In a judgment of 17 April 2026 (The New Lottery Company Ltd v Gambling Commission [2026] EWHC 891 (TCC)), Joanna Smith J rejected all grounds advanced by The New Lottery Company and Northern & Shell plc (TNLC) to the award of the Fourth UK National Lottery Licence to Allwyn.
Various claims were advanced, including that the process had been unfair and contained manifest errors. However, the issue addressed in this note concerns another central feature of the case – the claim that unlawful modifications had been made to the licence which necessitated a new award procedure. These included a two-year extension of the licence term. The judgment engages in a detailed analysis of the law concerning modifications.
While the case concerned the Concession Contracts Regulations 2016 (SI 2016 No. 273), similar (although not identical) modification provisions arise under the Procurement Act 2023, which now governs the award of public contracts, including concession contracts (see Section 74(1)(b) and 74(3) (not substantial) and Schedule 8(4) (unforeseeable circumstances))
The background to the proceedings was complicated.
The Modifications
The Commission relied on the not substantial and unforeseen circumstances exemptions for modifications: (i) modifications that are not “substantial” (Reg 43(1)(e) and 43(9)) and (ii) modifications which have been brought about by circumstances which a diligent contracting authority could not have foreseen (Reg 43(1)(c)):
“43 Concession contracts may be modified without a new concession contract award procedure in accordance with these Regulations in any of the following case
(c) where all of the following conditions are fulfilled—
(i) the need for modification has been brought about by circumstances which a diligent contracting authority or utility could not have foreseen,
(ii) the modification does not alter the overall nature of the concession contract,
(iii) in the case of a concession contract awarded by a contracting authority, any increase in value does not exceed 50% of the value of the original concession contract;
(e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph (9);
(9) A modification of a concession contract during its term shall be considered substantial for the purposes of paragraph (1)(e), where one or more of the following conditions is met—
(a) the modification renders the concession contract materially different in character from the one initially concluded;
(b) the modification introduces conditions which, had they been part of the initial concession contract award procedure, would have—
…
(ii) allowed for the acceptance of a tender other than that originally accepted …
(c) the modification changes the economic balance of the concession contract in favour of the concessionaire in a manner which was not provided for in the initial concession contract”
The date on which the Court should assess foreseeability under regulation 43(1)(c)(i)
Date of award, not the date of tender publication
“895 There appears to be no English authority on this point, and the wording of Regulation 43(1)(c)(i) provides no real assistance. All parties referred me to the Directive, Recital (76) which begins with the sentence “Contracting authorities and contracting entities can be faced with external circumstances that they could not foresee when they awarded the concession, in particular when the performance of the concession covers a long period” (emphasis added). The Claimants acknowledge that the term “award” is not clearly defined in the Directive but they say this sentence puts the matter beyond doubt. They refer me (to similar effect) to Case C-683/22 Adusbef at [63]:
“it is apparent from recital 76 of Directive 2014/23 that point (c) of the first subparagraph of Article 43(1) of that directive is intended to confer on contracting authorities and contracting entities a certain discretion to adapt the concession to external circumstances that they could not foresee when they awarded the concession”.
897 On balance, I prefer the Claimants’ submissions and consider that in the ordinary course the appropriate vantage point for the assessment of foreseeability will be the date of the award of the Concession Contract. I consider this to be tolerably clear from the first sentence of Recital 76 of the Directive. Furthermore, given that (as the IPs submit) the principal purpose of the modifications rules (as explained by the CJEU in Pressetext Nachrichtenagentur GmbH v Republik Österreich (Bund) (Case C-454/06) [2008] Bus LR D118 (“Pressetext”)) is to prevent contracting authorities from undermining the integrity of public procurement procedures by making changes to public contracts after the contract has been awarded, it appears to me to make good practical sense to test the issue of foreseeability as at the moment the contracting authority awards the contract (rather than at some earlier point before the authority has had to commit (finally) to its terms).”
