The New Lottery Company Limited & Anor v The Gambling Commission

In complex procurement litigation, a party’s inadvertent disclosure of privileged documents must not be permitted to dictate the case-management timetable where the problem results from that party’s disclosure process. The court may require an accelerated review and identification exercise, tailored to the available time and the need to protect the opposing party’s ability to plead its case. Where a party is substantially successful in obtaining directions addressing disclosure failures attributable to the opponent, the court may order costs against the opponent and summarily assess them, while avoiding an indemnity-basis order unless justified.

The claimants brought procurement proceedings against the Gambling Commission, with three interested parties participating. The hearing was directed to address directions for the claimants’ application concerning the use of inadvertently disclosed privileged documents, further limitation protections concerning deleted and privileged documents, and related case-management matters.

The defendant had identified more than 4,000 documents said to have been inadvertently disclosed and was reviewing a further wider pool of approximately 19,000 documents. The parties disagreed about the timetable for that review, amendments to the Particulars of Claim, evidence and the application hearing. The court also considered costs of the directions hearing.

1. Directions and disclosure. The claimants’ application concerning the use of privileged documents was directed to be heard on 7 March 2025. The defendant was required to identify further claims of inadvertent disclosure in the wider pool by 14 February 2025, with related redacted or identified documents to be provided by 10 February 2025.
2. The defendant’s privilege-review difficulties were attributable to its own disclosure process. The court considered that the further review was a re-review against a background of knowledge of what had gone wrong. It was therefore incumbent on the defendant to tailor the exercise to the time available. The disclosure problem was not allowed to drive the litigation timetable.
3. The court rejected an open-ended assumption that further slippage could be accommodated after the defendant’s proposed later review date. There was insufficient material to assess the likely scope or impact of that exercise. The claimants’ supplemental evidence was directed by 24 February 2025, amendments unaffected by inadvertent-disclosure issues by 21 February 2025, and the further amendment date of 11 April 2025 remained.
4. Costs. The claimants were substantially successful. The issues concerning identification of privileged and inadvertently disclosed documents arose from apparent errors in the defendant’s disclosure and were not caused by the claimants’ application. The defendant was ordered to pay the claimants’ costs on the standard basis.
5. The claimants’ costs were summarily assessed at £65,000, comprising £45,000 for counsel and £20,000 for solicitors. The defendant was also ordered to pay the interested parties’ costs, summarily assessed at £20,000 exclusive of VAT.

This was a first-instance case-management and costs decision. The hearing had been directed by Waksman J within the continuing procurement proceedings.