William Hill Organisation Ltd & Anor, R (on the application of) v The Horserace Betting Levy Board & Ors

For a statutory betting levy, the distinction is between the bookmaker, who receives or negotiates bets, and the customer, who makes them. That distinction continues where the customer bets professionally or uses a betting exchange. Matching a bet, or accepting opposing odds, does not mean that the customer receives a bet. Under the Betting, Gaming and Lotteries Act 1963, the exchange operator may be a bookmaker, but its customers are not. Legislative history and later recognition of betting exchanges reinforce that construction.

William Hill challenged the Horserace Betting Levy Board’s decision that business customers of betting exchanges were not liable to pay the levy. The Administrative Court dismissed the judicial review application: [2012] EWHC 2039 (Admin). The appeal concerned the construction of section 55 of the Betting, Gaming and Lotteries Act 1963, in particular whether a customer betting on an exchange in the course of business receives or negotiates bets. William Hill also challenged the order requiring it to pay 25 per cent of Betfair’s costs.

Lord Justice Moses gave the judgment of the court. Lord Justices Davis and Maurice Kay agreed. The appeal was dismissed.

1. Statutory distinction. Section 55 of the Betting, Gaming and Lotteries Act 1963 distinguishes the bookmaker, who carries on the business of receiving or negotiating bets, from the customer, who makes bets. A customer does not become a bookmaker because betting is professional, commercial, extensive or conducted as part of a business.
2. Betting exchanges. The matching of opposing requests does not make each customer a receiver of a bet. Acceptance of an opposing bet is not the same as receipt of a bet. Treating both counterparties as receivers would destroy the statutory distinction and produce arbitrary results, particularly where bets are matched with several others or where the exchange operator is the contractual counterparty. The customer makes the bet; the exchange operator receives or negotiates it.
3. Statutory context. For a new activity to fall within old statutory language, the court must consider whether it falls within the statutory genus and whether inclusion is consistent with the statutory purpose. The legislative history and the linked levy and regulatory schemes consistently preserve the distinction between bookmakers and customers. The Betting and Gaming Duties Act 1981, as amended to recognise betting exchanges, reinforces that conclusion. The licensing provisions of the Gambling Act 2005 use different concepts and do not assist in construing section 55.
4. Costs. The principle in Bolton MBC v Secretary of State for the Environment (Practice Note) [1995] 1 WLR 1176 did not prevent an order for Betfair’s costs. Betfair had a distinct commercial interest and its participation was helpful. The order requiring William Hill to pay 25 per cent of Betfair’s costs therefore stood. No costs were ordered in favour of the Board by agreement.

1. Court of Appeal (Civil Division). The appeal against the Administrative Court’s decision was dismissed. The court upheld the conclusion that business customers of betting exchanges were not bookmakers under section 55 of the Betting, Gaming and Lotteries Act 1963.
2. Administrative Court. Stanley Burnton LJ dismissed the application to quash the Board’s decision: [2012] EWHC 2039 (Admin).