The New Lottery Company Limited and Northern & Shell PLC v The Gambling Commission [2026] EWHC 891 (TCC)

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The New Lottery Company Limited and Northern & Shell PLC v The Gambling Commission

[2026] EWHC 891 (TCC) | High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (KBD)

Before Mrs Justice Joanna Smith DBE | Heard Trial judgment | Handed down 17 April 2026

Interactive Process Flow | Fourth National Lottery licence competition and later modifications

Case Analysis Process Flow

0 of 7 nodes explored

1. Case Overview

Case: The New Lottery Company Limited and Northern & Shell PLC v The Gambling Commission [2026] EWHC 891 (TCC)
Court: High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court (KBD)
Judge: Mrs Justice Joanna Smith DBE
Hearing Date: Trial judgment
Judgment Date: 17 April 2026
Case No: HT-2024-000035

The New Lottery Company Limited and Northern & Shell PLC challenged the Gambling Commission's competition for the Fourth National Lottery licence and later modifications to the enabling agreement and licence awarded to Allwyn. The Process Claim alleged undisclosed criteria, inadequate feedback, manifest errors, conflict of interest and incumbency advantage. The Modifications Claim alleged that implementation, games, cost and licence-extension changes required a new concession award procedure. After a long trial, the court dismissed both claims (paragraphs 1-8 and 1120-1121).

Central Legal Test: The Process Claim required proof of breach of the Concession Contracts Regulations 2016 through manifest error, unequal or opaque evaluation, unmanaged conflict or unlawful competitive advantage, with causation and standing. The Modifications Claim turned on whether the challenged changes were substantial or fell within the foreseeable-circumstances exception in regulation 43, whether they caused a lost chance, and whether proceedings were issued within 30 days (paragraphs 4-8 and 1121).

Parties and Representation

Claimants: The New Lottery Company Limited and Northern & Shell PLC, represented by Daniel Toledano KC, Michael Bowsher KC, Azeem Suterwalla KC, Maximilian Schlote and Khatija Hafesji, instructed by Bryan Cave Leighton Paisner LLP.

Defendant: The Gambling Commission.

Interested Parties: Allwyn Entertainment Ltd and Allwyn International A.S., represented by Mark Howard KC, Joseph Barrett KC and Malcolm Birdling, instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.

Fourth Licence Competition

The Commission ran the competition between October 2020 and March 2022. TNLC failed pass-fail requirements, while Allwyn won the licence. TNLC said correct evaluation would have made it the winner and claimed lost profit (paragraphs 1-4).

Modified Implementation

After award and litigation-related delay, the Commission changed implementation timing, committed games, regulatory-investment costs and the possibility of a two-year extension. TNLC said the resulting contract was materially different and it lost a chance to win a fresh competition (paragraph 5 and 1089-1121).

2. Procedural History

Large and Changing Case

The trial involved substantial legal teams, witnesses, disclosure and confidentiality. The court criticised the Process Claim's shifting and abandoned allegations but determined every remaining live issue on its merits (paragraphs 6-8).

Two Distinct Claims

The Process Claim attacked the original competition and outcome. The Modifications Claim attacked post-award changes under regulation 43, claimed damages for loss of a chance in a hypothetical fifth competition and initially sought ineffectiveness in relation to 2023 changes (paragraphs 4-5).

3. Defendant's Position

The Commission defended the evaluation, feedback, financial-strength and propriety decisions, denied unmanaged conflicts or material incumbency advantage, and said the modifications were foreseeable and non-substantial. It and Allwyn also disputed causation, standing and limitation (paragraphs 4-8 and 1121).

Evaluation Defended

The Commission said it applied disclosed pass-fail requirements lawfully, reached rational conclusions on participant protection, financial strength and propriety, and was entitled to its evaluative judgement.

Conflicts and Incumbency

It said competition rules and controls appropriately addressed Rothschild's relationships and any Allwyn conflict, while virtual-data-room incidents did not give Camelot an unlawful advantage requiring disqualification.

Regulation 43

The Commission and Allwyn said the modifications did not alter the economic balance or overall nature of the licence and arose from circumstances a diligent authority could have foreseen. They said TNLC had no real chance of winning a new competition and sued too late.

4. Claimant's Position

TNLC said undisclosed standards and inadequate feedback infected pass-fail evaluation, the Commission made manifest errors in scoring all three principal bidders, and Allwyn and Camelot should have been excluded. It also said the later modifications materially improved Allwyn's bargain and demanded a new competition (paragraphs 4-5).

Process Complaints

TNLC challenged participant-protection, best-practice, financial-strength, monitoring and propriety assessments, together with the transparency of feedback and alleged use of undisclosed criteria.

