HT-2022-000132 - [2025] EWHC 1058 (TCC)

This line concerns one document entitled “4NLC Risk and Contingency – Legal Challenge and End of Third Licence” dated 5 November 2021. The document is a presentation marked “Confidential” and “commercially sensitive” but not privileged.

The Preface addresses a Programme the goal of which is to achieve full implementation of the 4^th Licence. But it considers contingencies if that is not achievable. In respect of partial implementation, it is noted that [REDACTED].

The GC’s position is that the document is plainly privileged because it records and reflects legal advice given to the Commission. The GC says that the presentation was for a workshop between the GC and DCMS. Information was shared with DMCS on the basis of a limited waiver of privilege only.

Mr Bryant says that the fact that the information was shared with a third party would, at the least, affect a reviewer’s consideration of privilege. The reviewer noted that the document was marked confidential but not privileged and did not consider it privileged. It was escalated for review because of relevance. Mr Bryant considered it possible that it had been disclosed by mistake but thought it more plausible that it had been disclosed intentionally because (i) it was part of a pattern of disclosure of hundreds of documents and (ii) it was relevant to issue D35. The reference to the pattern of disclosure accords with Ms Dickey’s evidence at paragraph 9.21(b) of her 8^th statement where she says:

“The Commission estimates that it has disclosed several thousand non-privileged or part-privileged documents in the First Tranche that appear to be relevant to issue D35. These unprivileged documents largely relate to the high-level question of whether litigation about the Competition was expected and/or the commercial impact that any such litigation might have on the transition to 4NL, but which do not reveal or contain the substance of any privileged communication. By way of example only, such disclosure involved: internal discussion of programme risks and consequences of such risks, that did not reflect the legal advice, and internal discussion of application clarification questions.”

The nature of the disclosure issue means that a reviewer would expect to see documents that referred to the risk of legal challenge. Nonetheless, it does not follow that there is likely to have been some wholesale waiver of privilege. The key issue that arises is, as I put it in the course of the hearing, where the dividing line is to be drawn and where the reasonable solicitor would think that dividing line was drawn so as to form a proper view as to whether a privileged document had been disclosed as a result of an obvious error.

Mr Hossain submitted that in the present case it remains difficult to know where the GC intended to draw the line. I agree that, even with Ms Dickey’s explanation after the fact, it is difficult to discern where that line was to be drawn. Mr Hossain suggested that a possibility, that would be largely consistent with the disclosure given and Ms Dickey’s evidence, would be between commercial documents in which commercial people discussed the likelihood of litigation (even if that derived from legal advice) and documents authored by lawyers or perhaps those that directly cited that advice. He drew the court’s attention to a document authored by Mr Tanner and entitled “4NLC Risk and Contingency During Competition and Implementation” and dated 14 May 2021. No privilege is claimed in respect of the document. This document included a section on how a legal challenge may be brought, what would happen, the approach the court would take to an application to lift the automatic suspension and the possible impact on the timeline. I observe that some of that might be thought to reflect legal advice but equally could be said to reflect common knowledge and it illustrates the difficulty with the dividing line.

With that background, it seems to me that the presentation at line 1 is, in part, concerned with the risk of litigation although there is no specific consideration of risk of legal challenge by subcontractors. It is in the nature of a high level commercial review. It does not disclose the content of any legal advice. I do not consider that it should have been obvious to a reasonable solicitor that this high level presentation had been disclosed in error and I give permission to use this document.

This document group comprises 6 versions of a flowchart entitled “Chart Competition, Implementation and Challenge Flowchart”. The versions range in date from 18 June to 12 July 2021.

The sample page of the flowchart to which the court was taken indicates the actions or events that might lead to a risk of legal challenge. There is reference to “legal reviews commissioned” although it is unclear whether those are reviews that have been commissioned or reviews that would be commissioned if the risk of legal challenge crystallised. There is express reference to counsel having been asked to consider [REDACTED] but no further indication of that advice. Similarly the document contains a box headed “Competition, Implementation and Challenge Flowchart” which says: [REDACTED].

Subsequent pages include similar references to seeking advice. There is reference to a litigation strategy paper but it is not apparent whether this is a commercial or legal document and whether it contained any legal advice.

