The New Lottery Company Limited & Anor v The Gambling Commission [2025] EWHC 1710 (TCC)

[2025] EWHC 1710 (TCC)

Case Nos: HT-2022-000132 and HT-2024-000035

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY & CONSTRUCTION COURT (KBD)

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 7 July 2025

Before

Sir Vivian Ramsey

Between

The New Lottery Company LimitedClaimants

Daniel Toledano KC, Azeem Suterwalla KC and Khatija Hafesji (instructed by Bryan Cave Leighton Paisner LLP) for Claimants

Rose Grogan (instructed by Hogan Lovells International LLP) for Defendant

Mark Howard KC and Joseph Barrett KC (instructed by Quinn Emanuel Urquhart & Sullivan LLP) for Interested Parties

Valentina Sloane KC and Jonathan Lewis (instructed by Simmons & Simmons LLP) for Respondent

Hearing Hearing date: 28 April 2025

APPROVED JUDGMENT

Sir Vivian Ramsey:

[1]This judgment deals with two applications by the Claimants for production of documents. One is against the Interested Parties (“Allwyn”) and the other is against a non-party, the Respondent (“Rothschild”). The application against Allwyn also raises an issue about the status of Interested Parties and, in particular, whether and to what extent they are a “Party” in these proceedings. On 1 May 2025 I made the relevant orders on the two applications, amending the order on the Allwyn Application on 12 May 2025. I now set out the reasons for those orders.

[2]These applications are made in a case which involves the Fourth National Lottery Competition (“the Competition”) which was the procurement process run by the Defendant between 2019 and 2022 for the award of the Fourth National Lottery Licence (“the Licence”). The First Claimant is a company established by the Second Claimant, for the specific purpose of competing for that Licence. The Claimants did not succeed in obtaining the Licence which was awarded to Allwyn.

[3]The Claimants commenced these proceedings against the Defendant in which they make two claims. Their first claim (“the First Claim”) challenges the fairness of the Competition, on the basis that the Defendant breached the Concession Contracts Regulations 2016 (“CCRs”), which governed the running of the Competition and it also challenges the decision to award the Licence to Allwyn.

[4]The Claimants also brought a second claim (“the Modifications Claim”) arising out of modifications which have been made to the agreements governing the Licence, namely the Enabling Agreement and the Licence itself. The Claimants claim that the Enabling Agreement and Licence have been substantially modified from the form initially entered into and which formed the basis of the procurement process for the award of the contracts. The Claimants argue that, if those modifications had formed part of the Licence, as they should have done or if they had been the subject of a new procurement process, as required by the CCRs, they would have had the opportunity of participating and winning a procurement which should and would have been run on a different basis.

[5]On 3 June 2024 Allwyn applied to be an interested party in these proceedings and at a Case Management Conference on 10 June 2024 Waksman J made the following

[6]On 15 July 2024, Allwyn filed the Allwyn Statement of Case which was amended on 18 October 2024.

[7]On 20 August 2024, the Claimants served a Request for Further Information (“the RFI”) on Allwyn arising out of the Allwyn Statement of Case. Allwyn responded to the RFI on 24 September 2024 (“the RFI Response”).

[8]On 10 October 2024 the Claimants wrote to Allwyn seeking to inspect documents referred to in the Allwyn Statement of Case under CPR r.31.14. Allwyn opposed the Claimants’ entitlement to inspect those documents and on 11 November 2024 the Claimants made an application to the court under CPR r.31.14. Allwyn wrote on 21 November 2024 to indicate that they were a “non-party” for the purposes of that application. However, on 12 December 2024, Allwyn cross-referenced the documents it had referred to in the Allwyn Statement of Case to the documents disclosed by the Defendant and, where that disclosure did not include the documents subject to that application, Allwyn agreed to provide the documents.

[9]The Claimants’ current application for disclosure from Allwyn was initially issued on 7 February 2025, seeking disclosure under CPR r.31.6 and CPR r.31.12. Ten categories of disclosure were sought, set out in the table at Annex 1 to the Draft Order. Allwyn contended that it was a “non-party” for the purposes of CPR Part 31 and on 31 March 2025 the Claimants then issued its second application for non-party disclosure under CPR r.31.17, as an alternative to its earlier application. Together, I shall refer to those applications as “the Allwyn Application”.

[10]On 11 February 2025, the Claimants made an application pursuant to CPR r.31.17 against the Respondent (“Rothschild”), seeking non-party disclosure (“the Rothschild Application”).

[11]The Claimants state that the Rothschild Application relates to various allegations made by the Claimants in respect of the First Claim. First, the Claimants allege that the Defendant did not adequately investigate a conflict of interest, or apparent conflict of interest, in respect of its use of Rothschild. The Claimants state that Rothschild had been appointed as the Defendant’s Lead Financial and Commercial adviser for the Procurement in July 2019. The alleged conflict of interest arose on the alleged basis that, up to and after its appointment by the Defendant, Rothschild had been retained by Allwyn to advise and work on its investment in the Greek lottery operator OPAP.

[12]Secondly, the Claimants allege that the Defendant did not adequately investigate a conflict of interest, or apparent conflict of interest, in respect of its use of Rothschild, when in 2021 during the Competition, one of Rothschild’s affiliates made a strategic investment in a bond issued by the Sazka group, the previous name of what is now the Allwyn group, the eventual winner of the Competition.

[13]Thirdly, the Claimants allege that Allwyn breached the Media and Communications Protocol put in place during the Procurement and the Defendants did not take adequate action in response to those breaches, including disqualifying Allwyn from the Competition but, instead, Allwyn benefited from Rothschild interceding on its behalf concerning those breaches.

[14]Fourthly, the Claimants allege that the Defendant did not take adequate steps to investigate the explanation for the material movements in Allwyn’s Operator Share of Surplus and the Contribution to Good Causes in its bid, between Phases One and Two of the Competition, both of which were key components of each applicant’s bid and which were scored by the Defendant in evaluating the bids.

[15]Fifthly, the Claimants allege that the Defendant made manifest errors in the scoring of the Claimants’ bid and Allwyn’s bid, including in respect of the Financial Strength question which it is admitted by the Defendant that Rothschild advised upon.

[16]Sixthly, the Claimants allege that the Defendant failed to give appropriate feedback to the Claimants, in accordance with the Invitation to Apply, following Phase 1 of the Procurement, which fundamentally prejudiced the Claimants’ Phase 2/final bid, resulting in its failure.

[17]Seventhly, the Claimants allege that the Defendant applied undisclosed criteria to the evaluation in the Competition, resulting in several parts of the Claimants’ bid being wrongly scored.

[18]Eighthly, the Claimants allege that, in various ways, the Defendant failed to ensure equal treatment of the bidders during the Procurement, including by providing guidance to Allwyn concerning the level of its Operator Share of Surplus.

[19]The Claimants say that the Defendant admits that Rothschild was involved in the Competition process as the “Lead Financial Advisor” and as the Defendant’s Commercial Advisor advising on the “Financial Strength” Pass/Fail question which is an issue in an evaluation dispute in the First Claim. In order to fully advance their conflicts of interest claim, the Claimants say that they seek to understand the full extent of Rothschild’s role in the Competition process and have reasonable cause to believe that its role went considerably beyond that admitted by the Defendant.

[20]In summary, the Claimants say that the terms of engagement dated 19 July 2019, between Rothschild and the Defendant are widely drafted and included, inter alia, obligations to oversee the project management of the Competition and to co-ordinate the key workstreams, to assist in stimulating demand among potential bidders, to lead bidder engagement, to lead the financial workstream, to assist in evaluation of bids and suitability of bidders, to assist in negotiating licence terms, to work alongside the Defendant in managing its stakeholders, communications and PR teams, and to work alongside the Defendant in securing approvals that may be required. The Claimants submit that the wider the terms of engagement, the greater Rothschild’s role is likely to have been in the Competition and the greater the potential for a conflict of interest between the Defendant and Rothschild, in respect of Allwyn.

[21]The Claimants say that the Defendant has confirmed that in its role in advising on the “Financial Strength” pass/fail question, Rothschild had access to at least the following information:(i) all sections of every Applicant’s application;

(ii) internal communications of the Defendant relating to policy recommendations, the VDR, and numerous meetings (including but not limited to Applicant clarification meetings, Applicant Phase One feedback meetings, and Applicant presentations);

(iii) Clarification Questions and responses relating to Financial Strength (before the responses were published to Applicants);

(iv) Applicant feedback;

(v) evaluator training material before it was finalised;

(vi) documents created internally at the Defendant regarding the design of the Licence terms; and

(vii) Applicant presentations as delivered at Rothschild offices, including follow up presentation questions as received from Applicants. Furthermore, the Claimant says that it is evident from disclosure that Rothschild’s role extended widely, with members of the Rothschild team invited to provide input into multiple areas of the process (including its design) and to participate in moderation sessions.

