Dispute Resolution analysis: In Camelot, the court considered that it could not determine an application for an expedited trial of two combined claims before the application by the Gambling Commission to lift the automatic suspension had been determined.
The factors relevant to determining an application for expedition were linked to whether or not the court considered it appropriate for the contract making suspension (imposed under the Concession Contracts Regulations 2016) to remain in place. There was no case for expedition of a damages only claim, and in any event there was little the parties could achieve by way of case management before the automatic suspension hearing, particularly given that confidentiality ring arrangements had to be put in place. The court also did not consider it possible to accommodate the trial timetable in the time frame sought and it would not be a good administration of justice for there to be a rushed trial.
What are the practical implications of this case?
This judgment is an important development in the recent line of procurement challenges where applications to lift the automatic suspension on contract making have been heard at the same time as applications for an expedited trial, such as Draeger Safety UK Ltd v The London Fire Commissioner [2021] EWHC 2221 (TCC) and Kellogg Brown & Root Ltd v Mayor's Office for Policing and Crime and another [2021] EWHC 3321 (TCC).
In Draeger and Kellogg, the court considered applications for an expedited trial at the same time as applications to lift the automatic suspension. In Draeger, the court considered an application to lift the automatic suspension pursuant to the well-established American Cyanamid factors, being:
- is there a serious issue to be tried?
- are damages an adequate remedy for the claimant?
- are damages adequate for the defendant?
- does the balance of convenience favour maintaining the suspension or lifting it?
The factors are considered in turn. In Draeger, when considering the final factor, ie, the balance of convenience, the court considered that, because an expedited trial could be accommodated in the court diary, the automatic suspension should remain in place. Conversely, in Kellogg, the court lifted the automatic suspension, and did not consider that (as part of the balance) an expedited trial weighed in favour of maintaining the suspension.
The decision in Camelot shows that the court is unlikely to be willing to consider an application for expedition before a decision on whether to lift the automatic suspension has been made. Unless there are special factors it seems unlikely that claimants will be able to 'jump the gun' in an attempt to gain an advantage in the competing considerations the court will consider in an application to lift the automatic suspension. The proper procedure is to consider an application for expedition at the same time as part of the balance of convenience, i.e. the last stage of the test applied in an automatic suspension application.
What was the background?
The Gambling Commission (the body responsible for awarding the licence to run the National Lottery), conducted a procurement for a new licence. On 15 March 2022 the bidders were informed that the successful bidder was a company called Allwyn Entertainment Ltd (Allwyn) with the reserve bidder being Camelot UK Lotteries Ltd (Camelot). Camelot has been the incumbent provider of the National Lottery since its inception.
Two challenges to the decision to award the new licence to Allwyn followed. Firstly, was a procurement challenge made by Camelot against the Gambling Commission, initially in two forms—(i) a challenge pursuant to the Concessions Contracts Regulations 2016 (CCR 2016), SI 2016/273 and (ii) a judicial review claim. The Gambling Commission subsequently conceded that CCR 2016 applied, and the judicial review claim was stayed by the court, with liberty to apply.
The consequence of CCR 2016 claim applying was that, as a result of the claim having been started, the Gambling Commission was prohibited from entering into contract with Allwyn (the Contract Making Suspension). The Contract Making Suspension is to remain in place until either the proceedings have been determined or the suspension is lifted by the court.
The second claim against the Gambling Commission was commenced by International Game Technology plc (IGT), a subcontractor supplying software to Camelot. The claim concerned largely the same issues, and it was ordered that the claims be jointly case managed.
The Gambling Commission applied for an order that the Contract Making Suspension be lifted. Camelot and IGT separately applied for an order for an expedited trial of their respective claims. The hearing of the applications for an expedited trial were listed to be heard on a date approximately three weeks before the hearing of the application to lift the Contract Making Suspension.
What did the court decide?
Mr Justice Waksman considered it would not be appropriate for an order regarding an expedited trial to be made unless/until the Gambling Commission's application to lift the Contract Making Suspension had been determined. That was a matter the court would determine in approximately three weeks' time and any decision regarding expedition should be made at the same time as a decision on the Contract Making Suspension.
The court considered the factors relevant to an application to expedite, as set out in WL Gore & Associates GmbH v Geox SPA [2008] EWCA Civ 622 (a decision of the Court of Appeal) where Lord Neuberger said that the four factors are whether:
- the applicants have shown good reason for expedition
- expedition would interfere with the good administration of justice
- expedition would cause prejudice to the other party, and
- there are any other special factors
In assessing these factors, the Waksman J considered the following facts:
- that a decision on lifting the Contract Making Suspension had not yet been made, but would be made soon (in three weeks' time)
- the proposed timetable for the expedited trial sought was very tight (approximately two months away)
- that the Gambling Commission's defences to both claims had not yet been filed/served but would be in advance of the hearing to lift the automatic suspension. The court would need to see the defences to properly understand the claim, what would be involved for trial and consequently when and how a trial could be ordered on an expedited basis.
Waksman J considered that the proposed expedited timetable was unrealistic and could not be achieved in the short timeframe, particularly given the complexities of disclosure and confidentiality ring arrangements that would need to be put in place (as is commonly done in procurement claims in order to protect commercially sensitive aspects of bids). It would not be good administration to order a rushed trial.
Waksman J also considered that, practically, little would be achieved by way of disclosure before the hearing of the Contract Making Suspension, particularly as the parties would be preparing evidence for that hearing at the same time.
Also relevant was that, if an expedited trial was ordered, expedition would become academic if the Contract Making Suspension was lifted. There was no case for there to be an expedited trial of a damages only claim.
The court was also not minded to set a trial date in anticipation of a decision on the Contract Making Suspension in order to 'get ahead in the queue'. That would not be a good administration of justice in circumstances where it may become academic in any event. A decision on expedition, if made following a decision that the Contract Making Suspension be maintained, would need to consider the appropriate judicial resources, as best they can be found, in accordance with whatever time limit is considered appropriate.
Finally, Waksman J did not consider there to be any other special factors in the sense that the case for expedition case was so clear that it had to be dealt with then, in advance of being considered together with the application to lift the Contract Making Suspension.
Waksman J also made certain orders regarding confidentiality ring arrangements, including ordering a two tier confidentiality ring to apply after the applications to lift the Contract Making Suspension and for expedition had been determined.
Case details:
- Court: Technology and Construction Court
- Judge: Mr Justice Waksman
- Date of judgment: 19 April 2022
This article was first published by Lexis®PSL on 31/05/2022
