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Richard Desmond can use a cache of documents mistakenly handed over to his lawyers by the UK gambling regulator, which the media tycoon is suing over the National Lottery contract, the High Court has ruled.
Desmond’s Northern & Shell has been granted permission to rely in court on internal presentations, emails, draft reports and other materials that were disclosed “inadvertently” by the UK Gambling Commission’s solicitors at law firm Hogan Lovells.
Sa’ad Hossain KC, representing Northern & Shell, said he believed the scale of the apparent error by Hogan Lovells and the regulator was “unprecedented” and akin to a “bombshell”.
The documents were accidentally provided to Northern & Shell, which bid unsuccessfully for the 10-year lottery contract and is suing the Gambling Commission over what the company claims was an unfair licensing process.
The prestigious contract to run the state-franchised competition was won in 2022 by Allwyn, an international operator whose ultimate beneficial owner is Czech billionaire Karel Komárek.
Northern & Shell wants the High Court to declare that the Gambling Commission’s contract award process was unlawful, and is seeking damages in the case.
As part of a massive disclosure exercise ahead of a trial later this year, Hogan Lovells sent some materials that the commission did not intend to be released to Bryan Cave Leighton Paisner, the law firm representing Northern & Shell.
More than 4,300 documents — of more than 3mn that were collected — were disclosed inadvertently to Northern & Shell’s lawyers. In a letter to BCLP, Hogan Lovells said it had “become apparent that there have been certain errors in our client’s disclosure process that has led to the inadvertent disclosure of privileged material”.
It was not until January this year that “the apparent scale of the errors in disclosure became clear”, according to a court judgment on Tuesday.
The Gambling Commission agreed that many of the documents could be used in the litigation, but it objected to a smaller set of 128 documents.
The disputed documents covered issues including the evaluation of competing bids, and financial and strategic planning at the Gambling Commission for potential litigation. They included internal meeting notes, briefing papers and communications with the UK government Department for Culture, Media and Sport.
The legal test of whether Northern & Shell could use the documents in the litigation was whether they had been disclosed because of an “obvious mistake”.
More specifically, the judge had to assess whether it would have been obvious to a “reasonable solicitor” that the documents had been disclosed in error.
In a ruling on Tuesday, Mrs Justice Jefford refused permission for documents in several categories to be used in litigation, such as if they had clearly been marked as privileged, or where it should have been obvious that the documents contained privileged legal advice.
However, she gave permission for Northern & Shell to rely in court on several of the documents. These included documents that did “not disclose the content of any legal advice”, or where it was difficult to establish that a lawyer had written the content.
In written arguments for a preliminary hearing in March, Hossain, for Northern & Shell, said that as far as the claimant was aware, “the scale of . . . [the] purported error is unprecedented”.
The letter informing Northern & Shell’s lawyers that thousands of apparently inadvertently disclosed documents had been identified “can fairly be described as . . .[being] akin to a ‘bombshell’ communication”.
Hogan Lovells declined to comment.
The Gambling Commission said it had “nothing further to add to representations made during” a hearing about the disclosure.
