The New Lottery Company Limited & Anor v The Gambling Commission

An interested party does not automatically acquire all the rights and obligations of a party under the Civil Procedure Rules. The court must determine, for the particular application, whether the interested party should be treated as a party, having regard to the orders made and the scope and consequences of its participation.

An interested party permitted to plead a separate case and rely on documents may properly be treated as a party for specific disclosure. Non-party disclosure remains subject to the requirements that the documents are likely to support the applicant’s case or adversely affect another party’s case, and that disclosure is necessary for fair disposal or saving costs. It cannot be used for a collateral investigation into the conduct of a non-party.

The claimants challenged the Gambling Commission’s conduct of the Fourth National Lottery Competition and subsequent modifications to the National Lottery Licence. Allwyn, the successful bidder, was permitted to participate as an interested party, including by filing a statement of case, adducing evidence, making submissions and cross-examining witnesses.

The claimants applied for disclosure from Allwyn under CPR rules 31.6 and 31.12, alternatively under rule 31.17. They also sought non-party disclosure from Rothschild, the Commission’s financial and commercial adviser, concerning alleged conflicts of interest and aspects of the evaluation process. The central issues were whether Allwyn could be treated as a party for disclosure purposes and whether the requested documents satisfied the applicable disclosure tests.

1. An interested party in a procurement claim does not automatically become a party for all purposes under the CPR. The court must decide, by reference to the relevant order, its consequences and the particular application, whether it is appropriate to treat the interested party as a party for the provision in question. This was consistent with the position described in Appendix H to the TCC Guide and the approach referred to in Bolton Metropolitan District Council v The Secretary of State for the Environment [1995] 1 WLR 1176.

2. Allwyn had been given permission to file a statement of case and evidence, make written and oral submissions, and cross-examine witnesses on matters in which it had a separate interest. Since its statement of case relied on documents not otherwise disclosed, it was appropriate to treat Allwyn as a party for the purposes of CPR rule 31.12. The Allwyn application therefore succeeded in part.

3. Specific disclosure from Allwyn was ordered in relation to known adverse documents connected with pleaded factual allegations, subject in some categories to Allwyn providing supporting witness evidence. Where the primary party was expected to hold the documents, the primary disclosure process had to be completed first. Allwyn was required to search only if the Gambling Commission failed to locate specified documents.

4. The court would have made the same orders under CPR rule 31.17 because the documents were likely to support the claimants’ case or adversely affect the Commission’s case and disclosure was necessary for fair disposal of the claims. Categories no longer pursued were dismissed.

5. The Rothschild application was dismissed. The pleaded claims concerned what the Commission did or failed to do in relation to conflicts of interest and the evaluation process. Requests directed to Rothschild’s internal consideration, compliance, information barriers or analysis would instead constitute a collateral investigation into Rothschild’s conduct. They were not shown to support the pleaded case or adversely affect the Commission’s case, and were neither necessary for fair disposal nor required to save costs.

6. The claimants were ordered to pay Rothschild’s costs, to be assessed if not agreed. Costs of the Allwyn application were reserved.