to provide details) (b) or a suspect under the HMRC investigation? Yes or no (it is up to your discretion to provide details) (c) any other pending, current and previous investigation? Yes or no (it is up to your discretion to provide details) We made this as simple as possible and a very low bar. I would be grateful if you could address these matters. They are exactly the sort of details that are expected to be provided by candidates for senior executive and Board positions. I am sorry to press but I really do need an answer today.”
I am sorry to press but I really do need an answer today.”[85]Later, at 10.25 pm, Lord Mendelsohn again emailed Mr Feldman, stating:
“I will be reviewing the overall position with the Board in the morning. I just wanted to urge you to take my request below as important and a valuable matter to respond to. I assure anything that you can do to respond to these points will be relayed to the Board and a very welcome clarification. I stress that only answers to these questions matter and are the agreed way forward. Alternatives you have suggested are not adequate. But if you don't wish to respond further, I will present your responses so far. I will call you during your morning to relay the Boards view - if it has arrived at one. Please do respond. We have made so much progress.”
Please do respond. We have made so much progress.”[86]Mr Feldman replied about 20 minutes later, as follows:
“Given what is at stake here and what we are offering, I think your approach is unreasonable and really unfortunate. I ask that you read once again what we have written in response. We have offered a constructive and contextual approach to support your fiduciary duties.”

The drafting of the 2023 RNS and events of 14 July 2023

[87]Before Mr Feldman’s response was received, 888 had begun to draft a RNS announcing the termination of discussions with FSGI (allowing for various possibilities in terms of FSGI’s response). At about 7.40 pm on 13 July, Mr Gill forwarded “the almost final RNS” to Mr Roden. The file name suggests this was version 14 of the draft, from which I infer that 888 had undertaken a significant amount of work on the RNS before sending it to the defendant.[88]The defendant did not respond to Mr Gill’s evening email, but the following morning, on Friday 14 July 2023, it received an urgent request from 888 to speak “on a time sensitive matter”. There was an initial conversation between Mr Gill and Mr Roden at 9.00 am, with Mr Gill sending an email in advance, referring to the fact that responses had been received from FSGI, and identifying four possible scenarios for discussion. A short while later, Mr Gill forwarded a draft letter from Lord Mendelsohn to Mr Rhodes; the draft had a date in square brackets of “[30] July 2023” but was forwarded on 14 July; I again infer from this that 888 had already been working on the drafts of the documents it would need to send out if it received responses from FSGI that it considered unsatisfactory. In the draft letter, Lord Mendelsohn explained that, after Mr Rhodes had set out questions the defendant would raise on any PML application or CoCC, he had raised those questions with FSGI. The draft then quoted from Mr Feldman’s response to the questions from the previous evening, requesting:
“... formal advice and guidance for the 888 Board in determining the appropriate course to take with such a response. Specifically, it would be useful to know if these [answers] would satisfy the Commission’s enquiries into suitability and if not, what further action should be taken.”
[89]Before he spoke to anyone from 888, during the morning of 14 July, Mr Rhodes attended a Teams call with colleagues from enforcement and communications, as well as internal and external legal advisers, when there was an urgent discussion about what action the defendant should take, including the possibility of a section 116 review. I accept Mr Rhodes’ evidence that he would not normally be involved in fine detail amendments to documents, but on this occasion 888’s draft RNS was also discussed, and, as shown from the timing of the tracked changes, amendments made to reflect the defendant’s position. Given the significance of the July 2023 RNS in these proceedings, I set out below the relevant parts of the draft, where the defendant made proposed edits, shown as either crossed through (deletions), or underlined (additions) (other emphases are as in the original document); in the draft, 888 is also referred to as “the Group”:
“Following in-depth due diligence including discussions with the GB Gambling Commission, the Board has unanimously concluded that FS Gaming’s proposals are impossible to progress ... The Group requested clarification from FS Gaming in relation to considerations expressed by the GBGC, ... [or commentary from GBGC] The GBGC has made it clear that in these unique circumstances it is incumbent on the Board to should consider the serious risk to its licences given the GBGC’s statutory duties and potential courses of action.whether the proposed applications are consistent with statutory licensing objectives. ... The GBGC has also affirmedexplained that in cases where it is concerned about the suitability of a person or group with an interest or involvement in the management of a licensed operator, it can launch a licence review, and invoke itsexpedited powers to suspend or revoke the operating licence [and made it clear that actions would be expedited in current circumstances]. pending the result of review proceedings. ... As part of its ongoing dialogueadvice, the GBGC confirmed in writing to the Board its key responsibilities and considerations as the regulator of Great Britain. It has also made clear that relevant shareholders should also be cognisant of these considerations: ... . The GBGC affirmed that only suitable applicants will be granted personal licences, and it considers that the existence of an ongoing criminal investigation would be an important factor in considering suitability. that it takes a serious view of applicants (and licensees) who have connections with (including being investigated in respect of) criminal activity; ...”
[90]It was Mr Rhodes’ evidence that the defendant would view a RNS as a matter for the company concerned, and would not comment other than regarding the defendant’s position. Mr Glass – who held the “pen” in making the tracked changes on this RNS – similarly confirmed the defendant’s only concern was to ensure the RNS correctly set out its position. Having considered the changes made, I accept that evidence: the defendant’s amendments were concerned with ensuring its position was accurately recorded (from its point of view), it did not otherwise seek to interfere with 888’s description of events.[91]Subsequent to receipt of Lord Mendelsohn’s draft letter and to the defendant’s internal meeting, but also during the course of the morning of 14 July, Mr Rhodes had a Teams meeting with 888. Mr Rhodes recalls that Mr Feldman’s responses were discussed, and it was intimated the defendant was likely to commence a section 116 review of 888. The final copy of Lord Mendelsohn’s letter was sent to the defendant shortly after 11.00 am (within an hour or so of the Teams meeting). This included FSGI’s initial answers to the compliance questions (of 12 July), as well as the fuller response of 13 July, and Mr Feldman’s final email. Lord Mendelsohn ended his letter as follows:
“It appears to the Board that these responses do not meet our requirements and as such cannot be relied upon for regulatory assurance. I would be grateful if you could confirm if this would be your evaluation of these responses too. In addition, I would welcome any further advice or comment in the light of these responses.”

Mr Rhodes’ view of FSGI’s answers and his response to Lord Mendelsohn

[92]Having considered the responses provided by FSGI, it was Mr Rhodes’ evidence that this did little to assuage his concerns. Acknowledging that “the only real comfort we could have been given was if they were discharged from the HMRC investigation”, Mr Rhodes has said that, even then, there would have been suitability issues given the roles the particular individuals had played at GVC, and FSGI’s responses raised yet further questions in this regard. He could not understand how it could be said that “We do not envisage any restrictions for any member of [FSGI]” or that “There are no other relevant compliance matters”, and he considered the apparent dismissal of 888’s concerns as “defamatory” suggested a “cavalier attitude”, not least as Mr Rhodes was aware (as 888 was not) that Mr Alexander had been interviewed under caution. As for the assertion that a third party had confirmed the position on licensing suitability, Mr Rhodes saw that as “utterly meaningless”, as that would be for the defendant, and he thought it “absurd” to suggest “there would be no issue with bribery and corruption suspects taking up a licence”.[93]Although acknowledging that it may have been incorrect to say there were “no other relevant compliance matters”, the claimants have questioned whether Mr Rhodes could reasonably have viewed FSGI’s responses as he has said. Aware they would need to apply for PMLs if they took up senior positions within 888 (as per the Proposal), they say they were not yet at that stage, and genuinely did not believe HMRC’s investigation would have presented an insurmountable obstacle; after all, they ask rhetorically, why would they (with their extensive experience of the regulatory environment) have invested so much personal capital if they considered their involvement might lead to the outcomes Mr Rhodes outlined? The claimants further contend references to “fearmongering” and “defamatory statements” related to matters other than the compliance questions 888 had posed, and, more generally, that Mr Rhodes ought to have appreciated they would have been unwilling to provide confidential and commercially sensitive information by email (not knowing who might be on the distribution list), instead offering to address these questions in person, with their lawyers present, at a meeting planned for the Monday morning.[94]The difficulty is that the claimants’ case fails to engage with how Mr Rhodes (and the defendant more generally) would inevitably have viewed the FSGI response from a regulatory perspective. Plainly Mr Rhodes could not answer the question why the claimants might be willing to invest their money to back a proposal that could be undermined by their former association with a company that was the subject of an ongoing criminal investigation. What he did know, however, was the precautionary approach the defendant would take on any CoCC, or applications for PMLs by those who had been interviewed under caution, were under suspicion, and/or had held senior roles at GVC at the time of the activities under investigation. The claimants were unwilling to identify the advisor/s who had provided them with comfort in this regard, and Mr Rhodes (reasonably) was troubled by the fact they seemed to think there would be no regulatory difficulties. As for references to “fearmongering” and “defamatory statements”, it was not unreasonable for Mr Rhodes to read these as relating to the compliance concerns: it is not suggested he was aware of any other context, and this was an entirely natural way of reading the response.[95]Finally, while acknowledging the sensitivity of the information the claimants were being asked to disclose, Mr Rhodes was entitled to see this as an entirely predictable difficulty, not addressed by the suggestion that it might be dealt with at an in-person meeting. The questions posed were those that the defendant would inevitably raise as and when it had to consider any application for a PML from those it was proposed should be put into leadership roles at 888, or when faced with a CoCC. Given the claimants’ experience in the industry, it was reasonable to think that was something they understood. Moreover, given the importance of licence approval for 888 (a company with some 70% of its business in this jurisdiction), Mr Rhodes was entitled to take the view that it would be a matter of concern if 888’s board had not wanted to make sure of these matters when considering the Proposal. Although the claimants have said that the Proposal was just one of a number of options, they had been content for this to be put before 888’s board, and the impression Mr Rhodes had been given was that this was a serious and imminent possibility, with sufficient shareholder support that it could not be ignored. Having regard to circumstances known to him at the time, I find Mr Rhodes’ response neither unreasonable nor surprising.[96]That response was conveyed in a reply to Lord Mendelsohn’s letter, sent to 888 at 11.48 am the same day, in which Mr Rhodes stated:
“... we have made clear the investigations which the Commission would be duty bound to undertake if the company proceeds with these appointments. The Commission has therefore advised that the board exercises due diligence before making any such appointments. The Commission would not regard a simple denial by the prospective appointees in and of itself as satisfying a due diligence exercise.”