The flowcharts are again at a high level. They disclose that legal advice has been sought on one particular topic and the fact of seeking advice may be relevant to the disclosure issue. The flowchart does not disclose the content of any legal advice. It discloses topics on which counsel’s advice is being or will be sought but it does not disclose the content of any such advice. In many other contexts, I would take the view that the repeated reference to legal advice which has been or may be sought would lead to the conclusion that it ought to have been obvious that the document had been disclosed in error but, in the context I have set out above, I take a different view. The document is plainly relevant to the likelihood of a legal challenge and the references to topics on which advice has been or will be sought are relevant to that likelihood, indicating the type and number of issues that might give rise to a challenge. Since the flowcharts do not then contain any legal advice given, it would have been reasonable to conclude that they had been disclosed deliberately as relevant to the disclosure issues. I give permission to rely on this group of documents.

This document group includes 2 internal e-mail chains exchanged within the GC with the subject “HMT Contingent Liability Checklist”. Given the view I have formed about these e-mail chains I will summarise their content at a high level only. The e-mail exchange includes discussion of legal exposure and estimates for defending a legal challenge and includes an e-mail from Mr Tanner to Nadine Pemberton setting out his proposed response to an e-mail from DCMS. Nadine Pemberton was General Counsel for the GC.

HL say that the content is obviously privileged and the fact that the chain started with an email from DMCS is irrelevant. Mr Bryant says that the reviewer did not consider it privileged because it was a chain between John Tanner and DCMS. It was escalated on the basis of relevance and Mr Bryant and the core team concluded it had been intentionally disclosed.

The emails, firstly, do not, as such, consider the likelihood of legal challenge but go significantly beyond that and into the realm of costs of proceedings and likely level of damages if challenging party was successful. That is enough to raise a question over whether the exchange was even relevant to issue D35. Ms Hannaford expressed incredulity that, whatever the position with other members of the legal team, BCLP’s reviewers did not know, or should not have been expected to know, that Ms Pemberton was General Counsel and she pointed to 80 versions of presentations that expressly Ms Pemberton’s role. It does seem to me that as General Counsel Ms Pemberton falls into a different category from other members of the legal team but, even if that were not the case, the nature of the email from Mr Tanner to Ms Pemberton asking, in effect, for her input into a proposed response dealing with costs and quantum should have been enough to cause a reviewer to inquire as to who Ms Pemberton was. Her input was legal advice.

I do not give permission to use this group of documents.

This document group contains multiple drafts of a document entitled “Contingent Liability Checklist”. The document addresses similar issues to those in the emails at line 3 but in greater detail. It is framed in terms of questions on contingent liability and extensive answers to those questions.

HL say that it is authored by Nadine Pemberton and obviously privileged legal advice. The pdf version does not state the author but HL say that 3 versions of this document were disclosed in native format which showed the author. Mr Bryant can only identify two such versions but says, in any event, that it was not obvious either that she was the author or a lawyer.

BCLP say that three versions of the document were disclosed with no redactions and no privilege concerns were raised by the reviewer. Other documents in this group were disclosed with inconsistent redactions and reviewed by different people. One privilege concern was raised. Mr Bryant concluded that whilst a mistake was possible, other reasons for deliberate disclosure were more likely including relevance to issue D35 and that the material appeared to be shared with DCMS.

I take a similar view of this document to the emails in line 3. The document goes well beyond the likelihood of a legal challenge and that, in itself, ought to have raised a question mark as to the nature of the document and its disclosure. That should have led to further consideration. I recognise that there were difficulties in tracking different versions of documents because of the manner in which they were disclosed but it is clear from the fact that one person reviewed three versions that there were multiple versions of the documents. A reasonable line of inquiry would have revealed both the author and the inconsistent redactions and it ought to have been obvious that the unredacted versions had been disclosed in error. I do not give permission to rely on this document.

This document group is 8 versions of a Power Point presentation dated 3 August 2021 and entitled “Legal Risks Summary”. It is marked for distribution internally and to DCMS and marked as legally privileged. The Introduction describes the following slides as highlighting the potential legal risks facing the Commission that may give rise to a legal challenge. The text states that each risk had been summarised using “the following sources” which include counsel’s advice and 4NLC’s legal team.

Mr Bryant’s evidence is that the reviewers of these documents concentrated on relevance and did not raise any privilege concerns. Mr Bryant similarly thought that there might have been a mistake but it was more likely that the document had been disclosed deliberately.

I place no weight on either of those views. Whatever the relevance to the disclosure issues, this is, unlike many others, a document marked as privileged which says on its face that it is derived from legal advice. It ought to have been obvious that it was disclosed in error. The fact that it was intended for sharing with DCMS is irrelevant – the marking and content are entirely indicative of a limited waiver.