[22]In addition, the Claimants say that employees of Rothschild were copied into correspondence concerning evaluation matters that went beyond the Financial Strength question and that there is evidence that Rothschild had a wider role in the conduct of the Competition process, the lawfulness of that process being the subject of challenge in the First Claim. Further, the Claimants say that they also have evidence, in the form of the RFI Response from Allwyn, that Allwyn engaged the services of Rothschild twice, in 2018 and 2019, in relation to the Greek Lottery Operator, OPAP and that Allwyn paid a “discretionary fee” to Rothschild in connection with OPAP. Separately, in 2018, Allwyn engaged Rothschild to assist it in finding potential investors to make a minority investment into the Sazka Group. This “sell-side” mandate would, the Claimants state, necessarily have involved Rothschild expressing positive opinions about Allwyn/Sazka in general and, in particular, in respect of its financial strength, amongst other things.

[23]The Claimants also state that there is evidence of direct communications taking place between Rothschild and Allwyn during the Competition, but without the Defendant being involved. In particular, they say that(i) Ed Duckett of Rothschild, then a Managing Director, had an “off the record” conversation with Allwyn in January 2021 to explain the reasons for timeline changes to the Competition which is relevant to the pleaded issues on the conflict of interest;

(ii) in or around 9 March 2021, Ed Duckett had a conversation with Alastair Ruxton of Allwyn, without the Defendant being present, which Mr Duckett then reported to the Defendant; and

(iii) Allwyn had a direct conversation with Ed Duckett in Autumn 2021 regarding a confidential transaction rather than going directly to the Defendant to inform them of this development.

[24]With that introduction to the applications and the roles of Allwyn and Rothschild, I now turn to consider those applications. The Allwyn Application

[25]There is one issue which arises on the Allwyn Application, that of the position of an interested party in relation to directions given by the court, which it is convenient to deal with at this stage. Status of an Interested Party

[26]In their application dated 7 February 2025, the Claimants referred to both CPR r.31.6, which addresses standard disclosure and CPR r.31.12, which governs specific disclosure by a party. In their application dated 31 March 2025 the Claimants sought non-party disclosure under CPR r.31.17, as an alternative.

[27]Those provisions are in the following terms:(1) CPR r.31.6 concerns standard disclosure and provides: Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which– (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case; and (c) the documents which he is required to disclose by a relevant practice direction.

(2) CPR r.31.12 concerns specific disclosure and provides: (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search.

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2). (3) CPR r.31.17 concerns non-party disclosure and provides: (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where– (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection. Claimants’ Submissions

[28]The Claimants submit that the appropriate provision is CPR r.31.12 on the basis that Allwyn is a “party” or should be treated as a “party” within the CPR and therefore the Claimants are entitled to make an application against Allwyn as a party. If, contrary to that, Allwyn is a “non-party” then the Claimants seek disclosure from Allwyn as a non-party under CPR r.31.17.

[29]The Claimants note, first, that the term “party” is not defined in CPR Part 31. Part 2 of the CPR which contains the application and interpretation of the civil procedure rules, includes a “glossary” (r.2.2) and “interpretation” (r.2.3) section neither of which define a party. The Claimants say that the closest the CPR comes to considering the definition of a party is in Part 19 (“parties and group litigation”), where at CPR r.19.1 it provides that “any number of claimants or defendants may be joined as parties to a claim”. This, they submit, cannot be construed as a definition of a party, rather the wording (“as parties”) indicates only that a claimant or a defendant can be a “party” and that these may be unlimited in number. It follows that the term “party” in CPR Part 31 is not a defined term under the civil procedure rules, and it is therefore capable, in principle, of including someone other than a claimant or a defendant to the proceedings.

[30]Secondly,the Claimants submit that when a particular provision of the CPR refers to a “party”, that term is capable of including an “interested party”. They refer to the decision in Bechtel Limited v High Speed Two (HS2) Limited & Balfour Beatty Group Limited

[2021] EWHC 640 (TCC)

which considered the application of CPR r.44.2, which provides that a court has a discretion as to “whether costs are payable by one party to another”. The Claimants submit that, like CPR Part 31, CPR Part 44 does not define a “party”. In Bechtel, drawing on the House of Lords’ decision in Bolton Metropolitan District Council v Secretary of State for the Environment

[1995] 1 WLR 1176

concerning a planning appeal where the successful developer is often an interested party, it was held at [38] that the interested party in that procurement case could recover some of their costs.

[31]On that basis, the Claimants contend that it follows that, for the purposes of Part 44, an interested party can be a “party” and that, although Bechtel concerned Part 44, there is no reason in principle why an interested party cannot also be regarded as a “party” for the purposes of Part 31.

[32]Therefore, applying the approach taken in Bechtel and Bolton, the Claimants submit that whether an interested party is a “party” for the purposes of r. 31.12 is a question that can only be decided on the specific facts of the disclosure application before the court. However, when determining that question, it is relevant to consider the scope of the interested party’s involvement in the proceedings. It is a particular feature of procurement claims that the challenge, by its very nature, will affect the rights of a winning bidder as observed in Bechtel at [21].

[33]However, as Bechtel noted at [25(1)], being the winning bidder is insufficient to become an interested party and still less to recover costs. The Claimants submit that it is necessary to consider the scope of the interested party’s involvement by reference to the court’s order which formalised the fact and extent of the interested party’s involvement and it refers to Bechtel at [25(4)-(5)]. Having regard to the scope of the interested party’s involvement, the Claimants submit that the court may ask whether there are specific or unusual features of an interested party’s involvement which may justify them being treated as a “party” rather than a “non-party” for the purposes of the relevant part of the CPR.

[34]In this case, the Claimants submit that there are the following specific and unusual features of Allwyn’s involvement as an interested party in these proceedings, which call for it to be treated as a “party” for the purposes of CPR Part 31:(1) Allwyn were granted permission to file a statement of case for trial, as well as evidence, make written and oral submissions and cross-examine witnesses, insofar as they have a separate interest to the Defendant in respect of the issues raised in the Allwyn Statement of Case and any other issues to be determined at trial.

(2) The Allwyn Statement of Case was filed on 15 July 2024 and relates to Allwyn’s claimed separate interest in the proceedings. That pleading raised a number of allegations which had not previously been raised in these proceedings and which were outside the knowledge of the Claimants.

(3) The Allwyn Statement of Case also referred, or alluded to, several documents to which the Claimants did not have access. Certain of those were provided under CPR r.31.14 and the remainder are the subject of this disclosure application.

(4) Standard disclosure was not provided in these proceedings but instead the court ordered issues-based disclosure. The Claimants say that the Allwyn Statement of Case, which introduced a number of new issues to the proceedings, was provided afterthe court had made its issues-based disclosure order. This means that it cannot be presumed that the Defendant’s disclosure will encompass the disclosure sought by way of this Application, even iftheAllwyn Statement of Case had not introduced new issues, and a fortiori where it has done so.

[35]The Claimants refer to the decision in Three Rivers DC v Bank of England (No.4)

[2002] EWCA Civ 1182

where the Court of Appeal, when considering the meaning of the words “likely to” in CPR r. 31.17(3)(a), in the context of a non-party disclosure order, described a “non-party” in the following terms at [29]:

“the person against whom disclosure is sought – being a stranger to the dispute - cannot be expected to decide for himself which of the documents under his control do support the applicant's case or adversely affect the case of one of the other parties to an action in which he is not a party”

. On this basis, the Claimants submit that Allwyn cannot fairly be regarded as a “non-party”. It says that Allwyn, from the extensive scope of their involvement in these proceedings, are perfectly capable of identifying documents under their control which support the Claimants’ case or which undermine the Defendant’s case or Allwyn’s case. They are in no way a “stranger to the dispute”.