What must be foreseen
Depends on the Facts
Considered Salt International Ltd v Scottish Ministers (2016) SLT 82 (concerning a direct award) but found it not to be of assistance (its findings were very much fact-specific)
“903 The wording of Regulation 43(1)(c)(i) is (perhaps deceptively) straightforward. Whether it is applicable must (as the Claimants submit) be determined on the facts of the particular case before the Court. The question to be decided is whether the need for modifications was brought about by “circumstances which a diligent contracting authority or utility could not have foreseen”. Although this begs a question as to how one is to interpret the concept of “circumstances” and, specifically, whether it is to be interpreted in a very granular fashion, requiring all aspects of the “circumstances” to have been foreseen (including their magnitude and extent), I do not consider that I am assisted in determining this question by Salt International. Rather, as it seems to me, the correct approach is to consider the question of foreseeability when I come to look at the facts.”
Standard of proof under Reg 43(9)(b)(ii)
i.e. in relation to whether the change would have allowed for the acceptance of a tender other than that originally accepted
Balance of probabilities (not real prospects); rejected the reasoning of Waksman J in James Waste Management LLP v Essex County Council [2023] EWHC 1157 (TCC), preferring the analysis of Andrews J in Edenred UK Group v HM Treasury [2015] EWHC 90 (QB)
“919 With the greatest of respect to Waksman J, I cannot agree with this reasoning (which, as the IPs pointed out, is strictly obiter and so has a lower degree of persuasive force) for a number of reasons:
i) First, I cannot see how the concept of a “real prospect” (whether in the CPR Part 24 sense or otherwise) can be extracted from, or read into, the words with which Waksman J was dealing in that case, and with which I am dealing now in Regulation 43(9)(b)(ii) CCR 2016. There is nothing in the wording to suggest that the standard of proof is “real prospect”. I disagree with the Claimants that the use of the words “would have allowed for” somehow imports the concept of “real prospect” (and indeed that was not identified as the basis for the decision in James Waste). In my judgment these words require the Court to determine whether the circumstance identified in sub-paragraph (ii) would have transpired in the counterfactual – that is to be determined by reference to the balance of probabilities. True it is that in the relevant hypothetical (involving the modification) all bids would have been different; but the question for the Court on the natural and ordinary meaning of the words used in sub-paragraph (ii) is whether the modifications would have changed the outcome in that they “would have allowed for the acceptance of a tender other than that originally accepted”. If so, then a failure to engage in a new concession award procedure would leave the existing contractor in a position of competitive advantage, thereby distorting the competition. That is a question to be determined on the balance of probabilities.
ii) Second, there is also nothing in the words of the provision to indicate that the standard of proof differs between Regulation 43(9)(b) sub-paragraphs (ii) and (iii). If Waksman J’s analysis were right, it would mean that the interpretation of the words “would have” for the purposes of Regulation 43(9)(b)(iii) is different from the interpretation of the words “would have” as used in connection with Regulation 43(9)(b)(ii). I consider that this would be a surprising result. As the IPs point out, the same legislative word or phrase cannot be interpreted as having two materially different meanings in the context of a single provision. Indeed, legislative words are presumed to be used consistently throughout the relevant piece of legislation, save where there is a clear indication to the contrary (see Bunyan v Fridays Ltd [2025] 1 WLR 4112 (CA) per Lewison LJ at [49]).
iii) Third, the Claimants have not advanced a principled reason as to why the standard of proof should differ as between sub-paragraphs (ii) and (iii) of Regulation 43(9)(b). I do not consider that the words “allowed for” constitute a clear (or indeed any) indication that sub-paragraph (ii) should be treated differently and I also disagree with the Claimants that those words import the concept of “balance of probabilities as to whether there is a realistic chance”. This is a way of putting the point that was adopted, but not explained, by Waksman J in [159] James Waste when he said: “Looked at overall, it is quite impossible for me to conclude on the balance of probabilities…that there is a real prospect that AC would have won this putative counterfactual procurement”.
iv) Fourth, I am not persuaded that the fact that a determination as to what would have happened in the counterfactual may be difficult, or may impose “too high a burden” is a reason to depart from the clear wording of the Regulation.