The decision to undertake a section 116 review and 888’s revised RNS

[97]At some stage during the morning of 14 July 2023, the decision was taken within the defendant to undertake a section 116 review of 888; that was communicated to DCMS at 11.59 am. Although formal notifications were sent out to 888 later that afternoon, it is apparent the decision was communicated to 888 before 12.28 pm, when Mr Gill sent Mr Roden a revised draft RNS, now referring to the review, seeking “any final comments” from the defendant.[98]Although circulated to a number of officials within the defendant (including Mr Rhodes) the suggested amendments to this iteration of the July 2023 RNS are shown as made by Mr Roden and by the defendant’s senior in-house lawyer, Mr Nick Hawkings; the tracked changes version of the RNS was then sent to 888 about an hour later; the amendments were as shown below (as before, these are shown as either crossed through (deletions), or underlined (additions)):
“... Given the due diligence on FS Gaming that has been conducted and the nature of the responses received from FS Gaming,Based on the information received in relation to these matters, the GBGC informed the Group on 14 July 2023 that it has initiateddecided it needs to commence a review of the Group’s operating licences under Section 116 (2)(c)(ii) of the Gambling Act 2005. ... The Group will co-operate fully with the GBGC in its licence review. The GBGC has confirmed that a licence review may result in immediate suspension, and/or subsequent revocation of operating licences.The Group will co-operate fully with the GBGC in its licence review. The GBGC has confirmed that a licence review allows for a range of outcomes, including immediate suspension, revocation of operating licences, or the imposition of licence conditions or financial penalties if the Commission finds that licence conditions have been breached, or that the operator, or relevant persons connected to the operator, are unsuitable. ...”
[99]As before, I am satisfied that the edits made by the defendant were confined to ensuring its position was correctly described.

Lord Mendelsohn’s contacts with FSGI and the publication of the 2023 RNS

[100]Meanwhile, during the course of the day, Lord Mendelsohn called Mr Alexander and Mr Shribman to inform them of the imminent release of 888’s RNS (he also tried to call Mr Feldman but did not get through). I accept Mr Alexander’s evidence that this was a short call (less than a minute) and that Lord Mendelsohn did not explain any of the detail that would be set out.[101]888 published the 2023 RNS later during the afternoon of 14 July (it appears in full as annex A to this judgment). The heading stated the RNS contained “inside information”, “for immediate release”. The particular passages relied on by the claimants (see paragraph 6, amended particulars of claim) are as follows:
“Further to its major shareholder notification on 6 June 2023, [FSGI] subsequently presented a proposal (“Proposal”) to the Board of 888 (the “Board”). The Board has thoroughly reviewed the Proposal, which centred on the appointments of Lee Feldman, Kenny Alexander and Stephen Morana to become Chair, CEO and CFO of 888, respectively. All the proposed appointees previously held senior leadership positions at GVC Holdings Plc (“GVC”) (now Entain plc)… The Group has been in communication with the GB Gambling Commission (“GBGC”) in relation to [FSGI’s] shareholding and the Proposal. The GBGC has expressed its concern regarding the ongoing HMRC investigation into GVC’s activities covering the time the individuals proposed to the Board by [FSGI] were in senior leadership positions at GVC, and that it is in close dialogue with HMRC regarding its ongoing investigation. The GBGC requested regular updates from 888 in relation to any new developments in the circumstances around [FSGI] and its Proposal so that it can fully execute its responsibilities as the GB regulator. The Group requested clarification from [FSGI] in relation to considerations expressed by the GBGC, but the most basic assurances that addressed these concerns were not forthcoming. Based on the information received in relation to these matters, the GBGC informed the Group on 14 July 2023 that it has decided it needs to commence a review of the Group’s operating licences under Section 116 (2)(c)(ii) of the Gambling Act 2005. The GBGC confirmed it has determined a licence review is appropriate in light of [FSGI’s] investment in the Group and the Proposal.”
[102]The 2023 RNS was picked up by various media outlets, and the defendant received a number of queries, which were met with the response that it would not talk about individual operators or say publicly whether an operator was under investigation or not.[103]Articles regarding the RNS appeared in The Guardian, The Telegraph, The Independent, and The Racing Post (amongst others), generally adopting similar lines to the following piece, published in the Financial Times on 14 July 2023:
“The owner of William Hill faces the possibility of losing its right to operate in the UK after regulators put its licence under review over concerns about a new shareholder’s links to a bribery investigation by the UK tax authority. 888 said the Gambling Commission told it on Friday that its licence was under review in relation to an almost 7 per cent stake built by [FSGI], a vehicle backed by former executives at GVC, the gambling giant later rebranded Entain. The group includes Kenny Alexander, who built GVC into one of the world's largest gambling companies, and its former chair Lee Feldman. The pair had pitched themselves as new management for 888, which has struggled with a large debt pile and compliance breaches. The prospect of the pair taking control sent shares in 888 soaring when the stake was disclosed last month. 888 had held talks with [FSGI] over the proposal. However, 888's board, which has been hunting for a new chief executive since January, said on Friday that it had decided to terminate discussions with [FSGI], citing “immediate and significant risk” of losing its licence if the proposed management team was installed. ... 888 said it had sought clarification from [FSGI] over questions raised by the Gambling Commission but “the most basic assurances that addressed these concerns were not forthcoming”.”
The Guardian article referenced Mr Rhodes’ letter of 7 July 2023, and also included a response from FSGI, saying it would continue in its efforts.[104]Privately, Mr Feldman set out his thoughts in an email to himself in the early hours of 15 July 2023, at that stage seeing the defendant’s involvement as having been orchestrated by Lord Mendelsohn for his own ends.

Official notification of the defendant’s section 116 review

[105]Official notifications of the defendant’s section 116 review were sent out to each 888 licence holder after 5.00 pm on 14 July 2023. In explaining the grounds for the review, a summary was provided of the interactions between Lord Mendelsohn and Mr Rhodes; in particular, it was stated as follows:
“On 7 July 2023, Andrew Rhodes ... set out the Commission’s regulatory process and guidance. The letter also set out some immediate questions the Commission would want to ask in a scenario whereby relevant individuals, connected to a known HMRC investigation, seek to apply for a personal management licence (PML) or are connected to a change of corporate control (COCC) application. On 14 July 2023, a response was received from Lord Mendelsohn in which it is confirmed that the questions suggested by Andrew Rhodes in his letter of 7 July 2023 had been raised with [FSGI]. However, the responses received did not meet the requirements of the 888 board and “as such cannot be relied on for regulatory assurance”. ... Given the due diligence on [FSGI] that has been conducted and the nature of the responses received from [FSGI] to date, Commission Officials are concerned this is a potential risk to the licensing objectives namely: preventing gambling from being a source of crime or disorder, being associated with crime or disorder, or being used to support crime. The review will consider the Licensee’s management of risk to this licensing objective. ...”
The review will consider the Licensee’s management of risk to this licensing objective. ...”

Correspondence after publication of the 2023 RNS

[106]On 21 July 2023, Mr Morana (for FSGI) made a subject access request to the defendant; I cannot see there was any response to this. On 14 September 2023, this was followed by a letter from Mr Gideon Cammerman KC (then advising FSGI on regulatory matters), posing a number of questions for Mr Rhodes. Mr Rhodes responded on 15 September 2023, as follows:
“You ask if the Commission has made any adverse findings regarding potential suitability of persons associated with [FSGI]. We have not, the Commission did not make any findings at all in relation to any parties associated with [FSGI]. The Commission has a strict decision-making process for all licence applications; it did not make any findings outside of this process, provisional or otherwise. This was made clear in our communications with 888. The Commission provided guidance on the licence application process, which was primarily drawn from excerpts of the Gambling Act, the [Licensing Code of Practice], and our Statement of Principles, all of which are publicly available to view. You ask if we communicated or authorised others to publish any assessment, but as above, no findings were made. You asked if the Commission tasked or communicated to 888 a series of questions to ask those associated with [FSGI]. The Commission provided 888 with example questions we ourselves would ask as part of the Licence Application process should any individuals connected to the ongoing HMRC investigation submit a Personal Management Licence application, or should a Change of Corporate Control application be submitted, in order to satisfy ourselves as to the suitability of any applicants. These questions can be found in guidance for making such an application on our website ...”
[107]Subsequent to Mr Rhodes’ response, the claimants initially considered taking action against 888 and Lord Mendelsohn, with letters before claim (in January and February 2024) alleging defamation and malicious falsehood in relation to the 2023 RNS. A response to that correspondence on 15 February 2024, from lawyers for 888 and Lord Mendelsohn, included the following statement:
“Both our clients and the [defendant] had concerns regarding the impact of your clients’ proposal in respect of 888 on the operating licences of 888 and its subsidiaries ... Our clients had requested assurances from your clients in this regard, which they had failed to provide, and the [defendant] had commenced a review of the Licences in light of all of this. ... As explained in the RNS, 888 was therefore in communication with [the defendant] regarding the Proposal. The [defendant] expressed its concern in respect of the investigation by HMRC, with whom it said it was in close dialogue ... As explained in the RNS, the [defendant] has requested regular updates in respect of these matters. Our clients therefore updated the [defendant] on the morning of 14 July 2023. The [defendant] then informed our clients that it had commenced a review of the Licences.”

The deferred prosecution agreement and subsequent events

[108]On 10 August 2023, Entain issued a RNS, and emailed the defendant, providing an update on the DPA negotiations in respect of the HMRC investigation, explaining it had taken a provision of £585 million against a potential settlement of offences under section 7 of the Bribery Act 2010. Going into the autumn and winter, Entain provided further updates regarding the DPA negotiations. These explained that, as a term of the DPA, an external review would be undertaken of Entain’s ethics and compliance framework.[109]Preliminary approval was given for the DPA at a hearing before the President of the King’s Bench Division (“PKBD”) on 24 November 2023. This was the subject of a further RNS (on the same day), which announced that Entain:
“... has agreed to pay a financial penalty plus disgorgement of profits totalling £585 million, to make a charitable donation of £20 million and to pay a contribution of £10 million to HMRC and the CPS’s costs. The financial penalty, disgorgement of profits and the charitable donation will be paid in instalments over the term of the DPA, which will be four years from the date of the final Court approval.”
[110]On 5 December 2023, at a further hearing before the PKBD, final approval was given for the DPA between the CPS and Entain. In her public judgment, the PKBD explained her reasons for approving the DPA as follows:
“18. ... The facts agreed between the parties ... reflect the gravity and breadth of the relevant conduct. Whilst that conduct is undoubtedly serious, the other factors suggest that the interests of justice are best served by the DPA. One significant factor in this conclusion is that Entain is, both in form and substance, a different entity to GVC. There have been sweeping changes to the compliance procedures in place. Entain have taken significant steps to assist HMRC with their investigations and have committed to continuing to do so. The DPA requires Entain to pay a very significant financial penalty, calculated to reflect the revenue from the whole of its Turkish operations at the material time.”
It was made clear that the PKBD’s full judgment, and the statement of facts, would remain private until the conclusion of any related criminal proceedings.[111]On 16 January 2024, the CPS requested that Mr Feldman attend a voluntary interview under caution as part of the HMRC investigation. On 19 August 2025, Mr Feldman and Mr Alexander, alongside a number of other former GVC/Entain directors and executives, were charged with conspiracy to defraud and conspiracy to bribe. The charges are denied and a trial is scheduled to commence in February 2028.