[36]The Claimants also contend that Allwyn’s approach to and use of the CPR evidence that they have been selective and inconsistent on the issue of whether or not they are a party. The Claimants note that Allwyn have made a security for costs application under CPR Part 25.12 which provides that “A defendantto any claim may apply under this Section of this Part for security for his costs of the proceedings”. They also say that Allwyn have claimed summary costs in respect of their involvement in the proceedings to date under Part 44. The principles relating to both applications do not expressly refer to the ability of interested parties, or non-parties, to seek relief under those principles. The Claimants submit that, while Allwyn claim they are not parties to the litigation when it suits them, at other times they are content to use provisions made for ‘parties’ under the CPR rules to their benefit.

[37]The Claimants submit that, in those circumstances, the Court should conclude that Allwyn is a “party” for the purposes of CPR Part 31, and therefore, in addition to r.31.17, disclosure can be properly sought against Allwyn under r. 31.12. Allwyn’s Submissions

[38]Allwyn submit that CPR r.31.6 and r.31.12 apply to a “party”, within the meaning of the CPR. As provided in CPR r.19, Allwyn state that “party” for the purposes of CPR r.31 means a claimant or defendant, including a party who is added pursuant to an application under CPR 19.

[39]Allwyn refer to the Technology and Construction Court Guide (“TCC Guide”) at Appendix H which contains the TCC Guidance Note on Procedures for Public Procurement Cases “Appendix H”) at [51] to [61] and state that this specifically identifies and spells out the distinction between being a “party” to the proceedings within the meaning of the CPR on the one hand, and being an “Interested Party” on the other. Decision

[40]The reference to a “party” is usually to a claimant, defendant or an additional party. In the case of procurement claims in the TCC the practice has developed which allows “interested parties” to take part in the proceedings. As stated in Appendix H at [51], procurement claims frequently engage the interests of “interested parties” other than the claimant and the contracting authority. Appendix H states that the term “interested party” is given a wider meaning than in CPR Part 54. For the purpose of Part 54, CPR 54.1(2)(f), defines “interested party” to mean any person (other than the claimant and defendant) who is directly affected by the claim. There is no rule which applies to interested parties in procurement cases in the TCC.

[41]In Appendix H at paragraph 52, the successful bidder and other unsuccessful bidders are given as examples of interested parties who may be affected by the relief sought in a procurement claim or by the disclosure of confidential information contained in a bid. Paragraph 60 states that other interested parties who may express interest in procurement claims include sector regulators, competition authorities and/or sub-contractors.

[42]Paragraph 53 provides that:

“Whilst an interested party may apply to become a full party to the proceedings, its interests can usually be considered and addressed by the Court without that being necessary.”

Similarly, paragraph 57 provides that:

“The Court may direct that an interested party is to be treated as a respondent to an application (CPR 23.1) but a direction to this effect is not essential, particularly in cases of urgency. The Court may order that an interested party is permitted or entitled to participate in particular applications, hearings or issues and/or may order that the involvement of the interested party is to be limited in defined respects.”

[43]Apart from stating in paragraph 61 that an interested party can recover or be required to pay costs, referring to Section 51(3) of the Senior Courts Act 1981 and the decision in Bolton Metropolitan District Council v The Secretary of State for the Environment [1995] 1 W.L.R. 1176, there is little said as to the consequences of being an interested party.

[44]In cases, such as the present, where the interested party is not made a respondent to an application, the position of that interested party depends on what orders are made by the court. The court has a wide power to order that an interested party may be permitted or entitled to participate in particular applications, hearings or issues. That participation does not make it automatically a party to the proceedings but the orders given by the court will have consequences. For instance, in this case the relevant order provided for Allwyn to serve a statement of case. The Allwyn Statement of Case referred to documents and the consequence of that would, in my judgment, be that the court would treat Allwyn as a party for purpose of CPR r.31.14 if, as occurred, a party to the proceedings sought to have a copy of any documents which had been referred to in the Allwyn Statement of Case.

[45]Similarly, on the application now made by the Claimants I have to decide whether, taking account of the relevant order, the consequences of that order and the particular circumstances, it is appropriate to treat Allwyn as a party for the purpose of an application for specific disclosure under CPR r.31.12. If that were not appropriate and no other order for disclosure were appropriate, the position would be that the interested party would be treated as a non-party and any application for disclosure would have to be made under CPR r.31.17.

[46]Therefore, in my judgment, the position of an interested party under Appendix H is not that an interested party automatically becomes a party with all the rights and obligations that a party has under the CPR but that the court, on any application against an interested party, has to decide whether it is appropriate to treat the interested party as a party for the purpose of applying a particular provision of the CPR.

[47]In the present case, Allwyn was granted permission to file the Allwyn Statement of Case for trial as well as evidence and can make written and oral submissions and cross-examine witnesses, insofar as they have a separate interest to the Defendant in respect of the issues raised in the Allwyn Statement of Case and any other issues to be determined at trial. That involvement means that where Allwyn have pleaded a case in the Allwyn Statement of Case which includes reliance on documents which are not otherwise disclosed in the case, it would be appropriate to treat Allwyn as a party for the purpose of a focussed order for specific disclosure under CPR r.31.12.

[48]I therefore now turn to consider whether it is appropriate for Allwyn to be ordered to give disclosure under the rules applying to specific disclosure by a party under CPR r.31.12.

[49]Since the Allwyn Application was made the scope of disclosure sought by the Claimants from Allwyn has narrowed.The Claimants’ contested application now relates to the following document requests:(1) Category 5: Documents relating to the delay in the transition of the Licence to Allwyn.

(2) Category 6: The correspondence which Allwyn seeks to rely on the Allwyn Statement of Claim, including any communications it had with the Defendant relating to Allwyn’s Fit & Proper submissions in the Competition, those of its key persons (including Lottery Beneficiaries), and those relating to Scientific Games.

(3) Category 7: Any confirmation from the Defendant to Allwyn that Allwyn’s baseline on participation was calibrated appropriately, in respect of Allwyn’s Revenue Forecast Risk. Document requests to Allwyn

[50]In relation to Categories 1, 2, 3 and 4, which relate to documents relevant to the position of Allwyn and Rothschild, in their evidence in response to the application Allwyn set out eight points and then stated:

“Allwyn will confirm the factual position in relation to each of these points in its witness evidence supported by a statement of truth, and is also content to confirm that it will exhibit to its witness statement any documents relied upon and any known adverse documents.”

[51]The Claimants indicated that they were content with this but specified some people that they understood to be relevant people in relation to the particular issues and needed to be consulted on adverse documents. After discussion at the hearing, there was no remaining issue, it being agreed that Allwyn would provide a witness statement exhibiting any known adverse documents in relation to these Categories, having made enquiries of the relevant people, taking into account the people proposed by the Claimants. To the extent that it is necessary, I direct that such disclosure is to be provided under CPR r.31.12.

[52]I therefore order that Allwyn are to provide a witness statement, on the dated ordered for witness statements in these proceedings, exhibiting any known adverse documents in relation to these Categories having made enquiries of the relevant people, taking into account the people proposed by the Claimants (Stepan Dlouhy; Robert Chvatal; David Kleinhampl; and Alastair Ruxton).

[53]In relation to Categories 8, 9 and 10, the Claimants no longer pursue those categories and the application in respect of those categories is dismissed.

[54]I now consider the remaining Categories 5, 6 and 7. Allwyn Category 5: Documents relating to the delay in the transition of the Licence to Allwyn Claimants’ Submissions

[55]In paragraph 22 of their Re-Amended Particulars of Claim in the Modifications Claim, the Claimants plead that:(a) the Contracts have undergone substantial modifications from the form originally entered into and which underpinned the Competition and

(b) the reasons advanced by the Defendant for those modifications, such as the alleged unforeseeability of IGT initiating and maintaining proceedings after Camelot withdrew its claim and the suggestion that handover negotiations with IGT would be prolonged and difficult, are untenable.

[56]The Claimants submit that Allwyn entered into the unamended Enabling Agreement with full knowledge that IGT had commenced litigation and accordingly, the Defendant was aware that the IGT proceedings could not, and should not, be used to justify subsequent modifications to the Enabling Agreement or Licence. Moreover, the Claimants say that certain significant modifications were proposed by Allwyn after it had already reached an agreement with IGT and the IGT litigation had been discontinued.

[57]Notably, prior to mid-September 2023, Allwyn sought a modification to permit Fully Implemented Commencement by 29 September 2024, which was later revised to require only initial functionality by 28 February 2025. The Claimants submit that this further extension, therefore, could not have been caused by IGT’s conduct or litigation. The Claimants submit that the modifications were required not (or at the very least, not principally) due to the factors relied upon by the Defendant, but rather due to Allwyn’s repeated and persistent failures to meet its obligations under the Enabling Agreement, including breaches thereof.

