As mentioned in our previous article on the Competition Appeal Tribunal's emerging role in subsidy control, The New Lottery Company Ltd (NLC) and Others v The Gambling Commission (the Commission) was a case we anticipated might provide useful further insight about the regime under the Subsidy Control Act 2022 (the Act).

Background

To recap, this involved a challenge to a c. £70 million award by the Commission from the National Lottery Distribution Fund (NLDF) to Camelot for marketing purposes. NLC argued that the funds conferred an economic advantage, improving Camelot’s competitive position without proper subsidy analysis. Funds in the NLDF, prescribed by law to be used for 'good causes,' were allegedly awarded in a manner that distorted competition. 

When we wrote last year, we anticipated that the judgment might answer a question left unanswered by earlier cases - i.e.: what happens when an amount meeting the relevant threshold is awarded without a subsidy assessment or referral, and is later deemed to be a subsidy? 

This question continues to go unanswered.

What can we learn from this?

The CAT delivered its substantive judgment on 26 February 2026, refusing the application and the relief sought. It continued the (as yet) unbroken sequence started by the first cases under the CAT’s oversight of the regime, determining that the alleged subsidy was not one at all. 

Nonetheless, when this judgment is considered along with the ruling on expert evidence on 24 September 2025 and the more recent ruling on costs of 26 March 2026, three points particularly stand out:

1. The CAT will set a high hurdle for Applicants to rely on expert evidence.

Camelot supported its NLDF bid with econometric analysis, and the Commission obtained its own economic advice highlighting flaws in that analysis. In the course of the proceedings, NLC applied to rely on an 80‑page expert report identifying further problems with Camelot’s work, arguing the Commission’s reliance on it was irrational.

The CAT refused to admit this report. It held that the issue is what the Commission knew or should have known about the analysis at the time of its decision, not what NLC’s expert now says about that analysis with hindsight. In light of the judicial review standard for these appeals, any challenge on the basis of irrationality must be based on the material actually before the Commission at the relevant time.

2. Applicants should expect the CAT to take a robust approach to whether proceedings have brought proceedings promptly

While the Act provides a clear limitation period, applying it in practice is difficult where the public authority has not treated the relevant decision as a subsidy and has therefore not made an entry on the subsidy database. The CAT has tried to bring some much-needed clarity to this situation.

It said proceedings:

• should normally be issued within one month of the date on which the applicant was or should have been aware of the decision.
• An exception is where, within that period, a request is made for the provision of information. In those circumstances, the proceedings should normally be issued within one month of the information being provided.
• Applicants are not entitled to wait on the basis that the decision had not been recorded as a subsidy on the subsidy database. 

Had the question arisen in practice in the case, the CAT indicated it would have been inclined to refuse relief.

3. An unsuccessful Applicant may have to pay an intervenor’s costs in particular circumstances

Unsurprisingly, given that the relief sought by the NLC included a repayment order (a novel feature of the regime), Camelot had taken an active role in the proceedings in support of the Commission and had sought an order for its costs on the handing down of the substantive judgment. 

The CAT considered previous decision cases which provided a starting point that an Applicant is not normally liable for an Intervenor’s costs. 

However, it said the proceedings “were, in substance, not merely a challenge to the [Commission’s] Decision, but also a fundamental attack on the position of the Interveners specifically under that Decision, with potentially very significant financial consequences.” It further went on to say its conclusion “does not mean that in every subsidy control challenge in the Tribunal, the recipient of the alleged subsidy will have a specific interest justifying recovery of the costs of intervention; rather, that will be a matter to assess in all the circumstances of the case.”

The CAT criticised the manner in which the NLC had pursued its case, concluding that this, as well as the fact that Camelot was the real target of the application, justified the award of costs.