The section 116 review

[112]During the course of August 2023, FSGI’s voting rights in 888 were reduced after its agreement with Mr Segev was terminated. Meanwhile, 888 provided updates to the defendant regarding further contacts from FSGI, and, following the termination of discussions with FSGI, it appointed a new CEO and CFO.[113]Reviewing the position in November and December 2023, contemporaneous emails indicate that the defendant was looking to see whether there were further proposed changes at 888 (in particular given the on-going integration of William Hill) and whether there was continued interest on the part of FSGI.[114]On 6 December 2023, the journalist Mr Oliver Gill emailed the defendant to ask for confirmation that it had:
“... conducted its review and found no adverse findings in relation to the suitability to persons in relation to FS Gaming. Such conclusions have been communicated with 888, our sources say.”
As Mr Feldman accepts, he is likely to have been a source for Mr Gill, having provided him with “evidence ... there was no finding on Kenny’s suitability by the [defendant]” (per Mr Feldman’s email of 3 December 2023). In any event, Mr Gill’s enquiry met with the response that the defendant would not publicly say if an operator was under investigation, or comment on any investigation.[115]It is apparent, however, that Mr Rhodes was made aware of Mr Gill’s enquiry, referencing this in internal emails relating to the 888 section 116 review, saying:
“... We recently had a press query claiming we had ‘exonerated’, or similar, proposed appointments from [FSGI], which we have not. Quite the opposite ... However, as there appears to be no realistic prospect of another attempt to install that team at 888 ..., the need for the s 116 review would recede. What we say on this will be important. We don’t comment on this sort of thing, but we should assume someone will, so how we respond to this is going to matter. I am not convinced our normal ‘never complain, never explain’ approach on regulatory action prior to an outcome will work here.”
[116]On 22 January 2024, a remote meeting took place between the defendant (Mr Rhodes and his new private secretary, Sunita Kumar) and 888 (Mr Gill). A draft letter from 888, provided in advance of the meeting, was discussed; this set out developments since the commencement of the section 116 review, which 888 felt had mitigated and reduced the concern that had triggered the review, and contained a request for the defendant to consider ending the review with no further action, noting that, as and when it did, 888 would be required to disclose this to the market. Mr Rhodes asked for the letter to be sent formally to the defendant, saying it would then confirm the conclusion of the review.[117]Noting that 888 would publish a RNS regarding the conclusion of the review, Mr Rhodes initially stated that the defendant would not say anything publicly. Mr Gill referred to correspondence received from FSGI in which it had been stated that the defendant “does not have any concerns about [the individuals in issue]”, which Mr Rhodes said was not true, then expressing the view that:
“... we have to say is the s116 was concluded because we no longer have concerns that the shareholders will impose those individuals not that we have found them fit and proper or they are exonerated.”
[118]On 20 March 2024, 888 sent its letter to the defendant requesting it consider concluding the section 116 review with no further action (Mr Gill explaining the delay in sending the letter was “due to litigation with the individuals identified”; I understand this to refer to the letters of claim from FSGI). The same day, Mr Rhodes sent an internal email regarding any public statements by the defendant following the conclusion of the review. Anticipating “questions around whether that means we have ‘exonerated’ the individuals we had concerns about”, Mr Rhodes set out initial draft “lines to take”.[119]On 21 March 2024, the defendant wrote to 888 that it had concluded the licence review and did not intend to take any further action since the Proposal was no longer being pursued, albeit requesting that 888 notify it immediately:
“... should any individuals subject to our concerns make attempts to be installed in key management positions or effect control over the Licensed Entities.”
[120]The defendant asked to see 888’s draft RNS regarding this decision, saying it did not itself intend to make any public statement. Later that day, the defendant informed 888 it had no objection to the publication of a RNS as follows:
“888 ... one of the world's leading betting and gaming companies with internationally renowned brands ..., today announces that the [defendant] has informed 888 that it has concluded its review of the Group’s operating licences under Section 116 (2)(c)(ii) of the Gambling Act 2005 ... that was announced by 888 on 14 July 2023 (the “Licence Review”). The [defendant] has concluded the Licence Review without imposing any licence conditions, financial penalties or other remedies on [888] after the being satisfied that the risk to the licensing objectives under the Gambling Act that led to the review have been appropriately managed and adequately mitigated.”
The RNS was published by 888 on the morning of 22 March 2024.

The defendant’s statement following the March 2024 RNS: the March 2024 statement

[121]During the course of 21/22 March 2024 (with input from Mr Glass (communications), Mr Hawkings (legal) and Mr Vowles (enforcement)), the defendant agreed a “reactive press statement” relating to 888’s RNS and the ending of the section 116 review; this is “the March 2024 statement”, which appears in full as annex B to this judgment.[122]Having referenced the HMRC investigation and the Proposal made by FSGI, involving individuals who had been in “key control functions” at GVC during the period investigated by HMRC, the March 2024 statement continued:
“... the [defendant] raised a series of questions with regard to the risks and appropriateness of the proposals. We remained unsatisfied with the responses to these questions, and so instigated a s.116 review of the licence on the grounds that we believed it was appropriate to do so in all the circumstances. We understand from 888 Holdings the management proposals put forward by the new shareholders are no longer being pursued, and have not been for some time. As a result of this, alongside wider assurances provided as to those involved in the management of the operator, it has not been necessary for the Commission to make any determination in this case or to make any assessment of the suitability of the proposed individuals, and we have therefore discontinued the review of 888 Holdings’ licence to operate with no further action required.”
[123]Mr Glass’s (unchallenged) evidence was that the March 2024 statement was not issued in any general sense but was shared reactively with four journalists who directly contacted the defendant about 888’s RNS and the ending of the section 116 review. On the evidence before me, of those contacts, only one media outlet - iGamingBusiness, an on-line gaming news service, widely read in the industry – in fact re-published the statement; in an article of 22 March 2024, which named both the claimants, it was reported that the defendant would be taking:
“... no regulatory action against 888 following the licence review sparked by an attempted management takeover by Kenneth Alexander” and quoted the defendant as saying: “We understand from 888 ... the management proposals put forward by the new shareholders are no longer being pursued ... As a result of this, alongside wider assurances provided as to those involved in the management of the operator, it has not been necessary for [the defendant] to make any determination in this case or to make any assessment of the suitability of the proposed individuals and we have therefore discontinued the review ...”
[124]Other trade publications (such as VegasSlotsOnline and affpapa.com) also covered the story, but did not include the defendant’s statement, or (as in the case of Yogonet) included only part of it, without referring to it having been unnecessary to make an assessment of suitability.[125]On 27 March 2024, Mr Cammerman KC wrote to the defendant regarding the March 2024 statement, saying this conflicted with earlier assurances in the defendant’s letter of 15 September 2023, and asking for clarification on a number of issues. The defendant’s substantive response of 11 April 2024, stated that the March 2024 statement confirmed 888’s RNS, and observed:
“...[the defendant] has a discretion whether to publish a notice stating that a review has been discontinued, and in doing so takes account inter alia of the rights of individuals to privacy, the extent to which the matter is in the public domain and the public interest in publication. In this case, the facts were in the public domain; there was a public interest in the case; the [defendant] did not name the individuals; and the press statement made it clear that it had not made any determination in the case or assessed the suitability of the individuals concerned. In the circumstances of this case, the Commission’s decision to make a press statement was reasonable, as were the contents of the statement itself.”
The defendant disagreed there was any inconsistency with what it had said in its letter of 15 September 2023, confirming its position was as set out in the March 2024 statement, which was drafted without input from 888, and represented the defendant’s statutory and corporate response as the national gambling regulator.

The claimants’ evidence relevant to remedy

[126]As for the impact of the disclosures , Mr Feldman has testified as follows:
“97. I was ostracized by my peers in the industry, as people did not want to be associated with an entity or individual whose previous conduct resulted in immediate alarm bells from the industry regulator relating to our suitability as board members, and who appeared to be permanently tainted by suspicion in the eyes of the regulator. Long-standing investors who we worked with and long-time contacts went dark at this point and simply stopped calling me. As someone who has operated in markets and deal making my entire working life, I found for the first time I was being treated as a pariah by people I had known and trusted for years. Opportunities dried up and the phone stopped ringing. I was sent articles which republished the Defendant’s disclosures, and asked questions by several people about the situation. I have found it hard to do business as a result of this situation – it essentially stopped me from operating for two years. ... 98. In addition to the impact on my professional life, the disclosures by the Defendant have had a profound effect on my personal life. It is common for work and social life to blend in the circles in which I work, and the private information shared by the Defendant has tainted many of those relationships, causing isolation and strain on my personal life. I have a young family, and the highly public way the Defendant has dealt with me is deeply unsettling, including because of what my children will see in the future online.”
[127]In re-examination, Mr Feldman provided an example of losing a business contact, in the form of the CEO of DraftKings, explaining that they had spoken on 11 July 2023, after being put in contact by a former colleague of Mr Feldman, but no further contact was made after publication of the July RNS.[128]Mr Alexander’s evidence in this regard was as follows:
“42. The impact of the publications has been disastrous. I’ve not been able to work in the industry since the [2023 RNS] was published, and my relationship with my industry contacts has been severely damaged. Our co-investors in [FSGI] have deserted us and many strong industry contacts – which cross over with my social connections – have been severely damaged. The publication of the [2023 RNS] itself happened while I was at a family occasion and caused immense upset to us all.”