[58]Regulation 43 of the CCRs sets out certain “gateways” through which a concession contract may be modified without triggering a new procurement procedure and the Defendant relies on Regulation 43(1)(c), which allows modification where it arises due to unforeseeable circumstances. The Claimants contend that this requires an objective assessment by the court of whether the Defendant, acting diligently, could not have foreseen that the IGT litigation would delay the implementation of the Contracts and the IGT litigation was actually the cause of the delay.

[59]In the Allwyn Statement of Case, the Claimants say that Allwyn expressly contests the Claimants’ position regarding the reasons for the modifications. It contends, at paragraph 21, that the modifications were necessitated by delay and disruption caused by the Camelot and IGT proceedings and that, in order to overcome IGT’s non-cooperation and enable the transition, it diverted significant resources and entered into onerous contractual arrangements in IGT’s favour.

[60]The Claimants say that these are matters which they intend to test at trial in order to advance their case as to the true reasons for the modifications. To do so fairly, they submit that Allwyn must disclose documents that record or evidence the reasons for the delays in the transition of the Licence to Allwyn.

[61]In its response to this disclosure category, the Claimants note that Allwyn do not argue that the requested disclosure is irrelevant but, instead, they complain that the request is overly broad and open-ended. The Claimants say that this concern is misplaced and the assertion that the request could potentially implicate “hundreds of custodians” across the Allwyn group and Camelot, would require “several months” and cost £1 million is incorrect. The Claimants say that their own disclosure process involved no more than 22 custodians across all issues and was completed within five months. Whilst the Claimants acknowledge that proportionality must be applied and Allwyn have yet to propose any appropriate custodians, the Claimants say they are content to confine this category to the period from the Contract Award Notice (15 March 2022) to the date of Allwyn’s Statement of Case (15 July 2024). Allwyn’s Submissions

[62]Allwyn refers to the Claimants’ pleaded complaint at [45] of the Re-Amended Particulars of Claim in the Modifications Claim which comprises, in summary, an allegation that the changes made by the Defendant to the terms of the Licence give rise to an unlawful modification for the purposes of the CCRs.

[63]Allwyn contend that the disclosure sought in this category is too wide and open-ended and would appear to require broad searches covering a period of several years. Potentially they say that hundreds of custodians spread across the Allwyn group as well as Camelot would be covered, all of whom have been involved in the transition process since at least July 2022. This would likely result in hundreds of thousands of documents, many of which would be commercially sensitive, or privileged, requiring a review involving costs exceeding £1 million and taking several months, with the redeployment of staff and engagement of third party technical providers.

[64]Further, Allwyn submit that this is plainly a fishing expedition and the court routinely determines unlawful modification complaints without an order for third party disclosure and such an order is not necessary for the fair resolution of such a complaint.

[65]In relation to the Allwyn Statement of Case, Allwyn say that they do not plead any new or different facts that justify an order for disclosure against them. To the contrary, Allwyn submit that at [21] they record their agreement with the pleaded case of the Defendant. The Defendant has already provided very substantial disclosure related to this allegation, being almost 18,151 relevant documents under disclosure category D33 and 20,117 under disclosure category D34.

[66]Having regard to the volume of documentation disclosed by the Defendant relevant to these categories, the opportunity for the Claimants to make further requests of the Defendant and the nature of the Court’s review in relation to this allegation, Allwyn submit that the disclosure sought does not satisfy the requirements for an order under CPR r.31.12 alternatively CPR r.31.17. Decision

[67]It is evident that Allwyn, understandably, wish to have a significant involvement in these proceedings as reflected in the Order of 10 June 2024.

[68]The particular matters pleaded by Allwyn in [21] of the Allwyn Statement of Case are as follows:

“21. In respect of the Modification PoC, Allwyn’s position is, in summary, as follows: (1) The Challenged Modifications arise from (in whole or material part): (i) the legal proceedings pursued by Camelot and IGT challenging the award of the Licence, and/or (ii) IGT’s non-cooperation and delay in respect of transition. (2) Without prejudice to the generality of the foregoing averments: (a) The 2022 Challenged Modifications address certain of the effects of the legal proceedings challenging the award of the Licence. The update to the Good Causes Contribution Forecast: (i) was conducted pursuant to the terms of the EA, and (ii) arose from the delay and disruption caused by the legal proceedings pursued by Camelot and IGT challenging the award of the Licence. (b) The 2023 Challenged Modifications address certain of the effects of the legal proceedings pursued by Camelot and IGT challenging the award of the Licence and IGT’s non-cooperation and delay in respect of transition. IGT’s conduct was not within Allwyn’s control or foreseeable. In order to overcome IGT’s non-cooperation and delay, and enable transition to proceed, Allwyn diverted significant resources and entered into onerous contractual arrangements in IGT’s favour comprising: (i) substantial contractual indemnities, (ii) a transition support agreement, and (iii) an extension of the term of IGT’s existing contractual arrangements, and pursuant to which Allwyn and IGT are progressing transition. At trial, Allwyn will refer to the relevant contractual arrangements, and relevant correspondence with the Defendant, for their full force and effect. (3) In the circumstances, the Challenged Modifications (and each of them) are lawful and the Defendant was not required, pursuant to reg. 43(10) of the CCR, to conduct a new contract award procedure in order to effect the Challenged Modifications.”

[69]As Allwyn submit, the documents which are relevant to these allegations have already been the subject of disclosure orders against the Defendant which will include any documents passing between the Defendant or Allwyn.

[70]However, it is evident that in making the allegations in paragraph 21(1), Allwyn may wish to rely on documents which are not within the disclosure ordered against the Defendant.

(b) , Allwyn pleads:

“In order to overcome IGT’s non-cooperation and delay, and enable transition to proceed, Allwyn diverted significant resources and entered into onerous contractual arrangements in IGT’s favour…”

. Allwyn may, for instance, wish to rely on evidence of its resources even though at the end of paragraph 21(2) it pleads “At trial, Allwyn will refer to the relevant contractual arrangements, and relevant correspondence with the Defendant, for their full force and effect.”

[71]Obviously, to the extent that Allwyn wishes to give evidence of these matters there may be further documents and also adverse documents which the Claimants should see and which would be necessary in order to deal fairly with any contentions that Allwyn wish to make. That will only become apparent when Allwyn decides whether it will provide witness evidence to support its factual allegations. On that basis, it is at that stage that Allwyn should exhibit any known adverse documents in relation to that Category having made enquiries of the relevant people, taking into account the people proposed by the Claimants. I consider that this is a case where such an order is appropriate on the basis that Allwyn is treated as a party for the purpose of CPR r.31.12.

[72]Therefore, in relation to Category 5, I order that, to the extent that Allwyn provide a witness statement to support the factual allegations in paragraphs 21(1) or 21(2)(b) of their Statement of Case, that witness statement is to exhibit any known adverse documents in relation to that Category having made enquiries of the relevant people, taking into account the people proposed by the Claimants (Alastair Ruxton; Justin King; and Harry Willits). Allwyn Category 6: The correspondence which Allwyn seeks to rely on the Allwyn Statement of Case, including any communications it had with the Defendant relating to Allwyn’s Fit & Proper submissions in the Competition, those of its key persons (including Lottery Beneficiaries), and those relating to Scientific Games. Claimants’ Submissions

[73]At paragraph 29.2 of the Particulars of Claim in the First Claim which have been amended multiple times (“Re-Amended Particulars of Claim”), the Claimants allege that the Defendant failed properly to apply the criteria in the ITA and related documents to determine whether all applicants, particularly Allwyn, were “fit and proper persons.” In seeking to rebut this allegation, the Claimants refer to paragraph 14 of Allwyn’s Statement of Case where it asserts that it will rely “on its correspondence with the Defendant”.

[74]The Claimants refer to correspondence between solicitors in which Allwyn’s solicitors referred to the fact that ‘reliance’ on certain documents did not create a disclosure obligation, particularly where those documents have been or are likely to be disclosed by the primary parties. In the evidence on this application, Allwyn has now said that there is no evidence of any material gap in the Defendant’s disclosure that justifies or requires an order against Allwyn.

[75]Having reviewed the Defendant’s disclosure, the Claimants have identified five items of correspondence from Allwyn to the Defendant concerning the fit and proper test. These refer to additional, undisclosed materials which the Claimants state must be within Allwyn’s possession or control. Provided Allwyn discloses these discrete documents to close the gaps, the Claimants do not further pursue this disclosure request.