Disqualification Cases

It alleged Allwyn conflict of interest and Camelot incumbency advantage through information and data-room issues. It said both rivals should have failed or been disqualified, leaving TNLC as winner.

Modification Case

TNLC relied on extended implementation, altered initial functionality, games commitments, investment costs and a possible two-year licence extension as a package that changed the economic balance and would have attracted or changed bids.

5. Court's Analysis

No Manifest Evaluation Error

The court rejected the remaining complaints about undisclosed criteria, feedback and pass-fail assessment. TNLC did not establish manifest error in its own scoring or the treatment of Allwyn and Camelot (paragraph 1121(i)).

No Required Disqualification

Neither Allwyn's alleged conflict nor Camelot's incumbency position required exclusion. The Commission's controls and decisions did not render the competition outcome unlawful (paragraph 1121(i)).

Modifications Were Not Substantial

Viewed together and against the contract as a whole, the changes did not shift the economic balance to Allwyn in a manner not already provided for in the competition version of the agreement and licence (paragraph 1121(ii)).

Changes Were Foreseeable

The circumstances giving rise to the implementation changes were foreseeable for regulation 43 purposes. The claimants therefore did not establish breach requiring a new concession procedure (paragraph 1121(ii)).

No Causative Lost Chance

Even if a breach had occurred, the evidence did not show a real prospect that TNLC would have won a hypothetical fifth competition (paragraph 1121(ii)).

Damages Claim Was Late

The redacted 21 November 2023 letter, seen on 29 November, disclosed the essential fact of a possible two-year extension and was enough to start time. The February 2024 Modifications Claim was outside the 30-day period (paragraphs 1086-1119).

6. Decision and Outcome

Winner: The Defendant and Interested Parties (The Gambling Commission and Allwyn) succeeded.

Result: The Process Claim and Modifications Claim were dismissed. The Fourth Licence competition reached a lawful outcome; the modifications were foreseeable and not substantial; no causative lost chance was proved; and the damages claim concerning modifications was time-barred (paragraphs 1120-1121). The Claimants (The New Lottery Company Limited and Northern & Shell PLC) did not succeed on this application.

Practical Effect: Allwyn's Fourth National Lottery licence and the challenged implementation arrangements remained in place. TNLC recovered neither lost-profit damages for the original competition nor lost-chance damages for the modifications.

Process Claim Dismissed

No manifest error, disqualifying conflict or unlawful incumbency advantage was proved (paragraph 1121(i)).

Modifications Claim Dismissed

The changes did not breach regulation 43 and caused no proved loss (paragraphs 1120-1121(ii)).

Limitation Independently Fatal

Actual knowledge sufficient to indicate infringement arose on 29 November 2023, so the February 2024 damages claim was late (paragraphs 1105-1119).

7. Key Legal Principles and Practice Points

Manifest Error Review

The court reviews procurement evaluation for legal error and manifest error, not by substituting its own score or commercial assessment for the authority's reasoned judgement.

Modification as a Package

Substantiality is assessed against the original contract as a whole and the economic balance provided for by the competed documents, considering related changes together.

Foreseeability

The regulation 43 enquiry concerns whether a diligent authority could foresee the circumstances requiring modification, applied at the legally relevant time, not whether every eventual term was predicted.

Limitation Knowledge

Time starts when the claimant knows essential facts clearly indicating an infringement, not when it has every document or enough detail for a fully particularised pleading (paragraphs 1086-1111).

Confidentiality-Ring Knowledge

Information available only to solicitors in a ring is not automatically attributed to a client expressly prohibited from seeing it, although that point did not save this claim because the client already had sufficient redacted information (paragraphs 1112-1118).

Practice Implications

For Claimants:
Stabilise each procurement allegation before trial and connect it to a pleaded duty, evaluative consequence and causal result. For modifications, issue promptly once essential facts are known, even if exact terms remain confidential or incomplete.

For Defendants:
Preserve a clear evaluation record, disclose the governing criteria and document conflict and incumbency controls. For post-award changes, record foreseeability, contractual authority, economic effect and why the overall nature remains unchanged.

General Practice Points:
Large procurement claims need disciplined issue control. A claimant should distinguish original-process error, post-award modification, disqualification, causation and limitation, and avoid treating every criticism as a route to the same lost-profit result.

Legal Disclaimer

This interactive process flow is provided for educational and professional development purposes only and does not constitute legal advice. The content reflects interpretations and analyses that may not apply to specific circumstances. Contract interpretation depends on specific wording, jurisdiction, and factual context. Always consult qualified legal professionals before making decisions based on this content. SCCSI and its contributors accept no liability for reliance on this material.