The claim and the questions identified for determination

[129]The claim is of misuse of private information and breach of confidence. The information is said to be:(1) in the 2023 RNS, that the defendant instigated a licence review of 888 because it raised a series of questions as regards the claimants and the Proposal, and the claimants failed to provide satisfactory answers; and(2) in the March 2024 statement, that the defendant terminated the licence review because the claimant’s proposed involvement in 888 had come to an end (as opposed to their having provided satisfactory answers). The claimants seek damages, including aggravated damages, and an injunction.[130]The defendant denies liability. It does not accept the claimants’ characterisation of the contents of the publications, and denies these contained the claimants’ private or confidential information or that they suffered damage thereby; it further contends it was not responsible for the 2023 RNS (issued by 888), and says the March 2024 statement was a limited, reactive publication, in which the claimants were not readily identifiable. In any event, it says there was an overriding public interest in its (proportionate) publications.[131]The parties have agreed the following questions arise for determination:(i) did the publications contain the claimants’ information?(ii) if yes, what was that information, and (a) did the claimants have a reasonable expectation of privacy in respect of it? (b) was it confidential?(iii) in respect of the 2023 RNS, was the defendant responsible for that publication?(iv) in respect of both publications, was this a misuse of private information/breach of confidence for which the defendant is liable? Additionally, if the claimants prove their claims, are they entitled to: (i) damages (including aggravated damages); (ii) an injunction? The parties’ submissions in summary The claimants’ case

The parties’ submissions in summary

[132]The claimants argue that the 2023 RNS and the March 2024 press statement unlawfully revealed private and confidential information about them, amounting to misuse of private information and breach of confidence; they contend those disclosures implied they were under regulatory investigation and failed to provide satisfactory answers regarding their suitability for senior roles at 888, and they say that they had a reasonable expectation of privacy in this regard, under article 8 ECHR, supported by the principles in ZXC v Bloomberg [2022] UKSC 5, and Sicri v Associated Newspapers Ltd [2020] EWHC 3541, in particular, recognising the harm caused by revealing that someone is under scrutiny by a state body.[133]The claimants contend the defendant’s actions were unnecessary, premature, and driven by an unrealistic fear of a “takeover” despite no imminent change of control or hostile bid. They say the evidence shows the defendant’s involvement in shaping and approving the 2023 RNS, permitting its content to be shared with shareholders and the media. The claimants argue that this collaboration with 888 amounted to an orchestration of damaging publicity, contrary to the defendant’s own publicity code and principles of transparency and fairness. They reject the defendant’s reliance on public interest and argue that (in both instances) the disclosures were not reactive or limited but widely disseminated to industry publications, causing significant harm.[134]Damages are claimed for distress, loss of dignity, and harm to professional standing, plus aggravated damages to reflect the defendant’s high-handed conduct, failure to follow its guidance, and misleading responses to complaints. Citing comparator awards in Gulati v MGN Ltd [2016] FSR 12 (ChD), Sicri, and ZXC, the claimants propose total awards of £20,000 per claimant for each disclosure (a total of £40,000 each). They also seek an injunction to prevent repetition of the disclosures, arguing the defendant’s approach demonstrated a disregard for their privacy so as to require such protection.

The defendant’s case

[135]For the defendant it is contended that the claims are misconceived: the information complained of - relating to its decision to commence, then conclude, a section 116 licence review of 888 - was regulatory in nature, not akin to that in Sicri and ZXC, and not private or confidential. In any event, it says the 2023 RNS was issued by 888, and it rejects allegations of collusion, describing them as baseless and unpleaded, contending its edits were limited to correcting inaccuracies about its position. Even if liable for the 2023 RNS, the defendant argues no reasonable expectation of privacy arises; the Proposal was a public business matter, widely reported in the media, and the section 116 review was a precautionary step, not a finding of unsuitability. As for the March 2024 statement, that was a limited, reactive clarification, prompted by misinformation circulating in the press, and neither named the claimants nor referenced any adverse findings against them.[136]The defendant further argues that any publication on its part was driven by its statutory obligations and legitimate regulatory concerns, and was subject to the overriding public interest in its maintenance of the licensing objective of preventing crime in gambling, in particular given that Mr Alexander had been interviewed under caution, and Mr Feldman was aware of this. The defendant says the claimants’ responses to due diligence questions were evasive and dismissive, raising serious suitability concerns; to the extent it published information that could be said to be private and confidential, this was lawful, proportionate, and in the public interest.[137]As for remedies, the defendant says the claims for damages are contrived, unsupported by evidence, and cannot (absent a claim in defamation) include reputational harm; it further argues that any distress alleged is implausible compared to the impact of the criminal charges now faced by both claimants. The claim for an injunction is resisted, not least as the defendant had already made clear that it would not further publish the information. The legal framework Misuse of private information Overview

The legal framework

[138]Liability for misuse of private information is determined by applying a two-stage test. Stage one requires the court to determine whether the complainant has a reasonable expectation of privacy in the information. If so, stage two asks whether that expectation is outweighed by the publisher’s right to freedom of expression, involving the balancing of the complainant’s article 8 ECHR right to privacy and the publisher’s article 10 right to freedom of expression (ZXC v Bloomberg LP [2022] UKSC 5, paragraphs 26 and 47).

Stage one

[139]Whether there is a reasonable expectation of privacy is an objective question: the expectation is that of a reasonable person of ordinary sensibilities placed in the same position as the claimant and faced with the same publicity (ZXC, paragraph 49). In Murray v Express Newspapers plc [2009] Ch 481, it was made clear that the question “is a broad one which takes account of all the circumstances of the case”; such circumstances are likely to include, but are not limited to, the matters identified at paragraph 36 of Murray (the “Murray factors”) endorsed in ZXC, at paragraphs 50-51, as follows:
“(1) the attributes of the claimant; (2) the nature of the activity in which the claimant was engaged; (3) the place at which it was happening; (4) the nature and purpose of the intrusion; (5) the absence of consent and whether it was known or could be inferred; (6) the effect on the claimant; and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher.”
[140]In ZXC, it was further recognised that there may be certain types of information that will normally, although not invariably, be regarded as giving rise to a reasonable expectation of privacy, so as to be characterised as being private in nature (see paragraph 52), and others where the converse is the case (paragraph 53). A relevant circumstance will be the extent to which the information in issue is in the public domain: information that was private may become so well known that it is no longer so (ZXC paragraph 54, endorsing the view expressed in K v News Group Newspapers Ltd [2011] 1 WLR 1827 at paragraph 10(3)).[141]In ZXC the question was whether (pre-charge) a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation. In the Court of Appeal ([2020] EWCA Civ 611, at paragraphs 81-82), Simon LJ held that, as a “legitimate starting point”:
“... those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.”
[142]In Sicri v Associated Newspapers Ltd [2020] EWHC 3541, (decided after the Court of Appeal’s ruling in ZXC, but before the Supreme Court’s determination) Warby J (as he then was) considered the case-law had established a “general rule” that an individual would have a reasonable expectation of privacy in respect of information that they were “the object of official suspicion” (Sicri, paragraphs 75-85). The examples cited in Sicri all related to criminal proceedings, but the rationale identified could be seen to allow for a wider range of circumstances, where information that an individual had come “under suspicion by the state” would be likely “to have a seriously harmful impact on the person’s reputation, and thus their private life” (Sicri, paragraph 75).[143]On the further appeal in ZXC, the Supreme Court first considered what was meant by a “general rule” or “legitimate starting point” in this context, making clear (I précis):(i) this was not a legal rule or presumption, let alone an irrebuttable presumption (paragraph 67);(ii) it would not invariably lead to a finding of an objectively reasonable expectation of privacy (e.g. public rioting would not be protected) (paragraph 69);(iii) the claimant still bears the burden of proof (paragraph 69);(iv) the court will go on to consider whether, by reference to all the circumstances, the expectation does not arise or is significantly reduced (the latter possibility impacting upon its weighting at stage two) (paragraph 70);(v) the rationale for the rule is that publication of such information ordinarily damages a person’s reputation and harms aspects of their physical and social identity, protected by article 8 ECHR (paragraph 71).[144]The Supreme Court noted the negative effects of publishing information that a person is under investigation by the police or other organ of the state, and the growing recognition that those arrested or suspected of a crime should not be revealed to the public, resulting in a practice by state investigatory bodies not to identify those under investigation prior to charge (ZXC, paragraphs 80-99). The negative effect was not removed by the presumption of innocence: even allowing for the public’s ability to understand and observe the presumption, the individual will ordinarily suffer reputational and other harm if such information is published, albeit the degree of harm will depend on the circumstances (ZXC, paragraph 109). Acknowledging the need for a fact-specific enquiry, evaluating all circumstances of the case, the Supreme Court held that, pre-charge, information that a person is under criminal investigation will generally result in a finding that there is a reasonable expectation of privacy, such that:
“144. ... it is appropriate to state that there is a legitimate starting point that there is an expectation of privacy in relation to that information.”
[145]The Supreme Court further emphasised that, in contrast to defamation, where the falsity of the information in issue is of central importance, the purpose of the tort of misuse of private information is to protect an individual’s private life in accordance with article 8 ECHR, whether the information is true or false. As such, it would be inappropriate to read across the concept of the hypothetical reader from the tort of defamation into the tort of misuse of private information:
“112. ... In the tort of defamation, the meaning of a statement is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. In the tort of misuse of private information, part of the factual enquiry is as to the effect of publication of the information on the claimant. The question becomes how would others perceive the claimant if the information was published? That enquiry does not require the application of an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to the information. ...”
[146]In this context, while the status of a complainant as a well-known businessman, actively involved in the affairs of a large public company, would mean the limits of acceptable criticism of him are wider than for a private individual, that was not determinative and did not mean there was no limit: that would be a relevant stage one consideration but was only one factor, and the claimant’s attributes must be balanced against the effect of publication of the information (which might be all the greater for such an individual); see ZXC, paragraph 140.

Stage two

[147]Stage two involves a balancing of the complainant’s article 8 right to privacy and the publisher’s right to freedom of expression (article 10), to determine which should prevail in the particular circumstances of the case. As explained in Campbell v MGN [2004] 2 AC 457, per Lord Hoffmann at paragraph 55:
“Both [rights] reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need ...”
[148]At stage two, the burden of proof is on the defendant, albeit the balancing process is an objective exercise, to be conducted without regard to the publisher’s state of mind: Sicri,paragraph 65. In In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at paragraph 17, Lord Steyn identified the following considerations as being of particular importance in carrying out the balancing exercise:(1) an intense focus on the comparative importance of the specific rights being claimed in the individual case;(2) the justifications for interfering with or restricting each right; and(3) the proportionality of the respective interference or restriction (see paragraph 58, ZXC). In ZXC, it was further observed:
“61. The extent to which publication is in the public interest is of central importance. .... 62. In considering the public interest in publication, the contribution that publication will make to a debate of general interest is a factor of particular importance. In Von Hannover v Germany [2004] EMLR 21, para 76 it was said by the ECtHR that it should be “the decisive factor in balancing the protection of private life against freedom of expression”
. In Axel Springer [[2012] EMLR 15] it was said to be an “initial essential criterion”. Other factors of likely relevance identified in that case are: (1) how well-known is the person concerned and what is the subject of the report; (2) the prior conduct of the person concerned; (3) the method of obtaining the information and its veracity; (4) the content, form and consequences of publication; and (5) the severity of the restriction or interference and its proportionality with the exercise of the freedom of expression.”[149]In determining whether the publication is of a matter of public interest, it is necessary to consider it as a whole and in context; that does not, however, detract from the requirement that there must be an “intense focus” on the extent to which it can properly be said that the publication of the information makes a contribution to a debate of general interest (see paragraphs 65-66 Sicri).