v) Fifth, I am inclined to disagree with Waksman J over the significance of the observations of Andrews J in Edenred. Although I accept that strictly her observations at [119] and [123] were obiter, they appear to me to make crystal clear her views as to the importance of the language that had been used by the Court in Pressetext (language now replicated in Regulation 43 CCR 2016), namely “would have allowed for” not “might have allowed for”. She plainly referred to the concepts in both limbs (ii) and (iii) of Regulation 43(9)(b). Her observations in [123] explain the need to go beyond the hypothetical or possible into the realms of what “would” have happened. I respectfully agree with those observations and consider that this reasoning is equally applicable in the present case. I note that in Bechtel, Fraser J had no difficulty in applying the (exactly similar) straightforward language in Regulation 88(7)(b)(ii) UCR 2016 at [503] (“…the changes, had they been part of the original ITT, would not have allowed for the acceptance of a tender other than that accepted…BBVS would have been the winning bidder if these dates had been included originally, on the terms of the ITT as drafted and the tenders as evaluated”).
vi) Sixth, in so far as may be necessary, I consider the decision of Waksman J in James Waste on this point to be plainly wrong.
920 For all the reasons set out above, I therefore consider that the standard of proof to be applied in respect of the wording of Regulation 43(9)(b)(ii) is on the balance of probabilities.”
Approach to the Evidence under Regulation 43(9)(c)
i.e. in considering whether the modification is substantial under Reg 43(9)(c)
Evidence of the factual context of a modification — including the reasons for it — was admissible. Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC) supported this approach [931–933], as did James Waste [934–935]. The Judge highlighted, in this regard, the purpose of the procurement rules:
“936 Standing back, I consider this approach to be unsurprising in light of the legislative purpose of the modifications provisions in CCR 2016. Put simply, that purpose is to prevent a contracting authority affording the successful bidder unequal and therefore unlawful treatment by making changes after the award decision which (i) would have affected the outcome of the procurement if they had been incorporated into the original contract terms; or (ii) give the successful bidder a better commercial deal than the one it agreed to accept in its bid. I consider that it is important to keep that purpose in mind when interpreting the Regulations, and I also consider that such an approach is entirely consistent with the observations of Coulson LJ in Optima at [59]-[60] (to which I referred earlier in this judgment) to the effect that the rules around public procurement “are not (and must never be allowed to become) an end in themselves, just as those rules should not be applied in a formulaic or unrealistic way”.
937 I agree with the IPs that it is no part of the purpose of procurement law generally, or the modifications rules in particular, to prevent contracting authorities from taking reasonable steps to address external circumstances that are outside the control of the economic operator performing the contract or render the administration and delivery of large complex public contracts and projects unmanageable or impracticably onerous. Of course, modifications to a concession contract must fall within one or more of the gateways in Regulation 43 CCR 2016 if a new concession contract award procedure is to be avoided and those gateways are to be interpreted narrowly (Edenred (UK Group) Limited v HM Treasury [2015] UKSC 45 (“Edenred (UKSC)”) at [28]). But it is also clear that the Regulations must be applied in a realistic way. In my judgment, requiring the Court to close its eyes to the circumstances in which a modification came to be made, as the Claimants would have it do, is the antithesis of this. As Waksman J pointed out in James Waste (at [139)], in similar vein, procurement rules “are designed to protect against real and not hypothetical distortion of competition”. Whether or not there is a real distortion of competition is best addressed by considering the modifications in their factual context rather than in a vacuum.”
The Judge also rejected the Claimants’ submission that existing contractual provisions must first be tested for lawfulness under Reg 43(1)(a) before being relied on as part of the substantiality comparison — Regs 43(1)(a) and 43(1)(e) are sequential, stand-alone gateways: “the tests in 43(1)(e) and 43(1)(a) require a sequential analysis and that 43(1)(a) is a subsequent test to be applied if 43(1)(e) fails” ([943])
Factual Context and Cause of Modifications
The modifications were caused by the combination of the Camelot and IGT litigation, the Suspension, and the lack of cooperation / obstruction from Camelot and IGT; this was a relevant part of the factual context when deciding if the modifications were substantial
“965 [In] my judgment, it is not open to the Claimants to advance a case that the only effective cause of the Challenged Modifications was the Camelot Proceedings…
966 I therefore accept that (in general terms) the need for the Challenged Modifications came about owing to a combination of the hostile litigation pursued by Camelot and IGT with a view to impugning the integrity and deliverability of Allwyn’s Application, together with the lack of cooperation by Camelot and IGT and the lengthy and difficult period of negotiations between Allwyn and IGT. I find that IGT (unsurprisingly) chose to take a commercial approach to the negotiation of a new agreement with Allwyn designed to achieve a result that was in its own interests. I find that these factors fundamentally undermined Allwyn’s ability effectively to progress transition, leading to very substantial delay, increased costs and loss of revenue for Good Causes and for Allwyn. I also find that (again in general terms) the Challenged Modifications would almost certainly have been required irrespective of the identity of the successful bidder (unless that bidder had been Camelot).