[76]In relation to Allwyn’s contention that the Claimants should seek to fill these gaps by pursuing them with the Defendant, the Claimants refer to the fact that Allwyn plead the correspondence with the Defendant and there is no reason why they should not give disclosure. However, the Claimants say that there is also a timing point and so, one possibility would be to make a conditional order on the basis that, if the Defendant’s further researches do not locate the missing documents, then Allwyn should search for them and provide them. That, the Claimants submit would deal with the position if the Defendant were unable to locate the documents. Allwyn’s Submissions

[77]Allwyn referred to recent correspondence from solicitors for the Defendant which indicated that the Claimants had not made requests to the Defendant for the missing documents. However, as the Defendant had confirmed in correspondence that it would search to find the documents that are said to be missing, Allwyn submit that the Claimants should not be seeking specific disclosure from interested parties without obtaining the relevant disclosure from the Defendant. Decision

[78]During the hearing the scope of the application for this category narrowed. It is evident that the Claimants should ensure that the primary disclosure obligations have been properly completed before seeking missing documents from interested parties. Given the stage of the proceedings, it would obviously be unsatisfactory for the documents not to be disclosed if, for some reason, the Defendant no longer has them. The Defendant confirmed that they were investigating this aspect of the disclosure.

[79]On that basis, I propose to give the Defendant a period to complete its searches and it would only be if the Defendant cannot locate the documents that, then, Allwyn should disclose them. It is only in those circumstances that an order for specific disclosure by Allwyn would be appropriate, treating it as a party under CPR r.31.12.

[80]Accordingly, in relation to Category 6, in the event that the Defendant does not, by 13 May 2025, produce on disclosure the documents described in documents ID FTD_T1_037134 (dated 11 March 2022); FTD_T1_037703 (dated 12 March 2021); FTD_T1_036432 (dated 2 March 2022); FTD_T1_036660 (dated 4 March 2022) and FTD_T1_007882 (dated 16 April 2021), as set out at pages 852 and 853 of the Application Bundle, Allwyn are to search for and produce any of those documents in their possession by 20 May 2025. Allwyn Category 7: Any confirmation from the Defendant to Allwyn that Allwyn’s baseline on participation was calibrated appropriately, in respect of Allwyn’s Revenue Forecast Risk Claimants’ Submissions

[81]At paragraph 26.1(c) of the Re-Amended Particulars of Claim in the First Claim, the Claimants allege that the Defendant failed to ensure equal treatment of bidders, particularly in applying the “Solution Risk Factor” (“SRF”), which allowed evaluators to adjust scores for proposal risks. The Claimants rely on their own pleadings and earlier claims made by Camelot and IGT (the “paragraph 15A–C documents”).

[82]The Claimants refer to paragraph 10 of the Allwyn Statement of Case where they deny that any alleged issues warranted an SRF adjustment above 0% and reject reliance on the Camelot/IGT claims. Allwyn contend that an evaluator’s comment regarding Allwyn’s revenue forecast misunderstood both the data and methodology in Allwyn’s application, including research from DCMS and [redacted], and the limitations of a report by consultants, LEK.

[83]In the RFI, the Claimants asked Allwyn to explain(a) how the evaluator misunderstood its data,

(b) how the LEK report was misinterpreted, and

(c) what data from the LEK report was or was not made available during the competition. In paragraph 29 of the RFI Response, Allwyn responded to these requests and stated, inter alia, that the Defendant had confirmed that Allwyn’s baseline participation figures were appropriately calibrated.

[84]The Claimants submit that this disclosure category is narrowly focused as they seek the relevant “confirmation” from the Defendant which is referred to in Allwyn’s RFI Response. Whilst the Claimants accept that this confirmation would likely fall under the Defendant’s disclosure categories, including: D8: Final feedback to applicants (e.g., meeting notes) and D16: Evaluation materials and portal communications, the Defendant’s disclosure contains no such confirmation.

[85]The Claimants refer to correspondence with the Defendant’s solicitors requesting and receiving clarification of the searches made and say that this implied that no such confirmation regarding Allwyn’s baseline participation figures exists in the Defendant’s records.

[86]As Allwyn explicitly pleads that it received a confirmation from the Defendant, this is now in issue and the Claimants submit that they are entitled to test it at trial. Since the confirmation is absent from the Defendant’s disclosure and must have been in Allwyn’s possession to plead it, Allwyn should be required to disclose the document and the Claimants submit that this is a proportionate request. Allwyn’s Submissions

[87]Allwyn submit that the Defendant’s Disclosure Categories D14, D15 and D16 required the Defendant to disclose Allwyn’s application in full; all documents relating to the Phase Two evaluation of the application; and all portal communications with Allwyn, including clarification questions and responses following submissions of Phase Two bids. Insofar as the confirmation has not been provided, Allwyn submit that it can be sought from the Defendant by way of application for specific disclosure. Decision

[88]This is a case where Allwyn has stated in the RFI Response at paragraph 29 that, in relation to participation figures, “it is averred that the Defendant had confirmed to Allwyn that its (i.e. Allwyn’s) identified baseline on participation was calibrated appropriately.”

[89]Again, to the extent that this confirmation is contained in or evidenced by documents, then the Defendant would be expected to have and disclose those documents. The Claimants have pursued this request with the Defendant and the Defendant confirmed, at the hearing, that they had disclosed documents from all of the various depositories where communications between it and bidders were made.

[90]On that basis, I am satisfied that the Defendant has been unable to locate the unidentified confirmation relied on by Allwyn and it is necessary for Allwyn to give specific disclosure of it, treating it as a party for the purpose of CPR r.31.12.

[91]Accordingly, in relation to Category 7, Allwyn are, by 20 May 2025, to search for and produce any confirmation by the Defendant to Allwyn that their “identified baseline on participation was calibrated appropriately” as stated in paragraph 29 of the RFI Response. Conclusion on the Allwyn Application

[92]For the reasons set out above I made the following orders:(1) In relation to Categories 1, 2, 3 and 4, the Interested Parties are to provide a witness statement, on the dated ordered for witness statements in these proceedings, exhibiting any known adverse documents in relation to these Categories having made enquiries of the relevant people, taking into account the people proposed by the Claimants (Stepan Dlouhy; Robert Chvatal; David Kleinhampl; and Alastair Ruxton).

(2) In relation to Category 5, to the extent that the Interested Parties provide a witness statement to support the factual allegations in paragraphs 21(1) or 21(2)(b) of their Statement of Case, that witness statement is to exhibit any known adverse documents in relation to that Category having made enquiries of the relevant people, taking into account the people proposed by the Claimants (Alastair Ruxton; Justin King; and Harry Willits).

(3) In relation to Category 6, in the event that the Defendant does not, by 13 May 2025, produce on disclosure the documents described in documents ID FTD_T1_037134 (dated 11 March 2022); FTD_T1_037703 (dated 12 March 2021); FTD_T1_036432 (dated 2 March 2022); FTD_T1_036660 (dated 4 March 2022) and FTD_T1_007882 (dated 16 April 2021), as set out at pages 852 and 853 of the Application Bundle, the Interested Parties are to search for and produce any of those documents in their possession by 20 May 2025.

(4) In relation to Category 7, the Interested Parties are, by 20 May 2025, to search for and produce any confirmation by the Defendant to the Interested Parties that their “identified baseline on participation was calibrated appropriately” as stated in paragraph 29 of the Interested Parties’ Response to the Claimants’ Request for Further Information dated 24 September 2024.

(5) In relation to Categories 8, 9 and 10, the Claimants no longer pursue those Categories and the application in respect of those categories is dismissed.

[93]Those orders are made under CPR r.31.12. However, in each case I would have found that the test in CPR r.31.17 is met because the documents are likely to support the case of the Claimants or adversely affect the case of the Defendant and disclosure is necessary in order to dispose fairly of the claim.

[94]Given the outcome, the costs of this application are reserved for further argument, if not agreed. The Rothschild Application

[95]Like the Allwyn Application, the scope of the Rothschild Application has also narrowed since it was made. The Claimants now only seek documents in Categories 3, 4 and 5. As Rothschild is a non-party the provisions of CPR r.31.17 apply to this application.