Breach of confidence

[150]In Coco v Clarke [1969] RPC 41, at pp 47-47, Megarry J identified three elements that will normally be required to establish a cause of action for breach of confidence:(1) the information in question has the necessary quality of confidence - it must be inaccessible and not in the public domain;(2) the information must have been imparted in circumstances importing an obligation of confidence;(3) there must have been an unauthorised use of the information. In R v Dept of Health, ex p Source Informatics Ltd [2001] QB 424, at paragraph 31, Simon Brown LJ expressed the scope of the duty as being whether the confidant’s conscience would, or should, be troubled by the disclosure.[151]If a duty of confidence is established, it may nevertheless be negated by, or qualified in, the public interest; as Lord Goff of Chieveley observed in Attorney General v Observer Limited [1990] 1 AC 109 (“Spycatcher”), at p 282E-F:
“... although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply ... to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.”
In W v Edgell [1990] Ch 359, at p 419E-420C, Bingham LJ (as he then was) summarised the position, as follows:
“... (1) ... the law recognises an important public interest in maintaining professional duties of confidence; but (2) ... the law treats such duties not as absolute but as liable to be overridden where there is held to be a stronger public interest in disclosure. ...”
[152]The legal distinction between the protection of confidential, as opposed to private, information was considered by Lord Nicholls of Birkenhead in Douglas v Hello! Ltd (No 2) [2007] UKHL 21, [2008] 1 AC 1:
“255. As the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy, and secret (‘confidential’) information. It is important to keep these two distinct. In some instances information may qualify for protection both on grounds of privacy and confidentiality. In other instances information may be in the public domain, and not qualify for protection as confidential, and yet qualify for protection on the grounds of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public. Conversely, and obviously, a trade secret may be protected as confidential information even though no question of personal privacy is involved.”

Responsibility for re-publication

[153]This issue arises only in respect of the 2023 RNS (the defendant accepts it is responsible for the March 2024 statement). It is common ground that the 2023 RNS was published not by the defendant but by 888, but the claimants say the defendant is to be held responsible for the disclosure of their private information thereby, because this was reasonably foreseeable, and the defendant’s editorial input amounted to the approval and authorisation of its content.[154]In determining the extent to which liability for republication will arise in misuse of private information cases, the editors of The Law of Privacy and the Media, 4th Edition have drawn an analogy with defamation in this regard:
“15:27 ... By analogy with defamation, the originator of material that infringes privacy may be held liable for all the damage that flows from such republication by others where such republication is a reasonably foreseeable consequence of the original publication.”
Albeit exceptions are identified, where those who participate in the dissemination of private information might have a defence (relevantly):
“11:42 ... (e) ... Those who participate in the dissemination of private information will have a defence to a damages claim for breach of confidence, misuse of private information, or defamation if they (i) act without notice (actual or constructive) of the fact that they are causing or contributing to a wrongful disclosure of private facts; (ii) play a secondary and purely instrumental role in the disclosure; ...”
[155]As the claimants observe, the analogy with the law of defamation in this context can be seen to be apt, because misuse of private information and defamation are both torts which concern the dissemination or disclosure of information to third parties. I would accept that the same reasoning would apply in respect of a breach of a duty of confidence.[156]The approach in defamation cases was addressed in McManus v Beckham [2002] EWCA Civ 939, [2002] 1 WLR 2982 (the authority which informs paragraph 15:27 The Law of Privacy and the Media), in which an appeal was allowed against the striking out of a claim in respect of a republication of an allegedly slanderous statement. Giving guidance as to how the question of liability for republication was to be approached, Waller LJ observed as follows:
“34. What the law is striving to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. If a defendant is actually aware (1) that what she says or does is likely to be reported, and (2) that if she slanders someone that slander is likely to be repeated in whole or in part, there is no injustice in her being held responsible for the damage that the slander causes via that publication. ... if ... a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it.”
Agreeing with that approach, Laws LJ made the point in the following way:
“39. ... where the court has to decide whether D should be responsible to C for the effects of what was done or omitted by a third agency, X, the court’s task is not purely one of ascertaining fact, and is certainly not value-free. In every such case D’s act may credibly be called a cause of the damage which flows after X has done what he has done. ... The issue for the court is not, therefore, purely one of factual causation. ... The reality is that the court has to decide whether, on the facts before it, it is just to hold D responsible for the loss in question. ...” ... 44. ... I intend what I have said to be in conformity with Waller LJ’s suggestion ... for in principle the approach he proposes, and for what it is worth my own reasoning, require that the damage in question flowing from X's act be foreseen or foreseeable by D, or the reasonable person in D’s position.”

Procedure

[157]A claimant who sues for misuse of private information or breach of confidence is required to identify with particularity the exact information said to be private or confidential and why (CPR PD 53B paragraphs8.1 and8.2 ). As Warby J observed in Candy v Holyoake [2017] EWHC 373 (QB) at paragraph 49:
“it is in my judgment essential, if there is to be a fair and efficient resolution of the claims, for the claimant to identify the information he seeks to protect and to specify the matters relied on in support of the contention that the retention, disclosure or use of the information would represent a misuse of private information or a breach of confidence. A proper pleading ... would need to itemise ... the items of information for which protection is sought, what the “nature” of that information is said to be, and any matters to be relied on as to why information of that “nature” is (inherently or for any other reason) private or, as the case may be, confidential. ...”

Remedy

[158]As is common ground, the principles applicable to recovery of damages for the misuse of private information were summarised by Warby J in Sicri, as follows:
“138. The aim is to compensate the claimant for material and non-material loss of damage suffered by him as a result of the tort. It is for the claimant to prove the fact, causation and amount of the harm. Certain general principles are clear and uncontroversial. (1) When assessing whether special damages should be awarded and, if so, how much, the court applies the principles that govern financial loss claims in tort generally. (2) General damages for misuse of private information may be awarded to compensate for distress, hurt feelings and any loss of dignity (or indignity) caused by the wrongful disclosure. Damages may be increased by other conduct of the publisher which is related to that wrongful act and aggravates the injury to the claimant’s feelings. An award may also be made for the commission of the wrong itself, in so far as it impacts on the values protected by the right, provided that the purpose of such an award is compensatory, rather than having deterrent or vindicatory in nature. Such compensation reflects the loss or diminution of a right to control private information. ...”
[159]In providing this summary, Warby J made reference to the earlier decision in Gulati v MGN Ltd [2015] EWHC 1482 (Ch) (affirmed on appeal, see [2015] EWCA Civ 1291), in which Mann J had accepted that:
“144. ... compensation can be given for things other than distress, and in particular can be given for the commission of the wrong itself so far as that commission impacts on the values protected by the right.”
[160]Although Warby J did not consider damages for injury to reputation should be recoverable in a claim for misuse of private information (see his reasoning at paragraphs 163-166), the award of general damages in Sicri was expressed to compensate for:
“137. ... the wrongful disclosure, the consequent loss of status, and the distress, anxiety and other emotional harm that this caused ...”
[161]As for the level of such an award, as Mann J emphasised in Gulati, the variable nature of privacy claims means it is difficult to apply any general bands or tariffs (in contrast to (e.g.) harassment cases, see Vento v Chief Constable West Yorkshire Police (No.2) [2002] EWCA Civ 1871). That said, a number of relevant considerations can be identified (see Gulati at paragraph 229; Sicri at paragraphs 143-144):(1) the nature and content of the information - the more private and significant the information, the greater effect its disclosure is likely to have;(2) the scope of the publication, the way it is presented, and any repetition - the wider or more sensational the publication, the greater the likely invasion and likely effect, and repetition may have a cumulative impact, increasing its effect over time;(3) the egg-shell skull principle applies - the extent of the damage may be claimant-specific;(4) any award of general damages is compensatory and must be proportionate in amount – it should be no more than necessary to compensate for the damage suffered, and levels of awards should have some coherence with those made in personal injury claims.[162]Aggravated damages may be awarded in cases of misuse of private information, but the award remains compensatory in nature, not punitive; as Mann J observed in Gulati, at paragraph 205:
“(i) ... damages are compensatory, not punitive. (ii) They are, at least usually, an aspect of injury to feelings. The aggravating factors cause greater hurt, and thus increase the damages. (iii) There are typically three aspects of conduct of the defendant which are capable of triggering an aggravated damages award - the manner in which the wrong was committed, motive and subsequent conduct. (iv) The third of those factors can include the manner in which the trial (and a fortiori the litigation as a whole) is conducted by the defendant. (v) A separate figure for aggravated damages can be given; or it can be wrapped up in one overall figure.”
[163]Although the parties have not expressly addressed the legal basis for the claim for injunctive relief, I have understood it to be common ground that, if I am satisfied that the claimants have made good their claims, I have a discretion to grant an injunction if I consider there is reason to apprehend further misuse of their private or confidential information on the part of the defendant. Analysis and conclusions Preliminary observations

Analysis and conclusions

[164]In determining whether there has been a misuse of the claimants’ private information or breach of confidence, it is necessary to focus on the claim as defined by the pleadings (and see CPD 53B paragraphs8.1 and8.2 ). Moreover, although the claimants have questioned the motivations of Lord Mendelsohn and Mr Rhodes, the test I am to apply is an objective one. For stage one purposes, whether (seen from someone in the position of the claimants) there is a reasonable expectation of privacy or confidence, poses an objective question (ZXC, paragraph 49; Coco v Clarke, p 47); similarly, although context is important, the balancing process required when reconciling competing rights and interests at stage two is an objective exercise, undertaken without regard to the intention of the publisher (Sicri, paragraph 65; Spycatcher, p 282).[165]It is also helpful to be clear what is not before me. I am not determining a claim against Lord Mendelsohn or 888 in respect of the termination of the discussions with FSGI, or the way in which 888 (absent relevant involvement by the defendant) communicated that information. Equally, I am not deciding a public law challenge to the defendant’s commencement of the section 116 review, or the subsequent conclusion of that process. The claimants’ case has at times elided the actions of 888 with those of the defendant, questioning the motives of Mr Rhodes in instigating, and then concluding, the section 116 review, and presenting the two publications as part of a continuing series of events. The claims before me, are however, limited to what is said to be the defendant’s misuse of the claimants’ private and confidential information in respect of each of the publications. Accepting I should have regard to the overall context, and that there may be cases where it is just to hold a participant in the dissemination of information responsible for its publication by another (McManus v Beckham), it is necessary to be clear as to the complaint being made and the role played by the defendant in the dissemination of the information in issue.

