The appeal in The New Lottery Company v Gambling Commission centres on a decision taken in July 2023 to contribute around around £70m to Camelot’s marketing activity in support of the National Lottery, of which Camelot is the licensed operator. The Gambling Commission (GC) took the view that the contribution did not give any economic advantage to Camelot, and hence was not a subsidy: no entry was made on the subsidy database, and no request was made to the CMA for its advice (as would have been necessary for a subsidy of that amount).
The New Lottery Company (NLC) is involved in various UK and foreign lotteries that might be said to compete with the National Lottery. According to oral submissions made at the case management conference (CMC) held in July 2025, in March 2025 it made a request to the GC for information about the decision under section 76 of the Subsidy Control Act 2022. However, the GC took the view that section 76 did not apply as no subsidy had been given, and appears to have provided only a copy of the decision (which also appears at some point to have been on the GC’s website). NLC then filed an appeal with the CAT, and the GC at that stage provided further documentation.
At the CMC, Camelot was granted permission to intervene. The CAT made it clear that it wanted to hold the main hearing in early December 2025. The main issue at the hearing was therefore how to deal with NLC’s wish to reconsider its appeal in the light of the new information it had recently obtained from GC, which might lead it to want to amend its appeal or apply to introduce expert evidence. The CAT decided in its order to require NLC, if so advised, to apply for permission to do those things by early August.
In the event, NLC did apply to introduce expert evidence. That application was refused after a further CMC on 24 September. Essentially, NLC’s case is that the GC acted irrationally in relying on econometric evidence produced by Camelot: the expert evidence it sought to introduce argued that that the Camelot evidence was flawed in various respects, and that the GC should have appreciated that and investigated further. In its ruling, the CAT relied on what is now a well-settled line of authority in the Administrative Court of England and Wales to the effect that expert evidence is admissible in judicial review proceedings only in highly exceptional circumstances, in particular, where it is advanced in order to show that the authority’s decision was irrational, will be admissible only where there is a serious technical error which is not obvious to the court, which can be demonstrated by a person with technical expertise and which is incontrovertible, which goes to the heart of the matter and which would make a real difference to the outcome.[1] In other irrationality cases, new expert evidence is likely to be irrelevant to the question of irrationality as (by definition) it was not and could not have been before the decision maker at the time of their decision, and allowing it to be introduced is likely to lead to arguments which are essentially arguments on the merits as opposed to arguments going to the judicial review standard.
The principles that the CAT must apply when reviewing whether an authority has correctly decided that a payment does not confer an economic advantage to the recipient, for example because the commercial market operator (CMO) principle applies, are now well settled after Bulb[2], followed by the CAT in Weis[3]: the question is whether the authority was reasonably entitled to consider that at least some rational market operators would have entered into the transaction. Whether NLC has solid grounds for judicial review on that basis remains to be seen.
Two other issues are worth noting at this stage. The first, concerning the application of section 76 (pre-action disclosure), is unlikely in itself to prove decisive at the final hearing but lay behind some of the problems that had to be dealt with at the first CMC. The issue is that section 76 is expressed to apply only where the prospective appellant is contemplating judicial review of a subsidy decision: but where the authority takes the view that the decision is not a subsidy decision at all (because, for example, the CMO principle applies) it appears to be open to it to refuse disclosure. That decision could of course in theory be challenged by the prospective appellant in a judicial review (which would have to be to the Administrative Court): but given the strict time limits applicable to subsidy control appeals, the only realistic course open to the prospective appellant when faced with such a stance is likely to be to commence proceedings in the CAT on the basis of the limited information available to it. The result is likely to be delay as disclosure is given after the initial appeal is filed and (as is almost inevitable) pleadings are amended in the light of that disclosure. It is submitted that public authorities should, at least in cases where the prospective appellant has at least some sensible basis for believing that the decision at issue is a subsidy, behave as if section 76 applies and provide information about the reasons why it was considered that the measure was not a subsidy, for example the evidential and analytical basis on which the authority considered that the CMO principle applied. This is perhaps a matter that the CAT could consider including in a pre-action protocol, as an authority that refuses to supply any adequate information at the pre-action stage should, it is submitted, at least be at risk of an adverse costs order if proceedings are then brought which would not have been brought had adequate information been provided earlier.
The second issue is one of timing. Under rule 98A of the CAT Rules, the time for bringing an appeal in a subsidy control case is one month from the “transparency date” (or one month from the response to a section 76 request where that was made within one month of the transparency date). Where details of the subsidy are placed on the subsidy database, that is the transparency date: but of course where, as here, the authority takes the view that the measure is not a subsidy, that event never happens. In such a case, the backstop transparency date, in rule 98A(4)(b)(i), is the date on which the interested party knew or ought to have known of the making of the decision. In this case, it appears that there is an issue, which the CAT will have to resolve as a matter of fact, when NLC knew or ought to have known of the decision: the CAT’s approach to that question will have implications for public authorities as to how much publicity they need to give to a funding decision that they want to argue is not a subsidy in order to start time running for any appeal.
[1] R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649
[2] British Gas Trading and E.ON v Secretary of State for Energy Security and Net Zero at [97]
[3] Weis v Greater Manchester Combined Authority [2025] CAT 41.