[96]I now deal with those remaining categories. Rothschild Request 3:Documents concerning any consideration of a conflict of interest in relation to Rothschild’s engagement with the Defendant (including but not limited to any consideration and steps taken in accordance with clause 41 “conflicts of interest” of the Crown Commercial Service Corporate Finance Services Framework Agreement (Ref: RM3719)) Claimants’ Submissions

[97]This category of documents relates to the Conflicts of Interest issue. At paragraph 30A of the Defendant’s Defence, the Defendant admits that Rothschild did not agree to have its employees sign individual conflicts of interest declarations in relation to their work for the Defendant on the Licence. However, the Defendant claims that Rothschild was bound by contractual obligations (under the Crown Commercial Service Corporate Finance Services Framework Agreement) in respect of conflicts of interest in its contract with the Defendant for its services as Lead Financial Advisor.

[98]The Defendant also claims at paragraph 31(1) of its Defence that it was entitled to rely on Rothschild’s explanation, contained in its correspondence of 10 May 2019, that:

“We confirm that Rothschild & Co will act with due diligence and with reasonable care and skill in carrying out its services for the Gambling Commission in relation to [the Competition] and will have no responsibilities to any other party in relation to [the Competition]. Rothschild & Co maintains a robust process of evaluating conflicts of interest with respect to potential and existing mandates. At the point of engagement, Rothschild & Co will satisfy itself that there are no apparent conflicts of interest as a consequence of accepting the mandate. During the period of engagement, we will review new mandates against our duties and your interests as relates to [the Competition], consistent with our conflicts of interest policy. Should we consider there to be a matter that materially impacts your interests, we will resolve it according to our conflicts of interest policy, including where appropriate, disclosing it to you (subject to regulatory and legal duties of confidentiality).”

[99]The Claimants dispute Rothschild’s contention that this category is irrelevant and therefore fails to meet the CPR r.31.17 necessity test, because Rothschild’s internal documents cannot support the Claimants’ case as to how the Defendant (mis)handled the conflicts of interest issue.

[100]The Claimants submit that the test in CPR r.31.17 is met because, first, documents concerning Rothschild’s consideration of a Conflict of Interest with the Defendant are necessary for the Court to resolve the key factual issue of whether there was in fact such a conflict.

[101]Secondly, whilst the Defendant has provided disclosure on this issue, the Claimants say that there are clear gaps in that disclosure. Whilst the Defendant’s disclosure contains internal discussions within the Defendant, as to whether individual conflict of interest declarations would be required from Rothschild employees, these communications then stop before a resolution appears to have been reached.

[102]The Claimants are aware that a resolution was reached that no individual declarations were required from Rothschild employees, but there is a significant gap in disclosure as to how this point was arrived at. The Claimants submit that it is likely that at least some of the documents addressing this “gap” would be in the sole possession, custody or control of Rothschild. These documents are therefore likely to be probative as to whether there was in fact a conflict of interest and/or the Defendant was entitled to reach its view that a conflict of interest in respect of Rothschild had not been identified.

[103]For these reasons, the Claimants submit that disclosure is likely to support the Claimants’ case and is necessary due to the gap in the Defendant’s disclosure. It proposes that this disclosure category can be appropriately narrowed in terms of custodians, search parameters and date range. Rothschild’s Submissions

[104]Rothschild submits that its own assessment of potential conflicts is not relevant, let alone necessary, for the determination of the pleaded claim. The Claimants’ claim identifies alleged conflicts of interest and challenges the adequacy of the Defendant’s actions in relation to those alleged conflicts. Rothschild says that the Claimants’ complaint is that the Defendant relied upon Rothschild’s declaration and contractual obligations, without the Defendant doing anything additional.

[105]Rothschild refers to paragraphs 27.2 and 27.3 of the Re-Amended Particulars of Claim in the First Claim where the Claimants pleaded:

“27.2 By letter of 8 April 2022, the Defendant’s legal representatives wrote to the Claimants’ (previous) legal representatives and advised, “With respect to Rothschild the Commission relied on confirmation that no conflicts had been identified through their strict conflicts process”

. It is apparent from disclosure that the Defendant took no or insufficient steps to establish what this “strict conflicts process” was. It is further apparent from disclosure that, despite the Conflicts of Interest statement signed by Rothschild as part of its bid to advise the Defendant, it would and should have been obvious to the Defendant from the contents of the bid submission that Rothschild had conflicts of interest in relation to potential bidders. Nonetheless, it does not appear that the Defendant made any further enquiries of Rothschild in order to establish the nature and extent of such conflicts. Furthermore, it is apparent from documents in disclosure that the Defendant was aware that Rothschild had advised one potential bidder in relation to a transaction involving OPAP. 27.3 By relying on confirmation received from Rothschild, and/or relying on Rothschild’s regulated status, and/or by allowing Rothschild employees to avoid providing individual declarations, the Defendant has failed to take adequate steps to prevent or resolve a conflict of interest or apparent conflict of interest. In failing to do so, the Defendant has undermined the integrity of the overall 4NLC process and allowed the Preferred Applicant an unfair advantage”.

[106]Rothschild submits that to determine those allegations against the Defendant does not require any inquiry at all into Rothschild’s internal documents as the Claimants’ claim does not challenge the conduct of Rothschild or depend upon the subjective views of Rothschild. Rather, Rothschild submits that the existence of a conflict of interest is to be determined objectively and it refers to

Case T-403/12

Intrasoft ECLI:EU:T:2015:744 at [75]: “The concept of a conflict of interests is objective in nature and, in order to establish it, it is appropriate to disregard the intentions of those concerned, in particular whether they acted in good faith (see judgment of 20 March 2013 in Nexans France v Entreprise commune Fusion for Energy, T-415/10, ECR, EU:T:2013:141, paragraph 115 and the case-law cited)”.

[107]Whilst the Claimants contend that documents concerning Rothschild’s consideration of a conflict of interest are necessary for the Court to resolve “the key factual issue of whether there was in fact such a conflict”, Rothschild submit that the subjective views of individuals at Rothschild cannot assist on that factual issue, which is to be determined objectively.

[108]Instead, Rothschild submits that the purpose of this request appears to be for the Claimants to carry out their own audit of Rothschild’s compliance with its contractual and regulatory obligations which goes beyond the pleaded case and concerns Rothschild’s obligations and not the Defendant’s obligations. Rothschild submits that a collateral investigation into Rothschild’s obligations forms no part of these proceedings as Rothschild is not involved in these proceedings.

[109]The Claimants seek to justify the request on the basis that there are gaps in the disclosure provided by the Defendant. For example, the Claimants say that whilst the disclosure contains internal discussions within the Defendant as to whether or not individual conflict of interest declarations would be required from Rothschild employees, these communications then stop before a resolution appears to have been reached and there is a gap in disclosure as to how a resolution was reached so that no individual declarations were required from Rothschild employees.

[110]Rothschild submits that this does not justify an application under CPR r.31.17. The pleaded allegation is that the Defendant acted unlawfully by “allowing Rothschild employees to avoid providing individual declarations” which requires consideration of the Defendant’s decision and the Defendant has presumably disclosed all communications with Rothschild which are relevant to its decision on this issue. Documents which are not part of the Defendant’s disclosure, and of which it had no knowledge, cannot be of any relevance to that claim. In addition, Rothschild submits that, insofar as there are gaps, there is no basis to consider that documents which fill those alleged gaps would somehow exist in Rothschild’s records when any deliberation on the matter was that of the Defendant and not Rothschild. This is therefore a requirement for Rothschild to search for documents which are not likely to exist.

[111]Rothschild submits that this request fails to meet the CPR 31.17(3) criteria that the documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings and thatdisclosure is necessary in order to dispose fairly of the claim or to save costs.

[112]In addition, the category of disclosure is too broad using the phrase “concerning” which would include a variety of administrative, internal documents that are not even of peripheral interest and are clearly irrelevant. Finally, as a matter of discretion, even if both the criteria under CPR 31.17(3) were met, Rothschild submits that such a request is intrusive and appears to be for collateral purposes, seeking to obtain confidential documents, in circumstances where Rothschild is not a party to proceedings. Decision

[113]I accept Rothschild’s submissions. This is a case where it is the conduct of the Defendant which is pleaded as giving rise to the claim. Whether or not Rothschild gave any internal consideration in relation to a conflict of interest in relation to its engagement with the Defendant or took steps in accordance with the Framework Agreement is not material or relevant to the actions of the Defendant. The pleaded case is limited to consideration of what the Defendant did in relation to conflicts of interest.

[114]The documents would only be relevant to a collateral investigation of what Rothschild did or did not do, which is not an issue in the case.