The 2023 RNS

[166]Focusing on the pleaded case before me, the complaint in respect of the 2023 RNS is that the defendant thereby disseminated information that it had instigated a licence review of 888 because it had raised a series of questions with regard to the risks and appropriateness of the claimants and the Proposal, and the claimants had failed to provide satisfactory answers; it is the claimants’ contention that this was information in which they had a reasonable expectation of privacy and was confidential.[167]Having regard to that case, and addressing the first question identified by the parties ((i) whether the 2023 RNS contained the claimants’ information), I accept that the 2023 RNS contained the claimants’ information in as much as it disclosed that they had been asked questions relevant to their suitability as potential licensees under the 2005 Act and it was considered they had provided unsatisfactory answers (although the 2023 RNS referred to FSGI, it also identified both claimants as part of the Proposal, and I accept they would both have been associated with FSGI in the minds of most readers). The 2023 RNS also included other information relating to the claimants (in particular, regarding their former positions at GVC/Entain, a company under investigation by HMRC), but that was already a matter of public discourse and is not part of the pleaded claim: it might be relevant context, but it is not the cause of action.[168]The question is then, what was that information and did the claimants have a reasonable expectation of privacy in respect of it, or was it confidential (question (ii) (a), (b))? In this regard, the claimants seek to draw an analogy with a disclosure of information relating to the subject of a police (or other state led) investigation, as in ZXC; they say the effect of the 2023 RNS was to suggest they were under investigation by the defendant, a state investigatory body, giving rise to a “pall of suspicion” akin to the criminal investigation in ZXC.[169]The first difficulty with this way of putting the claim is that it expands the claimants’ case beyond that which is pleaded. CPD 53B paragraphs8.1 and8.2 require a claimant to specify “the information” in respect of which it is said there was a reasonable expectation of privacy, or which is said to be confidential. Paragraph 12 of the amended particulars of claim identifies “the information” as limited to the instigation of the section 116 review into 888’s licences, and the reasons for that; holding the claimants to their pleaded case, that does not extend to an investigation against the claimants themselves.[170]Even if it would be wrong to so limit the claimants’ claim, however, I do not find this is a case analogous to ZXC such as to give rise to a “legitimate starting point” (ZXC, paragraph 146) of privacy or confidence. Accepting that (in contrast to defamation) this is not a case where the court must objectively assess the publication for a single meaning (ZXC, paragraph 112), I do not agree that the 2023 RNS had the effect the claimants now contend. The question in this regard (per ZXC) requires a factual enquiry as to the effect of the publication of the information on the claimants, asking how others would perceive them if the information was published. I return to this point when addressing the Murray factors below, but as the claimants seek to assert a “legitimate starting point” of privacy and confidence, it is necessary to first consider whether any information disclosed in the 2023 RNS can be said to be akin to a disclosure that the claimants were “the object of official suspicion”[171]Although there was reference in the 2023 RNS to the HMRC investigation into the activities of GVC during the time the claimants held senior leadership positions at that company, that said nothing more than was already in the public domain. Otherwise, the 2023 RNS referred to the defendant’s section 116 review into 888’s operating licences. Even if a section 116 review could be seen as analogous the kind of investigation under consideration in Sicri and ZXC (which is questionable), the 2023 RNS did not (and could not) refer to any such investigation into the claimants, not least because the defendant had not embarked upon such an investigation and could not do so: neither claimant was licensed by the defendant, and there was no application before it on a CoCC, or for PMLs for the claimants, such as to warrant an investigation into their suitability for such purposes. The defendant was, however, entitled to exercise its section 116 powers of review in respect of 888, as holder of a number of operating licences. Given their experience, the claimants would have been aware of this regulatory framework, and it is apparent from the press coverage at the time (such as the Financial Times report of 14 July 2023), that it was understood the defendant’s review related to 888, not the claimants.[172]While I am satisfied this case is not analogous to ZXC, that is not the end of the matter: the information in issue might not give rise to the same “legitimate starting point” but there could still be a reasonable expectation of privacy or confidence, having regard to all the circumstances of the case (Murray, paragraph 36; ZXC, paragraph 50). Moreover, even if I was wrong in this respect, that would only provide the “starting point”; I would still need to determine whether, given all the circumstances, the reasonable expectation of privacy did not in fact arise, or was significantly reduced (ZXC, paragraph 70). I therefore turn to the Murray factors. While not laying down an exhaustive list of relevant considerations, these provide helpful guidance, albeit I have adopted the same approach as the claimants (and as Warby J in Sicri (see paragraph 88)), addressing the factors in reverse order.[173]The circumstances in which, and the purposes for which, the information came into the hands of the publisher (Murray factor (7)). In considering this factor, it is necessary to be clear as to the information in issue. The defendant was aware of certain information that was not in the public domain, which had legitimately come into its possession (as regulator) from its communications with HMRC; at no stage, however, had that information been disclosed to Lord Mendelsohn or 888, and it did not appear in the 2023 RNS. [REDACTED] Allowing, however, that the 2023 RNS stated that clarification was sought regarding considerations identified by the defendant, that was information imparted to 888 by the defendant, in particular in Mr Rhodes’ advisory letter of 7 July 2023. Similarly, the reasons for the section 116 review were explained by the defendant, and included “the nature of the responses” provided by the claimants (initially imparted orally, the reasons for the review were then set out in the statutory notifications required under section 116 of the 2005 Act). The purpose of the defendant’s imparting of the information in question was to provide guidance to a licensee (888) consistent with its statutory objective of keeping crime out of gambling.[174]The effect on the claimants (Murray factor (6)). Although the claimants have said the dissemination of information in the 2023 RNS was “highly damaging and distressing” (paragraph 18 amended particulars of claim) it is hard to see this as resulting from the 2023 RNS, as opposed to being the entirely predictable consequence of the very public business proposal the claimants had advanced notwithstanding the existence of an ongoing criminal investigation into the company they had formerly run, operating in the same highly regulated sector. In this regard, it is notable that there was already widespread publicity (in the mainstream press and trade publications) both as to HMRC’s investigation into the affairs of GVC during the period of the claimants’ leadership of that company, and in respect of FSGI’s very public interest in, and proposals for, 888. Entain’s widely reported RNS of 31 May 2023 had made clear that, although it was seeking to agree a DPA, it was likely to face a substantial financial penalty and there was still an ongoing criminal investigation into what was acknowledged may have been “historical misconduct involving ... former employees”. In subsequent reports, on FSGI’s investment in 888 and on the Proposal it had made for the claimants’ involvement in the future management of that company, the links between the claimants and the HMRC investigation were continually referenced (see, for example, the Financial Times on 6 June 2023; The Racing Post (citing an industry newsletter earlier that week) of 12 June 2023; and The Telegraph of 18 June 2023).[175]Given that context, I am satisfied it would have been obvious to a reasonable person in the position of the claimants that the Proposal was bound to raise questions of suitability for regulatory purposes. That much would have been apparent to anyone with experience in the gambling industry, given the defendant’s statutory objective to prevent gambling being associated with crime and its public statement of principles, which make clear how that objective will inform decisions on suitability for licensing purposes. Indeed, the point had been identified in The Racing Post article of 12 June 2023, citing the concerns raised by a gaming and leisure analyst relating to Mr Alexander’s proposed appointment at 888 given the “possible risks” from the HMRC investigation. It was, moreover, a point that was highlighted in strategic advice provided to the claimants on 13 June 2023, emphasising the need to assure Lord Mendelsohn “there is no taint to the team and no outstanding investigations”.[176]The claimants have argued that discussions with 888 were still at an early stage, and the suggestion that they take up senior (regulated) positions was merely one option. That was, however, the suggestion that lay at the heart of the Proposal, for which FSGI was actively seeking the support of other shareholders and which the claimants had been content to go before the 888 board in late June 2023. Viewed objectively (albeit from the standpoint of someone in the position of the claimants), the fact that one of the largest gambling companies in Great Britain appeared to be actively considering the Proposal was bound to give rise to questions on the part of the defendant. The 2023 RNS may have included information about the defendant’s advice to 888 and its reasons for commencing the section 116 review, but the communication of that information was the inevitable result of the claimants’ own advancement of the Proposal.[177]The absence of consent and whether it was known or inferred (Murray factor (5)). From 888’s perspective, the 2023 RNS concerned inside information that impacted on market awareness, and it is apparent it considered it was required to make public both the fact that it had terminated discussions with FSGI and that it was the subject of a section 116 review by its regulator. Although Lord Mendelsohn did speak to Mr Alexander shortly before the publication of the 2023 RNS, and made an unsuccessful attempt to speak to Mr Feldman, he did not consult them as to its content and did not seek their consent to its publication.[178]As for the defendant, the 2023 RNS was not its publication and it would not have been in a position to seek the claimants’ consent in that respect. As for what it inferred in this regard, I accept that it was Mr Rhodes’ belief that 888 would have told the claimants that the questions being posed were those the defendant would ask on any application for a PML or a CoCC. Although that was not how Lord Mendelsohn had in fact formulated the questions, the defendant had no reason to think that would not have been communicated (not least as the claimants were aware the defendant had been asking 888 questions relating to FSGI’s shareholding, in particular given its “ongoing consideration of the suitability of the licensees” (referenced in 888’s email to FSGI’s solicitors on 27 June 2023), and 888’s request for further guidance had followed from those initial questions). Regardless of any inference the defendant might have drawn as to the claimants’ knowledge when they provided their responses to Lord Mendelsohn, however, it is right that it did not notify them of its decision to instigate a section 116 review into 888, or its reasons for that, albeit that would be consistent with the statutory requirement (limiting notification to the licence holder) and its own publicity code.[179]The nature and purpose of the intrusion (Murray factor (4)). In considering this question, it is necessary to distinguish between the different intrusions in issue. The 2023 RNS was 888’s publication of information; some of the information could be said to have derived from the defendant, but the defendant’s input into the 2023 RNS was otherwise limited to its tracked change amendments. The purpose of 888’s communication of information in the 2023 RNS was to satisfy its obligations as a publicly listed company to ensure that otherwise inside information – the fact of, and reasons for, the termination of discussions with FSGI; and the fact of, and reasons for, the commencement of a statutory review by its regulator – was publicly available to the market. The purpose of the defendant’s prior communication of information to 888 was(i) to provide it with guidance as to the approach the defendant would be likely to adopt if 888 proceeded with the Proposal; and(ii) consistent with its statutory obligation to notify 888 that it was to be subject to a section 116 review, and to explain the reasons for that. The purpose of the defendant’s input into the wording of the 2023 RNS was to ensure its position was accurately represented.