968 For reasons I have already explained at length, I agree with the IPs and the Commission that this factual context should not be ignored when it comes to a consideration of the economic balance under Regulation 43(9)(c).”
Claimants had no evidence to show that there was even a “real prospect” of a different tender being accepted
The Claimants’ argument that the changes would have allowed for the acceptance of a different tender was dependent on the “real prospect” test and so failed given the holding on the standard of proof; in any event, there was no evidence to support the case
“971 As I understood their case on Reg 43(9(b)(ii) in closing, it is wholly dependent upon the Court accepting that the correct standard of proof is “real prospect”.
972 iii) However, even assuming the correct test to be “real prospect of success”, the Court would expect to see evidence relating to Camelot’s bid to support the existence of a “real” as opposed to a fanciful chance. I do not consider it to be sufficient simply to assert in general terms that all applicants would have changed their financial models in order to deal with the longer implementation period, or that “reasonable bidders” would have taken the potential for there to be a two year extension into account in their financial modelling (as the Claimants do in closing). There is no evidence at all to indicate how Camelot’s bid might have changed given the potential two year extension and the Claimants’ closing submissions go no further than to say that “[d]ifferent bidders would have made different judgments”, but that the likelihood of any bidder ignoring the prospect of a two year extension is “low”. However, they have no evidence whatever as to what Camelot would have done and do not even point to any evidence from which I can draw any inference as to what Camelot might have done. I agree with the IPs that there is no evidence to support a finding that there is a real prospect that, in a modified 4NLC, Camelot (and not Allwyn) would have been identified as the successful Applicant.
iv) I bear in mind that Allwyn proposed the highest level of contributions to Good Causes and achieved the highest aggregate score in the Competition. While it is true that Camelot achieved a better score in relation to the Business Plan Areas, the Claimants have given me no reason to think that the contributions to Good Causes from the bidders would have changed in this counterfactual or that there is any particular reason (beyond pure speculation) why Camelot would have overtaken Allwyn’s aggregate score. The fact that Mr Wilson accepted in cross-examination that “a relatively small increase” in Camelot’s contribution to Good Causes or a “relatively small reduction” in Allwyn’s contribution to Good Causes would have changed the outcome (without something more) does not appear to me to take matters further. When Mr Wilson was being cross-examined on the point, it was put to him that the bids might have been structured differently or that the financials contained within the bids would have been different, but (as Mr Wilson remarked) that involves “hypotheticals”.
v) There is no evidence before the Court to indicate that in a modified 4NLC there is a real prospect that the financials in Camelot and Allwyn’s respective bids would have been different in such a way as to leave Camelot in a winning position, or, more specifically that Camelot would (or even might) have submitted a higher Good Causes Contribution figure than Allwyn as a result of the Challenged Modifications. No such suggestion was made to either Mr Wilson or Mr Tanner.
…
viii) I asked Mr Toledano in closing submissions to explain his case as to the basis on which the Court could find that any of the Challenged Modifications actually would have changed the position such that Camelot would have won, to which he responded that he could not identify any specific point that the Claimants say would have been different. He fairly accepted that the furthest the Claimants could take this argument is to say that the bids and the financial models that the bids relied upon would or might have looked different. But in my judgment, that the bids might have looked different is not sufficient to establish a real prospect that Camelot would have prevailed in the Competition.”