[115]In relation to the need for documents to fill a “gap” in the Defendant’s disclosure, there is no proper case put forward for there being documents which the Claimants have not obtained from the Defendant after raising the alleged “gap” with the Defendant. The purpose of non-party disclosure is not to obtain documents from a non-party which could and should be obtained from the parties to the proceedings.

[116]On that basis, I dismiss the application based on this request as it does not satisfy the CPR 31.17(3) criteria. The documents sought would not support the Claimants’ pleaded case or adversely affect the case of the Defendant and disclosure is neither necessary in order to dispose fairly of the Conflicts of Interest claim nor to save costs. Rothschild Request 4:Documents containing reference to any consideration of and/or any analysis of any bid submissions concerning the proposed Operator Share of Surplus or Contributionto Good Causes of the Competition applicants, including Allwyn, at Phase One and Phase Two of the Competition.

[117]In paragraph 28.1 of the Re-Amended Particulars of Claim on the First Claim, the Claimants contend that the Defendant did not take adequate steps to investigate the explanation for the material movements in Allwyn’s proposed “Operator Share of Surplus” (“OSS”) and the Contribution to Good Causes between Phase 1 and Phase 2 of the competition, the combination of which the Claimants aver had a material impact on the result of the Competition. The Claimants’ position is that it does not appear from the Defendant’s disclosure that the Defendant carried out any investigation, despite Allwyn’s OSS having been changed to a figure very similar to those submitted by the First Claimant and Camelot at both Phases One and Two.

[118]In light of the alleged conflict of interest in the Defendant employing Rothschild during the Competition, the fact that the Defendant has confirmed that Rothschild “had access to all sections of every Applicant’s application”, which would include Camelot and the First Claimant’s OSS figures, at the point in time when Allwyn changed its OSS figure and the fact that the Claimants are aware of examples of “off the record” conversations which took place between Rothschild and Allwyn, the Claimants say that they consider there is a real possibility that information was passed from Rothschild to Allwyn in respect of the OSS/CGC Movement Issue.

[119]The Claimants submit that this is important for two reasons. First, it will inform the extent to which the Defendant was under an obligation to investigate the conflict issue, as the Claimants contend. If, for example, significant and/or considerable information were passing between Rothschild and Allwyn on this point, the court may wish to apply greater scrutiny to the Defendant’s case that it took all appropriate and necessary steps to prevent a conflict of interest in its use of Rothschild. Secondly, as to the Conflicts of Interest issue, whether such information was in fact passed, is likely to have a direct bearing on the Claimants’ case on causation at trial as to whether it can be said, but for the Defendant’s failing, this would have affected the outcome of the Competition.

[120]For these reasons, the Claimants state that Rothschild are likely to hold documents in this disclosure category, which are obviously not capable of being provided by the Defendant, and disclosure is necessary to fairly dispose of a key issue in the proceedings. They say that the Request is very limited and focused and not likely to involve large numbers of documents and parameters, date ranges and limited custodians could be agreed. Rothschild’s Submissions

[121]Rothschild refers to the Claimants’ pleaded case relating to the proposed Operator Share of Surplus or Contribution to Good Causes issue which is at paragraphs 26.1(b) and 28.1 of Re-Amended Particulars of Claim in the First Claim. There the Claimants allege that the Defendant failed to carry out an investigation of a change in Allwyn’s bid on those matters and that the Defendant coached Allwyn.

[122]The Claimants plead as follows:

“[26.1](b) The Defendant did not take adequate steps to investigate the explanation for movements in the Preferred Applicant’s proposed “Operator Share of Surplus” / “Licensee’s Proportion of Surplus” and the Contribution to Good Causes between Phase 1 and Phase 2 of the competition, the combination of which it is averred had a material impact on the result of the 4NLC competition. The Preferred Applicant’s proposed “Operator Share of Surplus” was reduced significantly between Phase 1 and Phase 2 to a level very similar to that proposed by the First Claimant and by the Reserve Applicant. The Preferred Applicant’s proposed “Contribution to Good Causes” also increased materially at the same stage, despite the fact that there was nothing in the Preferred Applicant’s Phase One feedback which would have caused an RWIND tenderer to consider that the proposed revenue was too low. Based on disclosure, it does not appear that the Defendant conducted any investigation into this issue and in particular the similarity between the Preferred Applicant’s eventual “Operator Share of Surplus” percentage and those contained in other applicants’ Phase One and Two bids. Further or in the alternative, in correspondence on 14 November 2024, the Interested Parties’ solicitors stated in relation to the question of confidentiality concerning the Preferred Applicant’s Phase 1 “Operator Share of Surplus” and “Contribution to Good Causes” as follows: “These figures provide an insight into how Allwyn would have bid in Phase One in the absence of a final ITA and clarifications from the Gambling Commission and accordingly reveal Allwyn’s strategy in the absence of guidance from the Gambling Commission”

. The “Operator Share of Surplus” and “Contribution to Good Causes” were not elements of the bid in relation to which the Defendant was permitted to provide feedback, clarifications or guidance to applicants. The Claimants infer from the Interested Parties’ solicitors’ comments that the Preferred Applicant received clarifications or guidance from the Defendant, which were not provided to the Claimants and/or to other applicants, which caused it to amend its “Operator Share of Surplus” and “Contribution to Good Causes” between Phases 1 and 2 of the competition. Such clarifications and guidance would have provided the Preferred Applicant with an unfair advantage over other applicants. (Iaa) The Claimants have become aware through disclosure that the Phase One Feedback provided by the Defendant to the Preferred Applicant included guidance that the Preferred Applicant’s Operator Share of Surplus / Licensee Proportion of Surplus was too high, stating:

“The Applicant has proposed a Licensee Proportion of Surplus which appears to be high when considered in the context of its Business Plan”

. This was not permitted by the ITA, which provided only for feedback relating to pass/fail criteria and the Business Plan Areas. The provision of this feedback in relation to a pricing aspect of the application, which constituted 15% of the overall score, effectively amounted to coaching”. “28.1 The Defendant did not take adequate steps to investigate the explanation for movements in the Preferred Applicant’s proposed “Operator Share of Surplus” and the Contribution to Good Causes between Phase 1 and Phase 2 of the competition, the combination of which it is averred had a material impact on the result of the 4NLC competition. As noted at paragraph 26.1(b) above, it does not appear from disclosure that the Defendant carried out any investigation, despite the Defendant’s “Operator Share of Surplus” having been changed to a figure very similar to those submitted by the First Claimant and the Reserve Applicant at both Phases One and Two”.

[123]Rothschild submits that this is an allegation made against the Defendant in relation to what the Defendant did or did not do. Rothschild says that the Defendant has presumably provided disclosure of any documents relevant to its consideration of the change in Allwyn’s tender and the Defendant has presumably also disclosed its communications with Allwyn on this issue.

[124]Rothschild submits that this very broadly worded request of “documents containing reference to any consideration of any of the bids concerning the proposed Operator Share of Surplus or Contribution to Good Causes” could not assist in determining the pleaded claim when no part of this pleaded case involves Rothschild. As is clear from paragraph 31C(3) of the Defendant’s Defence, Rothschild was not the decision-maker in the Competition. Rothschild submits that the Claimants have not set out any basis to establish that Rothschild would possess relevant documents, which are not already part of the Defendant’s disclosure or that they would be likely to support the Claimants’ claim.

[125]Rothschild submits that whether the Defendant took adequate steps to investigate the explanation for movements in Allwyn’s Operator Share of Surplus and the Contribution to Good Causes in its bid, is a matter for the Defendant. As the Claimants note, when providing feedback in Phase 1, the Defendant informed Allwyn that its Operator Share of Surplus was high. Even if Rothschild had generated internal documents which it did not disclose to the Defendant, they could not be relevant to the pleaded claim that the Defendant failed to conduct an investigation or that the Defendant provided coaching to Allwyn.

[126]Rothschild refers to the justification given for this request in the Claimants’ evidence, being that the Defendant has confirmed that Rothschild was in possession of the information in question and the Claimants are aware of examples where “off the record” conversations took place between Rothschild and Allwyn and, on that basis, there is nothing inappropriate about seeking to identify any documents where the relevant information might have been communicated between the Respondent and Allwyn”.

[127]Rothschild submits that this provides no justification for this request. That rationale relates only to speculation about communications between Rothschild and Allwyn, which is not what this request asks for. Request 4 is nothing to do with communications between Rothschild and Allwyn. It seeks all internal Rothschild documents containing references to any bidder’s submissions on Operator Share of Surplus and the Contribution to Good Causes.