[180]The place at which the claimant was engaged in the activity claimed to be private/confidential (Murray factor (3)). As I have already observed, the claimants’ involvement in FSGI’s investment in 888 and in the Proposal was very much in the public domain; it was widely reported both in the mainstream press and trade publications, which had also repeatedly referred to the link between the claimants and the HMRC investigation into GVC/Entain. Although the answers provided to Lord Mendelsohn were in a private email exchange, the claimants have said their lack of confidence that this would not be disseminated more widely informed their reluctance to provide more detail. As for the fact that 888, guided by considerations expressed by the defendant, had found the claimants’ answers to be inadequate, the defendant’s advice (as set out in Mr Rhodes’ letter of 7 July 2023) essentially set out that which was already a matter of public record in terms of its approach to its regulatory functions. Although the letter of 7 July 2023 had not in fact been widely disseminated by 888, the defendant had not expected it to remain private (as Mr Glass observed, the expectation was that it would be communicated to 888’s shareholders and would thus enter the public domain), and there had already been press speculation as to the risk the claimants’ link to the HMRC investigation might pose for the Proposal (see The Racing Post article of 12 June 2023).[181]The nature of the activity in which the claimants were engaged (Murray factor (2)). Similar points can be made in relation to this factor. The claimants were part of high profile bid to take charge of a publicly listed company, which had a significant presence in the highly regulated gambling industry, with some 70 per cent of its business in Great Britain; the very public nature of the claimants’ activity is apparent from the press reports at the time. Although the email exchange with Lord Mendelsohn was not in the public domain, the compliance issues being raised were already the subject of public comment and the defendant had no expectation that the advice provided in its letter of 7 June 2023 (largely drawn from its publicly available guidance) would remain private; as for the claimants, it was their evidence that they had no confidence that their answers to Lord Mendelsohn would not be disseminated more widely.[182]The attributes of the claimants (Murray factor (1)). As businessmen in the public eye, the claimants could reasonably expect to face greater public scrutiny than might be acceptable for a private individual, although that could also mean the effect of publication might be all the greater (ZXC, paragraph 140). In the present case, however, the claimants had chosen to be involved in a very public business proposal relating to one of the largest gambling companies in Great Britain, against the backdrop of a widely reported criminal investigation into another significant company, operating in the same highly regulated industry, in which they had previously held key leadership roles.[183]Thus having regard to the Murry factors, and to all the relevant circumstances of this case, I am unable to see that the claimants have established a reasonable expectation of privacy in respect of the information in issue, or that it had the necessary quality of confidence (per Coco v Clarke). The 2023 RNS was 888’s disclosure to the market that it had terminated discussions with FSGI in respect of the Proposal, and that it was subject to regulatory review. Those discussions had been the subject of reports in the trade and mainstream press, and were very much in the public domain. Moreover, given that 888 was a publicly listed company, ending consideration of the Proposal for 888’s future management, would necessarily require public disclosure, as would the announcement of the defendant’s section 116 review. Although the specific exchange of questions and answers that were the immediate catalyst for these events had not taken place in public, the regulatory concerns they addressed had already been the subject of press comment and were inevitable given the ongoing, and widely reported, criminal investigation into the company in which the claimants were formerly engaged in senior positions, and given the statutory objectives the defendant, as the relevant regulator, was bound to pursue.[184]If I am wrong in my overall assessment in this regard, then I am clear that any reasonable expectation of privacy or confidence could only arise in relation to a very limited part of the information contained within the 2023 RNS [REDACTED]. Given the matters the defendant would take into consideration when determining questions of suitability was publicly available, and given the claimants’ own assessment of the potential for wider dissemination of their answers, any such expectation of privacy, or quality of confidence, would, however, be significantly reduced (ZXC, paragraph 70).[185]Proceeding then on this alternative basis, to the extent that the 2023 RNS thus published the claimants’ private and confidential information, the next question (question (iii)) is whether the defendant should be held responsible? Straightforwardly considering that question in respect of the 2023 RNS, the answer must be in the negative. Consistent with its obligations as a publicly listed company, this was 888’s publication, making transparent that which was otherwise inside information as to the termination of its consideration of FSGI’s proposal and the commencement of the section 116 review. Although the defendant had the opportunity to make amendments to the draft RNS, the tracked changes show it limited itself to ensuring its position was correctly represented, it did not otherwise seek to interfere. To the extent the defendant thereby participated in the dissemination of the 2023 RNS, it played a secondary and purely instrumental role in the disclosure, which provides it with a defence to this claim (Law of Privacy and the Media, paragraph 11:42).[186]The claimants object, however, that the defendant had communicated information to 888, which was then disseminated in the 2023 RNS: [REDACTED] On the assumption (contrary to my earlier conclusions) that such information gave rise to a reasonable expectation of privacy, or had the necessary quality of confidence, the question is whether it would, on the facts of this case, be just to hold the defendant responsible for 888’s publication of that information (McManus v Beckham).[187]It seems to me the answer to that question in this case ultimately depends on the determination of the stage two exercise. If there was no public interest in the dissemination of the information in issue, or if the publication was disproportionate to that interest, then it is hard to see why the defendant should not be held responsible: if (applying Waller LJ’s test in McManus v Beckham) the defendant was aware that 888 would be publishing information that it had imparted, and that that would amount to a misuse of information that was private and confidential to the claimants, there would be no injustice in holding it responsible for damage caused as a result.[188]In this regard, the claimants point to the defendant’s own treatment of these matters in its communications at the time (e.g. heading its 27 June 2023 letter to HMRC “private”; marking its 12 July 2023 letter to DCMS “official sensitive”), and to its adoption of the code name “operation rattle”; they also place reliance on the guidance provided in the defendant’s publicity code. I address the publicity code below, but do not find the other points assist the claimants’ case. The communication to HMRC related to what was understood to involve an ongoing criminal investigation; there is no dispute that that information was private, and the defendant was careful not to communicate it to 888. Similarly, the use of a code name within the defendant was, as Mr Cooper explained, because this related to the HMRC investigation, which had a criminal aspect. As for the letter to DCMS, that not only referenced the HMRC investigation, it also contained information that was commercially sensitive to 888. In contrast, in providing the relevant advice to 888, in Mr Rhodes’ letter of 7 July 2020, there was no suggestion that this was private or confidential; indeed, the defendant’s expectation was that it would be disseminated to 888’s shareholders and would thus enter the public domain.[189]The claimants are correct that the defendant’s publicity code, while recognising the need for openness and transparency, expressly acknowledged that information about an ongoing regulatory investigation be limited given the potential relevance of the article 8 rights of “those under, or likely to be under, investigation”. The defendant points out that that would suggest a focus on the rights of those who already held licences or who were applying to do so: the defendant’s powers of investigation would not otherwise arise. Moreover, as the publicity code also made clear, an investigation might nevertheless be publicly announced in exceptional circumstances, if desirable to maintain public confidence, or where the matters under investigation were the subject of public concern, speculation or rumour (paragraphs 7.5-7.8).[190]Whether or not the publicity code would apply to the claimants (who neither held nor were applying for licences at the relevant time), I would accept that the defendant was imparting information in this case - about its concerns, and about its reasons for embarking upon a section 116 review - in exceptional circumstances. There had already been considerable speculation and rumour in the press about the Proposal, and there was an obvious public interest in the fact that 888 were actively considering this, notwithstanding the fact that it would involve appointing to leadership roles individuals who had previously held key positions in a company that was the subject of an ongoing criminal investigation. In considering 888’s dissemination of this information in the 2023 RNS, the defendant was entitled to take the view that this was a necessary and proportionate communication of its position.[191]The claimants have objected that there is no evidence of the defendant having made an evaluative judgement under its publicity code in respect of the disclosures that informed the 2023 RNS. As they correctly observe, however, regardless of any view taken by the defendant (under its own publicity code or more generally), the assessment at stage two requires the court to make its own objective evaluation as to whether the claimants’ expectation of privacy or confidence is outweighed by the defendant’s right to freedom of expression. In this regard, I have already made findings as to the extent of the claimants’ rights: insofar as it can be said that any reasonable expectation of privacy or confidence arose, this must be limited [REDACTED].[192]As for the defendant, in publishing the information in question (foreseeing that it would then be re-published by 888), it was exercising its article 10 right to freedom of expression as a regulatory body, required to act in accordance with the statutory objective of preventing gambling being associated with crime. Applying the necessary intensity of focus on the comparative rights in issue, I am satisfied the defendant has demonstrated a public interest in its publication, specifically by reference to the particular contribution made by its provision of the information in issue in this instance. Consistent with its statutory objective, by identifying the questions it would ask on any application for a PML, or CoCC, the defendant was providing guidance relevant to 888’s consideration of the Proposal for its future management. Similarly, in advising that the responses received would not provide adequate assurance should the defendant have to consider a PML application or CoCC in accordance with the Proposal, the defendant was providing information in the public interest, again consistent with the statutory objective of preventing gambling being associated with crime. To the extent this was information in which the claimants had a reasonable expectation of privacy or confidence, that was outweighed by the defendant’s right to freedom of expression, in particular given the widely known regulatory environment, the very public nature of the Proposal, and the reporting that had already taken place, linking this to the ongoing HMRC investigation into the company at which the claimants formerly held key leadership positions.[193]The defendant’s publication to 888 was, moreover, limited to an explanation of guidance that was already in the public domain, applicable to the Proposal under consideration. In the circumstances, the defendant’s use of the information was proportionate in its exercise of its right of expression in this context.[194]Having regard to all the relevant circumstances, and for all the reasons provided, I am satisfied that the claims of misuse of private information and breach of confidence are not made out in respect of the 2023 RNS.