The Modifications did not shift the economic balance in Allwyn’s favour
2-year extension to the Licence
“984 neither the fact of an extension, nor the period of any extension is guaranteed”
985 While it may be the case that (if an extension were to be granted under clause 3.8) Allwyn would increase its operating profit in numerical terms, that ignores the impact of the delays and Allwyn’s increased costs … just as it ignores the fact that, on the other side of the equation, the Contribution to Good Causes would also increase commensurately.
986 This modification has no effect on the financial mechanisms of the contract (Good Causes Contribution, share of Surplus, the recovery of costs) and Allwyn is not receiving a larger share of the Surplus than it would have done under the Competition version of the Enabling Agreement and Fourth Licence. There is no change to the way in which Allwyn’s share of the Surplus is calculated under the Licence.”
992 Standing back, and applying the approach adopted by Fraser J in Bechtel, I cannot see that this is the sort of modification that would distort competition. This is a modification that arises by reason of the delay and disruption…”
Extension of the Implementation Timetable
i.e. Allwyn need only reach Initial Functionality at the start date and delay Fully Implemented Commencement to a later date
“994 [This] modification was also directly responsive to, and required by, the significant disruption and delay…
998 [Having] regard to the provisions of the existing Enabling Agreement, this modification does not change the economic balance. Clause 32 permitted extensions of time where delays were caused which were outside the Incoming Licensee’s control. Pursuant to clause 29, the Commission and Allwyn could have agreed Partially Implemented Commencement which would have enabled Allwyn to be granted the Fourth Licence subject to completion of any Outstanding Implementation Steps. That this was possible was known to all applicants.
1000 [There] is in fact no evidence that Allwyn stands to benefit financially from the changes in the Implementation timetable or that those changes have altered the economic balance of the contract.
1001 The Claimants contend that by gaining an extra 8 months on top of the original 22 months for Implementation, Allwyn obtained some additional flexibility to plan Implementation “as best suited it” and that “the added time and flexibility in and of itself is the valuable benefit”. But in my judgment a change of this type, which is designed to deal with a serious contract delay causing acknowledged issues with the Licensee’s ability to implement its Application by the Start Date, does not (without more) alter the economic balance.
1002 Once again this is also not the sort of change (in all the circumstances) which distorts competition.”
First Year Committed Games / RICs / Costs Cap
Time shift or cost allocation mechanisms, none of which changed the economic balance
The Contract as a Whole
“1017 Standing back and having regard to the Challenged Modifications as a whole, I reject the submission that overall they “clearly favour Allwyn” or that Allwyn is “better off” as the Claimants contend or that, on its own, that is the correct analysis. In fact, as the Commission points out in closing, the value of the Fourth Licence has decreased by circa £250 million (as is clear from the Modifications Notice) and Allwyn’s costs have significantly increased by reason of the delays to transition. As the IPs’ witnesses have explained in unchallenged evidence, Allwyn is in a worse position because it has not yet been able to start to recoup the costs of transition.
1018 Furthermore, it is artificial and unrealistic to consider only the modifications to the Enabling Agreement and Licence which appear to have favoured Allwyn without also considering whether there are other modifications designed to ensure that the economic balance remains the same …” [The Court then highlighted modifications which the Claimants’ acknowledged were ‘negative’ from the perspective of Allwyn]
Regulation 43(1)(c) – Unforeseen Circumstances
i.e. modifications were unforeseen (and did not alter overall nature of contract, and increased value not more than 50%, these latter two conditions being accepted as having been met)
Smith J held that this gateway did not apply as the original litigation and difficult negotiations between Allwyn and IGT were foreseeable at the date of the award
“1023 I have already made findings as to the combination of factors which caused the delays to Allwyn’s implementation and thus necessitated the Challenged Modifications. These were the Camelot and IGT Proceedings, the lack of cooperation by Camelot and IGT in their dealings with Allwyn, including the negotiations between Allwyn and IGT regarding handover (Issue 4(b) and (c)). I have also held that, as a matter of law, the date on which foreseeability is to be assessed is the date of the award (i.e. September 2022). It is therefore relevant to consider factors that were known to the Commission up to this date in order to determine what (acting diligently) it could, or should, have foreseen.