This group consists of two versions of a document entitled “Mitigating Legal Challenge” dated 9 June 2021. There is nothing on the face of the document to identify the author.

The document states that the Commission regularly reviews the measures that it has in place to mitigate the risk of successful legal challenge and that it is satisfied, following a recent review, that it has the necessary controls in place.

The document then states: [REDACTED]

What follows is a general summary of [REDACTED]. It is recorded that these are questions the Commission has asked counsel to advise on.

In my view this is similar to the high level consideration of types of challenge and process considered above. Contrary to HL’s position that this is clearly privileged legal advice, it is not at all obvious to me to me that any of this is legal advice because it is expressed in general descriptive terms and that sort of discussion also appears elsewhere in documents over which privilege is not asserted. The document identifies issues on which legal advice has been sought but says nothing about advice received. I give permission to the claimants to rely on this document.

This document is a paper called “Gambling Commission Response to DCMS Comments on 4NLC Contingency Papers”. It sets out the GC’s response to queries raised by DCMS. The document is marked as commercially sensitive and legally privileged.

HL now say that the document was authored by Mr Cochran. BCLP say that it was not initially disclosed with metadata and, in any event, it was not known that Mr Cochran was a lawyer. There is nothing on the face of the document to identify him as the author or a lawyer. However, the marking of the document as privileged was obviously indicative of legal advice and, without descending into the detail set out in the Annexures, versions of the document were disclosed partially redacted which, in the context of the marking of the document as “legally privileged”, would imply that the parts that the GC did not intend to disclose had been redacted.

Again I recognise the difficulties presented to the reviewers by the inconsistent redactions but, in my judgment, the appropriate way to deal with this document, is to refuse permission to rely on the wholly unredacted versions. The claimants can continue to rely on the redacted versions (with their inconsistencies). It ought not to have been obvious to a reviewer that the document was disclosed by mistake where it was relevant to a disclosure issue and the disclosing party could reasonably be assumed to have redacted such parts as they did not wish to be disclosed.

This is the Client Reviewed Document: a letter from the Andrew Rhodes, Chief Executive of the GC to Polly Payne and Ruth Hannant at DCMS. It is dated 30 October 2023. There is a suggestion in the Annexure that this is disclosure relevant to D35 but it falls outside the date range. Rather the claimants’ contention is now that it is relevant to D33 and D34.

Although the letter passes between lay people, not lawyers, it is headed “Litigation Update”. It includes the following: [REDACTED].

The letter then refers to a copy of the advice included with this letter and the recipients’ attention is drawn to the conclusions from paragraph 10 onwards in that advice. The letter then goes on to address the actions of the current claimants and to say that the Commission has been considering its litigation strategy in respect of the claimants (and that an advice note is attached). There is again consideration of the likely costs of defending a claim.

Although this may fall within internal correspondence regarding the Challenged Modifications (and thus disclosure issues D33 and D34), it is plainly recording privileged advice. In contrast to D35, there is nothing in those disclosure issues that might indicate that any privileged advice would be deliberately disclosed. As the GC submitted, where there is no good reason for the disclosing party to have waived privilege, it is more likely that the mistake will be obvious.

Mr Bryant says, nonetheless that it was not obvious, and ought not to have been obvious, that the document was disclosed in error. He makes two main points. Firstly, he relies on the fact that the annexes to the letter (including counsel’s advice) were not disclosed so that it appeared that a deliberate decision had been taken to disclose what appeared in the body of the letter. That does not follow and, if the advice has been withheld, it makes it the more likely that failing to delete the reference in the letter was a mistake, and, indeed, that disclosing a letter that was premised on that advice was a mistake. Secondly, and more generally, he relies on the waiver of privilege because the content of the letter was shared with DCMS. Mr Hossain submitted that this was the only document where the sole issue was whether sharing with DCMS amounted to a waiver of privilege.

It seems to me quite clear, and ought to have been obvious, that there was a limited waiver. If Mr Bryant’s position were right, privilege in counsel’s advice would also have been waived and it is not suggested that it was. It ought to have been obvious that a document disclosing counsel’s advice had been disclosed in error and I do not give permission to the claimants to rely on this document.

This document group is a set of 43 draft presentation slides entitled “SRO & Programme Director Presentation”, the SRO being the Senior Responsible Officer.

HL accept that much of this document is not privileged but privilege is claimed over slide 12. This slide has three columns. The first is a report on the IGT litigation and the decision of the court on a preliminary issue that IGT did not have standing. It contains no legal advice. The second column addresses [REDACTED]. It describes [REDACTED].