The March 2024 statement

[195]Turning then to the claim in respect of the March 2024 statement, the claimants’ complaint is that the defendant thereby published information that it had only terminated the licence review because their proposed involvement in 888 had come to an end, as opposed to their having provided satisfactory answers to the considerations that had initially led the defendant to commence the review.[196]Asking the first question identified by the parties ((i) did this contain the claimants’ information?), it is the claimants’ case that, to the extent the March 2024 statement communicated that the defendant had an adverse view of the claimants’ proposed involvement in 888, and did not consider they had provided necessary assurances, this was properly to be seen as their information. This is not entirely intuitive (the defendant’s reasoning communicated for ending the review might most obviously seem to be information belonging to the defendant and 888), but I can accept that, in explaining that the defendant had “remained unsatisfied” with the responses provided in respect of its questions concerning the “risks and appropriateness” of the Proposal, and that its conclusion of the review did not mean it had moved from that position (making clear it had made no determination or assessment as to the suitability of the individuals concerned), this could be seen to be information about the claimants. In this regard, I further accept that, although the March 2024 statement did not name the claimants, they would have been identifiable from the information provided, as is apparent from the IGamingBusiness report of 22 March 2024.[197]Having thus identified the information in issue, the second question (question (ii) (a), (b)) asks whether the claimants had a reasonable expectation of privacy in respect of that information, and whether it was confidential? In this regard, I have again sought to consider each of the Murray factors, albeit recognising there is a degree of overlap with the earlier analysis, relating to the 2023 RNS.[198]The circumstances in which, and the purposes for which the information came into the hands of the publisher (Murray factor (7)). In the March 2024 statement, information as to FSGI’s responses was provided to the defendant by 888 for the purpose of obtaining “formal advice and guidance” and for confirmation as to whether FSGI’s responses could “be relied upon for regulatory assurance” (see Lord Mendelsohn’s (draft and final) letters to the defendant on 14 July 2023). As for the further information relied on – the defendant’s view of those responses and that the conclusion of the section 116 review did not mean this had changed – that primarily related to the defendant’s assessment of material already in the public domain: the fact of the HMRC investigation into GVC/Entain for the period when the claimants were in key control functions at that company, and the defendant’s approach to its regulatory functions, as informed by its statutory objective to keep gambling free of crime. The only additional information was that the defendant’s conclusion of the section 116 review did not mean that it had made any determination or assessment of suitability; merely that the Proposal was no longer being pursued.[199]The effect on the claimants (Murray factor (6)). For the reasons I have already explained in relation to the 2023 RNS, I cannot see that the March 2024 press statement had any effect on the claimants that was not already the entirely predictable consequence of the very public business proposal advanced in the context of an ongoing criminal investigation into the company they had previously run, in the same highly regulated sector. I further note that, by this time, Mr Feldman had also been invited to attend an interview under caution.[200]The absence of consent and whether it was known or inferred (Murray factor (5)). The defendant did not seek the claimants’ consent to the March 2024 statement and had no reason to consider they would have given their consent.[201]The nature and purpose of the intrusion (Murray factor (4)). I am satisfied that the March 2024 statement was a reactive response to media enquiries following the publication of 888’s March 2024 RNS. Mr Rhodes had drafted initial “lines to take”, and the defendants’ communication, legal, and enforcement teams had then finalised the statement to be provided in response to any queries. The reason for producing a statement (departing from the defendant’s usual approach) was because Mr Rhodes had become aware of a suggestion that the defendant had concluded the section 116 review making no adverse findings on questions of suitability (Oliver Gill’s enquiry of 6 December 2023), and had no concerns relating to the individuals that FSGI had previously proposed to appoint into key management positions at 888 (the reference to FSGI’s correspondence to this effect at the meeting on 22 January 2024). Given that the defendant was thereby seeking to respond to speculation that the claimants had themselves encouraged (either in the form of FSGI’s correspondence with 888, or by way of Mr Feldman’s provision of information to Mr Gill), I am unable to see this would support an expectation of privacy or confidentiality. In any event, I am satisfied that re-publication of the March 2024 statement was effectively limited to the piece in IGamingBusiness on 22 March 2024.[202]The place at which the claimant was engaged in the activity claimed to be private/confidential (Murray factor (3)) and the nature of that activity (Murray factor (2)). On these factors, the same points arise in relation to the March 2024 statement as for the 2023 RNS.[203]The attributes of the claimants (Murray factor (1)). The claimants’ attributes at the time of the March 2024 statement had not significantly changed from those relevant to the 2023 RNS. Although the Proposal was no longer being actively pursued, this did not mean the claimants were retreating from the public sphere in this regard: FSGI’s immediate response to the 2023 RNS was to say that its efforts would continue (as reported in The Guardian on 14 July 2023), and Mr Feldman was still seeking to influence media reports in December 2023.[204]Considering all the circumstances from the perspective of a reasonable person, standing in the claimants’ position at the relevant time, I cannot see that there could have been any reasonable expectation of privacy or confidence in respect of the information in the March 2024 statement. These were well-known businessmen who had formerly held key positions in GVC/Entain, a company that was then the subject of a criminal investigation relating to the period when the claimants were chairman and CEO, facts that were very much in the public domain. Notwithstanding that context, the claimants had then chosen to be part of a very public business proposal concerning 888, a publicly listed company with a significant presence in the gambling industry in this country, advancing the (widely reported) Proposal to put the claimants into senior roles in 888. Objectively speaking, the regulatory questions that would inevitably arise in these circumstances could not attract any reasonable expectation of privacy or confidence, nor could the claimants realistically expect their responses (or absence of responses) to those questions to have those qualities.[205]Should I be wrong in my assessment in this regard, I have, in any event, gone on to undertake the balancing exercise required at stage two. There is no issue in respect of the March 2024 statement that this was the defendant’s publication; it was thereby exercising its article 10 right to freedom of expression as the relevant statutory regulator. More particularly, in this instance, the defendant had expressly considered the question of publicity and reached the conclusion that there was evidence of speculation and rumour such as to exceptionally warrant the disclosure of the information in issue. That said, regardless of any view formed by the defendant, the assessment at stage two is objective in nature, and I must carry out my own evaluation as to whether any expectation of privacy or confidence held by the claimants was outweighed by the right of the defendant to freedom of expression.[206]Thus considering this question in the alternative, I have again proceeded on the basis that any expectation of privacy or confidence must be limited to the fact that the claimants had failed to provide satisfactory responses when 888 had communicated the compliance questions identified by the defendant, and that this remained the position at the conclusion of the section 116 review. In this regard, I am satisfied that, given the requirement upon it, as regulator, to uphold the statutory objective of preventing gambling being associated with crime, the defendant has demonstrated a public interest in its use of this information. More specifically, and applying the required intensity of focus on the comparative rights in issue, I am satisfied of the particular contribution made by this publication given the very public nature of the debate regarding the Proposal in the context of the widely reported HMRC investigation into GVC/Entain. Although there was no longer evidence of the active pursuit of the Proposal by the time of the March 2024 statement, there remained a very real interest in these events given the approval of the DPA in early December 2024, which had left open the possibility of further criminal proceedings. As for the claimants’ article 8 rights in this context, these must inevitably carry less weight [REDACTED].[207]I am, furthermore, satisfied that the defendant’s exercise of its article 10 right was both necessary and proportionate. [REDACTED][208]Having regard to all the relevant circumstances, and for all the reasons provided, I find that the claims of misuse of private information and breach of confidence are not made out in respect of the March 2024 statement.

Remedy

[209]Given my findings on liability, the question of remedy does not arise. As, however, I have presided over the trial, I make the following findings in the alternative, should it be considered I have erred in my conclusions on liability.[210]The claimants claim damages for distress, loss of dignity and harm to professional standing, said to have been caused by the defendant’s misuse of their private information or breach of confidence. They further claim that their losses have been aggravated by what they contend amounted to high-handed conduct on the part of the defendant (characterised as having “stage-managed the disclosures”), by its failure to follow its own guidance, and by what is said to have been its misleading responses to the claimants’ complaints.[211]I have set out the evidence given by the claimants as to the impact they say they have suffered; there is, however, no corroboration of what has been said and, other than the example provided by Mr Feldman in re-examination, no detail of any particular opportunity or social connection lost as a result of the publications. I accept that the claimants felt a sense of anger and grievance at the frustration of their discussions with 888, and their inability to further advance the Proposal; I am, however, unable to see that they have demonstrated loss or harm beyond that.[212]In Mr Feldman’s case, the one example given relates to a connection (an introduction to the CEO of Draftkings) that arose during the pursuit of FSGI’s interest in 888, there is nothing to suggest that went any further. As for Mr Feldman’s concern about what his children might see in the future, relating to how these matters might appear in on-line reports, I agree with the defendant that it is hard to see how the two publications in issue would have a greater impact than that which would already have been reported (linking Mr Feldman to the HMRC investigation into GVC/Entain) or that which is likely to be reported in relation to the criminal charges he now faces. As for Mr Alexander, his evidence to me was that, consistent with his long-term plans, he had retired from the industry when he left GVC; in the circumstances, save for his interest in FSGI’s investment in 888, I am unable to see what other loss Mr Alexander suffered as a result of the 2023 RNS (he does not suggest he suffered any separate impact in consequence of the March 2024 statement).[213]All that said, I do accept that the claimants experienced hurt and anger at 888’s 2023 RNS and, to the extent that this amounted to the misuse of their private information or breach of confidence, they would be entitled to damages in this regard. I would also accept there could be some basis for thinking that the publication of information disclosed by the defendant to 888, as to the view it would take of the responses provided by FSGI, might have impacted upon the claimants’ standing at that particular point in time, although it is hard to separate out any such impact from the effect of reports relating to the HMRC investigation into GVC/Entain, and the obvious implications this had for any proposed return by the claimants to key positions in the gambling industry in this country. This was a point that had been identified in the press, and drawn to the claimants’ notice (in the advice of 13 June 2023), before the 2023 RNS; it was, as I have found, an entirely predictable consequence of their decision to involve themselves in a high-profile business proposal for 888 notwithstanding an ongoing criminal investigation into the company they had formerly run in the same, highly regulated, industry.[214]Otherwise, noting that the claimants’ evidence is focused on the 2023 RNS and does not suggest any sensible way of distinguishing between the publications in this respect, in assessing the appropriate level for any award for hurt and distress in this case, and allowing for some loss of standing, I adopt a global approach to the impact of both publications. Having regard to the considerations identified in Sicri and Gulati, I find that, while the scope of the publications might have been broad (at least within the industry), the impact on the claimants’ standing has to be assessed as marginal given the (earlier) media reports relating to the HMRC investigation, and the (subsequent) reporting relating to the criminal charges both now face. As for any immediate sense of hurt, much of the claimants’ evidence suggests a greater sense of grievance arising from the way in which 888 broke off discussions with FSGI rather than from the publication of the information in issue. Limiting compensation to that which relates to the damage arising from any misuse of private information or breach of confidence, and having regard to awards made for similar forms of injury, I do not consider a sum higher than £12,000 necessary to compensate for the damage suffered in this instance.[215]I would make no award for aggravated damages. I have not found that the defendant acted in a high-handed manner in this case; on the contrary, I have found that it at all times acted in accordance with its statutory objective.[216]I also see no basis for awarding injunctive relief: the defendant has already said that it will not repeat the information, and there is no reason for thinking that it will do so.

Disposal

[217]For the reasons provided in this judgment, the claimants’ claims are dismissed.