[128]Rothschild submits that the justification given by the Claimants could be relevant only to a different allegation, namely that Rothschild improperly provided information to Allwyn on these issues. That is a serious allegation which has no basis and is not an allegation pleaded in these proceedings. Rather, it goes far beyond the currently pleaded case that there was an obvious conflict of interest arising from the pleaded facts.

[129]Further, the Claimants’ reliance on “off the record” conversations is overstated and seeks to create suspicion which Rothschild submits is groundless. The bidders, including the Claimants, had telephone communications with Rothschild during the tender process. The Claimants made no complaint that this was an improper form of communication and have not pleaded that there was anything unlawful or improper in that mode of communication. The pleaded example of an “off the record” conversation appears to relate to an occasion when Rothschild contacted bidders by telephone on the instructions of the Defendant.

[130]Rothschild submits that this request is an obvious fishing expedition and is not an appropriate use of CPR r.31.17. In any event, if any such communications existed, they would be captured by Allwyn’s agreement to disclose known adverse documents in respect of Allwyn’s Requests 1 to 4. Decision

[131]In this request, the Claimants have made an application for documents “containing reference to any consideration of and/or any analysis of any bid submissions concerning the proposed Operator Share of Surplus or Contribution to Good Causes of the Competition applicants, including Allwyn, at Phase One and Phase Two of the Competition.”

[132]This request is made in relation to the pleaded case in paragraphs 26.1 and 28.1 of the Re-Amended Particulars of Claim, quoted above. Those are allegations about what the Defendant did or did not do in relation to the proposed Operator Share of Surplus or Contribution to Good Causes of the Competition applicants. There is no basis for this request when the relevant and material documents are those which the Claimants will have obtained from the Defendant by way of disclosure.

[133]The Claimants’ position is that it does not appear from the Defendant’s disclosure that the Defendant carried out any investigation, despite Allwyn’s OSS having been changed to a figure very similar to those submitted by the First Claimant and Camelot at both Phases One and Two. There is no basis for an application for disclosure from Rothschild as a non-party for the category of documents sought in this request in relation to matters pleaded by the Claimants.

[134]Instead, the way in which the application has been put forward by the Claimants appears to be as a vehicle for an issue which has not been pleaded. That issue is a serious allegation that Rothschild provided Allwyn with information which is the explanation for movements in the Preferred Applicant’s proposed Operator Share of Surplus and the Contribution to Good Causes between Phase 1 and Phase 2 of the competition. No underlying justification for such an allegation has been put forward and it does not form even a subset of the documents requested in this request. It is simply a fishing expedition to see whether something might turn up to support a case that Rothschild provided such information to Allwyn.

[135]The request therefore entirely fails to meet the CPR 31.17(3) criterion that the documents are likely to support the Claimants’ pleaded case or adversely affect the Defendant’s pleaded case. Nor does it meet the criterion that disclosure is necessary in order to dispose fairly of the pleaded claim. The application for this category of disclosure is therefore dismissed. Rothschild Request 5:Documents relating to the decision of an affiliate of the Respondent to invest in bonds issued by Sazka Group, including any information barriers put in place between those in the affiliate of the Respondent managing the “R-Co Target 2024 High Yield” fund and those within the Respondent assisting with the 4NLC process. Claimants’ Submissions

[136]At the outset, the Claimants note Rothschild’s confirmation that it is unlikely to hold documents of its French affiliate in connection with the Sazka bonds and they say that they do not seek documents that are not in the possession, custody or control of Rothschild. On that basis, the Claimants state that they are willing to narrow the scope of this request to documents concerning information barriers between Rothschild entities.

[137]The Claimants submit that the issue as to the claimed existence of such barriers has been advanced by the Defendant in paragraph 31C(2)(c) of its Defence to the First Claim. There, the Defendant positively avers that Rothschild did not have any involvement in investment decisions taken by its French affiliate (RCAM), that individuals employed by Rothschild who provided services to the Defendant did not have any knowledge of investment decisions taken by RCAM, and that “information barriers and controls” were in place between RCAM and Rothschild. The Claimants submit that, therefore, whether such information barriers were in place is directly in issue and is a factual matter which will need to be resolved at trial.

[138]Documents relating to whether and, if so, what information barriers were in place is, the Claimants submit, a narrow and easy to identify category, directly relevant to the Conflicts of Interest issue, as outlined above and will be in the possession of Rothschild. They say that the documents are likely to support the Claimants’ case that there was an actual conflict of interest in the Defendant employing Rothschild as its Lead Financial and Commercial Adviser in the Competition and they are necessary because they cannot be obtained by other means and will assist in the resolution of the conflicts of interest dispute. Rothschild’s Submissions

[139]Rothschild submits that the original request was entirely misconceived as had been clearly pointed out to the Claimants in correspondence, in paragraph 31A of the Defence and in Rothschild’s evidence on this application.

[140]Rothschild’s primary submission is that the original request, being the only one before the court, is not being pursued and should be dismissed. In respect of that original request, the short point was that the investment was made by an open-ended investment fund (SICAV) registered in France and regulated by the AMF and which was established for third party investors and managed by a different and entirely separate Rothschild & Co entity. The investment and decision to invest were not made by Rothschild. The Claimants were therefore asking Rothschild to search for documents that it would not have. Further, such documents do not meet the threshold for CPR r.31.17(3)(a) in that they do not go the pleaded issues which only concern the Defendant’s actions in relation to a potential conflict of interest that Rothschild might have had, not one that an uninvolved, independent entity based in France may have had.

[141]In relation to the new request concerning documents relating to the relevant information barrier, Rothschild states that this was set out in the emails between Rothschild and the Defendant, which Rothschild presumes have been disclosed as part of the Defendant’s disclosure obligations. Furthermore, it says that the regulatory obligations applicable to Rothschild in relation to information barriers are publicly available.

[142]Insofar as the Claimants seek further information by searches for any documents “concerning” information barriers, Rothschild submits that the documents sought are neither relevant nor necessary and would obviously extend to a wide variety of documents which are not even of the most peripheral relevance. If it is the Claimants’ wish to conduct an audit of Rothschild’s information barriers, Rothschild submits that this would initiate a collateral investigation which forms no part of the pleaded issues in these proceedings. Decision

[143]I accept Rothschild’s submissions. The Claimants no longer seek an order in terms of the application for disclosure in this request which sought “Documents relating to the decision of an affiliate of the Respondent to invest in bonds issued by Sazka Group”.

[144]In paragraph 27.3D of the Re-Amended Particulars of Claim, the Claimants plead as follows in relation to this allegation:

“The Defendant failed to take adequate steps to prevent or resolve a conflict of interest or apparent conflict of interest in respect of Rothschild having a direct financial interest in one of the bidders in the Procurement.”

[145]Again, as stated in relation to Category 3, the relevant pleaded allegations relate to an assessment of what the Defendant did or did not do in relation to conflicts of interest not what Rothschild did or did not do.

[146]The request has been limited to the second part of the original request:

“any information barriers put in place between those in the affiliate of the Respondent managing the “R-Co Target 2024 High Yield” fund and those within the Respondent assisting with the 4NLC process.”

Again, though, this is not related to the pleaded case against the Defendant.

[147]In any event, the documents relevant to the pleaded allegation are those which the Defendant will have and will, as appropriate, have disclosed in response to any request from the Claimants.

[148]For those reasons, the documents now requested do not meet the CPR 31.17(3) criteria. Documents relating to Rothschild’s information barriers do not support the case of the Claimants or adversely affect the case of the Defendant and disclosure of such documents is not necessary in order to dispose fairly of the Claimants’ claim.

[149]On that basis, the Claimants’ application in relation to this category is dismissed. Conclusion

[150]For the reasons set out above, I dismissed the Claimants’ application against Rothschild.

[151]On that basis, the Claimants are to pay Rothschild’s costs of this Application to be assessed, if not agreed.

order

“8. The Allwyn Parties and each of them shall have permission to participate as Interested Parties in the Stage 1 Trial including permission to file a statement of case (“the Allwyn Statement of Case”), evidence, make written and oral submissions and cross-examine witnesses, only insofar as the Allwyn Parties have a separate interest to the Defendant, in respect of: a. the issues raised in the Allwyn Statement of Case; and b. any other issues to be determined at the Stage 1 trial. 9. The Allwyn Parties shall be permitted to make submissions to the Court in relation to any of the issues in paragraph 8 above.”

Cited in 1 later judgment

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