I do not see how this document is strictly relevant to issue D35 since it is concerned with the risk of a legal challenge based on changes to the Enabling Agreement and the Licence and not on the likelihood of litigation which the GC says was unforeseeable and a legitimate factor in the making of those changes. That might be an indicator that the document, or at least that slide, had been mistakenly disclosed. There are two reasons to reach the contrary conclusion. Firstly, the middle column is largely generic and could as easily be commercial commentary as legal advice. It is not, as HL say in the Annexure, clearly a recitation of legal advice that has been given to the Commission and is being summarised for senior management. Secondly, as Mr Bryant points out there are multiple versions of this document in which the slide is not redacted and only one in which it is which points to a lack of intention to assert privilege in that slide.

Leaving to one side my doubt as to the relevance of this document to the issues in the case, I do not consider that it was or should have been obvious that it had been disclosed by mistake and the claimants have permission to rely on it.

This was Mr Hossain’s last category of documents. He submitted that the issue applied to lines 1 to 5, 8 and 21. I have dealt with these, other than line 21, above and say nothing further.

This is the only document which potentially raises an issue arising from the sharing of material over which privilege is claimed with Rothschild, as advisers to the GC. The dispute in relation to this document is now very limited and, on the claimants’ case, the issue is now rather one of whether the material appears to be privileged or not.

The document is an email sent to various people within the GC and one person at Rothschild. The e-mail details a meeting held on 22 April 2020 with the heading “Initial appraisal of data disclosed to Camelot L4 bid team by CUKL and the commercial advantage it could represent”. The discussion appears to have been about the extent of data disclosed to Camelot's bid team via a virtual data room and what advantage the Camelot bid team would have gained as a result. The GC now seeks to apply some redactions to the document. The claimants do not take issue with those redactions other than one which redacts the words [REDACTED].

It is plain on the face of the email that the meeting was attended by Charles Brasted of Hogan Lovells and Javan Herberg KC. The paragraph immediately preceding the one in issue contained advice of Mr Herberg. The next paragraph contained the advice of Mr Brasted. The words in issue are the concluding sentence.

It seems to me obvious that this document contains legally privileged advice and I cannot see how the last sentence can be divorced from what immediately precedes it. If the point is still relied on, whether or not this was shared with Rothschild is not material as there can have been no intention to waive privilege by doing so. The claimants do not have permission to rely on this document without the redactions which HL now seek to make.

As is the norm in procurement litigation, there is a confidentiality ring in place. A draft judgment was provided to the parties on 3 April 2025. The terms of the embargo initially provided that it was supplied only to counsel and solicitors who were within tier 1 of the confidentiality ring. The purpose of this embargo was to protect both confidentiality where applicable and the privilege in the documents which I had not permitted the claimants to use. Following email exchanges with counsel, I directed (i) that the draft judgment could also be disclosed to the defendant’s client representatives (within tier 1) since the privilege in issue was that of the defendant and (ii) that the documents which I had permitted the claimants to use (which I referred to as the “Use Permitted Documents”) could be provided to the claimants’ client representatives (within tier 1). There was a time pressure on the consideration of these documents because of the dates directed for the claimants’ amendments and the statutory time limit.

I also asked counsel to seek to agree the extent of redactions for the purposes of an open judgment, again to preserve confidentiality and privilege. Patently, where I had not permitted the claimants to use a document in respect of which the defendant claimed privilege, it would be wrong for the content of that document to be disclosed in an open judgment but some reference to the document would be necessary for intelligibility.

It is important to record that, at the hearing on 7 March 2025, no issues were raised by the parties as to whether any document in respect of which the defendant claimed privilege was not in fact privileged. The focus of the submissions was on the obviousness of privilege. In light of the terms of the draft judgment, a dispute then arose firstly as to whether I had decided that some documents were not, in fact, privileged. That dispute was relevant to the scope of redactions because the defendant now argued that, even where the claimants were permitted to use a document, that did not amount to a loss or waiver of privilege for all purposes. That was not an argument that had so much as been mentioned at the hearing. Both of these matters seemed to me potentially to call for a further hearing and further decision.

In the event, the parties agreed the scope of the redactions and that is reflected in the open version of this judgment. For the avoidance of doubt, (i) although it may follow from my observations in respect of some documents, unless expressly stated in this judgment I have made no decisions as to whether any particular document is or is not privileged, and (ii) the fact of the redaction in the open version of this judgment is not to be taken as a decision on the issue of loss or waiver of privilege in this case or more generally.