1025 It is common ground that the Commission was aware from the outset of the Competition that there was a risk of a legal challenge from a disgruntled applicant.
1031 I find that the risk of litigation was foreseen or foreseeable by a diligent authority from the very outset of the Competition (including, if I am wrong as to the date for foreseeability, from the date of publication of the tender documents).
1038 I agree with the Claimants that litigation by non-applicants (including subcontractors) could and should have been foreseen by a reasonably diligent public authority from the outset, not least because of the size and significance of the Competition.
1045 [If] one takes the date of award as the relevant date (as I have determined is the right approach), I consider that the Commission (acting diligently) should and could have foreseen that negotiations between Allwyn and IGT would be both protracted and difficult.
1046 For all the reasons set out above, I agree with the Claimants that (at least in general terms) each of the matters relied upon by the Commission and by the IPs as having given rise to delays which caused the need for the Challenged Modifications could have been foreseen by a diligent contracting authority as at the date of the award. Once it is accepted that these various matters could each have been foreseen, I consider it to be unrealistic and unnecessary to require a consideration of whether they could have been foreseen in combination. In my judgment it is enough that the Commission did foresee (or, acting diligently ought to have foreseen) each of those factors occurring.
1047 Standing back, I should return briefly to the concept of “foreseeable circumstances”. While this concept must be considered having regard to the facts of the particular case that is before the Court, it must also be approached realistically (see Optima), always bearing in mind that the focus in Regulation 43(1)(c) is on circumstances that the diligent contracting authority “could not have foreseen” (rather than on circumstances it could have foreseen). It certainly cannot be said that the Commission (acting as a diligent authority) could not have foreseen that one or more of the relevant circumstances in this case would occur. The idea that an authority could slip through this gateway (which is of course a derogation from the rules intended to ensure fair and effective competition in the field of public contracts) by focusing on an increasingly granular description of those “circumstances”, and/or the need for any particular combination of circumstances or their extent or magnitude to have been foreseen, appears to me to be contrary to the requirement that the gateways should be interpreted narrowly (see Edenred (UKSC) at [28]), just as it is neither practical nor realistic. That cannot have been the intention of this provision.
1048 Accordingly, I consider that the Commission cannot rely upon the gateway in Regulation 43(1)(c).”
Modifications Claim was Time Barred (brought more than 30 days from cause of action accruing)
“1105 In my judgment, while the Claimants certainly did not have access to complete information about all of the Modifications in the redacted 21 November 2023 letter, they were specifically informed that a provision had been agreed enabling a 2 year extension – the very modification which the Claimants have relied upon as “critical” in its own right. Given the way in which the Claimants have advanced their case as to the 2 year extension modification at this trial, it is very difficult to see why the information contained in the redacted version of the 21 November letter was not sufficient to provide the Claimants with the essential facts required to justify taking proceedings. That the Claimants had not seen the exact provision and did not know when the extension review might take place, who could insist on the extension or how the provision would operate does not appear to me to be significant. Equally the fact that they may not have had enough to draft a fully and comprehensively particularised statement of claim does not matter.
1106 The Claimants were of course already aware of the existing provisions of the Licence and they knew the essential facts – that express provision had been made to extend the term of the Licence by up to 2 years. That knowledge is enough in my judgment clearly to indicate the existence of a cause of action.
1109 In light of this pleaded case, it is difficult to see what more the Claimants needed to know to understand the existence of the cause of action in respect of the potential for the 2 year extension. While the Claimants are right to say that the modifications must now be considered as a package and must be assessed having regard to their impact on the contract as a whole, I cannot see that there is anything in this pleading as to the 2 year extension modification that could not have been pleaded after sight of the redacted letter on 29 November 2023. Furthermore, the fact that the Claimants plainly did not know the detail of the other Challenged Modifications does not affect the date on which time starts to run for the purposes of the Regulation, as is clear from the Court of Appeal’s decision in Sita UK Ltd v Greater Manchester Waste Authority per Elias LJ at [89]:
“I am satisfied, as was the judge below, that time does not start afresh where what is being relied upon to start time running again is a further breach of the same duty, whether it in fact occurred before or after the breaches already known”.
