Camelot UK Lotteries Limited & Anor v The Gambling Commission & Ors

Permission to appeal should be granted where the grounds have a real prospect of success or there is some other compelling reason for the appeal to be heard. The threshold is relatively low. A need for appellate guidance on maintaining or lifting a procurement suspension may itself provide a compelling reason, particularly where the procurement is of major public importance. Permission may be conditional on applicants giving adequate cross-undertakings in damages. The adequacy of those undertakings, including coverage of losses to third parties or an interested party, may be left for determination at the substantive appeal.

Camelot UK Lotteries Limited, Camelot Global Lottery Solutions Limited and IGT sought permission to appeal in proceedings concerning the suspension preventing the Gambling Commission from entering into the fourth National Lottery licence with Allwyn.

The Court of Appeal considered whether the proposed appeals met the permission threshold and whether the suspension should continue in the absence of written cross-undertakings as to damages. The judgment arose from the High Court proceedings identified in the cover sheet, but no citation for the judgment appealed was supplied.

1. Permission to appeal. The applications met the threshold in CPR 52(6)(i)(a), namely that the grounds had a real prospect of success. That is a relatively low threshold. Although the court was less persuaded by IGT’s submissions, it granted permission to IGT as well because some challenges overlapped and it was inappropriate at that stage to grant permission to one group of claimants while denying it to another.
2. There was also a compelling reason under CPR 52(6)(i)(b). Appellate guidance was scarce on the approach to lifting or maintaining a suspension associated with a challenged procurement. Such applications involve competing interests, including doing justice and the need for speed. The importance of the Fourth Licence and the public funds generated by the National Lottery justified a full and urgent hearing. The appeal was flagged and provisionally listed for September 2022.
3. Cross-undertakings. The applications to continue the suspension were fundamentally flawed because the applicants had failed to provide the usual written cross-undertakings as to damages. The court accepted the proposed wording, subject to undertakings being given by Camelot, Camelot Global and the IGT companies by 4 pm the following day. The grant of permission was conditional on that provision.
4. The court did not require an undertaking covering potential losses to good causes or a parent company guarantee for Allwyn’s losses at that stage. It expressed no final view on those legal or evidential issues. If the additional protections were not provided, the Commission and Allwyn could argue at the appeal that the undertakings were inadequate and that the suspension should not be maintained.
5. If the undertakings were given by the deadline, the suspension would continue until the conclusion of the appeal. Otherwise, it would not be extended.

• Court of Appeal (Civil Division): [2022] EWCA Civ 1020. Permission to appeal was granted to Camelot and IGT. The suspension was continued to the conclusion of the appeal, conditional on the applicants providing the required cross-undertakings by the specified deadline.
• High Court of Justice, Business and Property Courts of England and Wales, Commercial Court: the decision under appeal. No citation was supplied in the judgment text.