Procurement in a Nutshell: The New Lottery Company v Gambling Commission [2026] 891 (TCC)
15th May, 2026
Procurement in a Nutshell
15th May 2026
Procurement in a Nutshell: The New Lottery Company v Gambling Commission [2026] 891 (TCC)
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In a previous nutshell we explained that the judgement in The New Lottery Company v Gambling Commission [2026] had been handed down. This nutshell reflects on key takeaways from the judgement and their practical applications.
Background
The case comprised a challenge brought by Northern & Shell plc and The New National Lottery Company Limited following the award of the fourth National Lottery Licence to Allwyn in 2022. The claimants described the procurement as “the most financially significant process in UK history”.
The case related to both:
- The conduct of the procurement competition.
- Modifications made to one of the contract documents following the award
Damages of up to £1.3 billion were claimed, highlighting the scale and commercial importance of the licence.
Key takeaways from the judgement
- Courts give significant leeway in complicated procurement cases
In procurements which are highly technical, involve detailed judgment, and include policy considerations, the court will generally hesitate to step in unless there are clear legal errors or obvious unfairness.
- High evidence threshold for damages
Substantial damages claims require compelling evidence of breach and causation. The scale of loss alone is not enough to lower the threshold.
- Litigation risk does not automatically equal vulnerability
Large scale procurements which attract repeated challenges can withstand scrutiny as long as governance documentation and evaluation processes are robust.
- Subsequent-modifications post award can be defended
The judgement included an analysis on Regulation 43 CCR 2016 (substantial modifications).
Some of the key insights are:
- Sensible contract management is not penalised
If a modification does not distort competition or alter the original risk / reward bargain, Regulation 43(1)(e) may be available without needing to engage with other possible exemptions.
- The courts will not entertain counterfactual speculation
Contracting authorities are not required to defend modification against abstract assertions that bids might have looked different. Regulation 43(9)(b) requires evidence of what would have changed.
- Economic balance is assessed holistically
The Court endorsed a whole contract assessment rejecting attempts to isolate apparent benefits while ignoring countervailing disadvantages or increased controls.
- Context work in the authority’s favour
Where changes respond to genuine external disruption (litigation, suspension risk or transition delay) the reasons for the modification form part of the legal analysis.
- Built in flexibility is helpful
Clearly defined mechanisms for delay, partial implementation and cost recovery significantly strengthen a modification defence, particularly where they advertised to all bidders in the original procurement documents
- Unforeseeably is not a safety net
Regulation 43(1)(C) is narrow. What matters is whether the risk itself was foreseeable, not whether the authority could predict exactly how, when or by whom it would play out.
Practical points going forward
- Contracting authorities should continue to invest in transparent evaluation processes, clear audit trails and defensive decision making, particularly on major projects.
- Bidders should approach procurement challenges with a realistic view of the high bar set by the courts, particularly when seeking damages rather than procedural remedies.
- Early advice and risk assessment remain critical before commencing high value procurement litigation.
For further information please contact Melanie Pears or Tim Care in our Public Sector team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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