1110 I note that this is entirely consistent with the proposition in Bromcom (set out above at paragraph 796) that the Court should assess what the claimant knew, rather than being concerned with what it did not know.
1111 I find that the Claimants had actual knowledge sufficient clearly to indicate an infringement when they saw the letter of 21 November 2023 in redacted form on 29 November 2023. Time thus began to run on that date and the Modifications Claim is out of time.”
Obiter comments as to application of the time limit if relevant information had been in a confidentiality ring to which the client did not have access
“1112 [If] I am wrong as to the date of relevant knowledge, then the Commission and IPs would not have persuaded me that the Claimants were fixed with the knowledge of their lawyers such that by 14 December 2023 they had access to information as to the full detail of the modifications and were in a position to know that they had grounds to start proceedings.
1113 The relevant information was released into a Confidentiality Ring to which the Claimants did not have access. There is no authority for the proposition that in such a case the knowledge of the Claimants’ solicitors is to be attributed to the Claimants, and such a proposition appears to me to be both commercially unrealistic and contrary to common sense. It is also extremely unattractive when it is an argument that is made by the party which was insisting on confidentiality in the first place – that this was because the Commission was seeking to protect Allwyn’s confidentiality does not appear to me to affect the analysis.
1114 I asked Mr Toledano during closing submissions why BCLP could not simply have advised their clients that they needed to commence proceedings given the content of the information that was available to them in the TCRO, to which he responded that there is a distinction between a lawyer advising a client to commence proceedings on the one hand and the question of whether, in such circumstances, the client itself in fact has sufficient information and knowledge so as to start the clock running. On reflection, I tend to agree. I do not know whether it is common practice in procurement cases for lawyers to operate on the basis of instructions from clients that if confidential information available only to those lawyers suggests that there are grounds for bringing a claim then they should issue a claim. But that is not really the issue. The real question is whether the lawyer’s knowledge can be attributed to the client, or put another way, whether the client has constructive knowledge by reason of his lawyer’s access to the TCRO. In my judgment there is no such attribution and the client has no such constructive knowledge.
1115 Mr Barrett took me to the case of Oracle Security Services Limited v Barts Health NHS Trust and Place Group Limited [2024] EWHC 1201 (TCC) (“Oracle”) in which Mr Andrew Mitchell KC, sitting as a DHCJ, expressed an obiter view that there was no reason on the facts of that case (where the solicitor had been instructed to obtain and receive relevant information) why the knowledge of the claimant’s solicitor that there were grounds to bring proceedings should not be attributed to the claimant company for the purposes of Regulation 92(2) of the PCR 2015 (the equivalent regulation to 53(2) CCR 2016).
1116 However, Oracle was not a case in which the relevant information had been released into a confidentiality ring to which only the solicitor had access. I find it difficult to see how the knowledge of the solicitor can be attributed to the client in circumstances where the client is expressly prohibited from seeing the information to which the solicitor has access. How can the solicitor be the alter ego of the client for these purposes? While I accept that the principle of rapidity is a key aspect of procurement law which underpins the provisions in the Regulations dealing with limitation, and while it is therefore a useful principle to have in mind when considering submissions on limitation (see Oracle at [32]), I do not consider that, in the circumstances of this case, it requires the Court to find that information which the Claimants were expressly precluded from seeing and which the Commission understood and intended they would not see was nevertheless known to them by reason of it being known to their solicitors.
1117 Furthermore (and assuming that it is common in the TCC for solicitors to be instructed to issue proceedings even in circumstances where their client has not had access to the relevant information) I have no evidence as to the nature and scope of any such delegation of authority to BCLP.
1118 Finally, I would not have accepted the argument that efforts should have been made to de-designate the confidentiality of the 21 November 2023 letter and the modified agreements. Aside from the fact that the Claimants had no in-house lawyer such that a de-designation to Tier Two would have been of no practical assistance, I am inclined to agree with the Claimants that it is most unlikely that any de-designation process would have happened any quicker than the process that was in fact undertaken of determining that the documents could be released from the Confidentiality Ring and seen by the Claimants on 5 January 2024.”
