A part of me is sorry it’s over: I could have seen if my ticket sales could better the Olympics’; could have requested my own traffic lane, claiming a major event was taking place; and – who knows? – might even have got lucky. But it’s not happening any more. Ladies of London, you can stand down: I will not be running naked down High Holborn after all. Now there’s a relief.
Regular readers of this blog will know that my promise to do so was dependent on a successful outcome for the Claimants of a Judicial Review (brought initially by William Hill and the BHA, but from which the BHA withdrew at the last minute) to determine whether the Levy Board had erred in law. The Levy Board had decided, after a 12 month consultation exercise, that exchange customers do not constitute leviable bookmakers under the 1963 Betting, Gaming and Lotteries Act. The case was expected to boil down to whether the definition in law of a bookmaker (described in section 55 of the 1963 Act as “someone in the business of receiving or negotiating bets”) captured customers of a betting operator; and, ideally for the Claimants, the customers of an exchange in isolation.
Judgment was handed down this morning, and, though it may have been slightly tortured in its thought process and may have focused on areas which neither side expected, it was categoric: the challenge was rejected; William Hill were refused permission to appeal; and William Hill have to pay 25% of Betfair’s costs. By my understanding, that means William Hill must be about to write Betfair a cheque in six figures, which I would suspect is something that their lawyers, Olswang, told them could never happen.
Many has been the time that I have thought this debate might finally be over, only to discover that it has a Rasputin-like ability to stagger back to life. Might it be that this time, finally, we can move on? Rejected; no appeal allowed; costs awarded against Claimant. End of story, no?
Apparently not. The Olswang press release on the subject, which runs – while we’re on the Russians – to a Tolstoyan 1233 words, concludes as follows:
This leaves the law in a very uncertain position. Not only is this distinction confusing, it also leaves unclear the position of the activities of traditional bookmakers on exchanges. On one view, these activities would now appear (again) to be subject to levy since traditional bookmakers are certainly carrying on a business of receiving bets. But this is contrary to the position adopted by the Levy Board and the challenge to that position has failed.
The only means of clarifying these uncertainties is if the case is appealed to the Court of Appeal.
Uncertain? Appeal? Hold on, let me get this right: the judge who handed down this decision, Stanley Burnton LJ, is a Court of Appeal judge. He has denied the Claimants the right of appeal, which means that they need to appeal the denial of a right of appeal to the Court of Appeal, one of whose number is the very person who said that they shouldn’t have it in the first place. Having then persuaded the Court of Appeal that they should have a right of appeal, they then have to appeal, and get a different judgment. That it sounds more like something from a Yes Prime Minister sketch than a statement of the true position should give a clue to the likelihood of its success.
Those who believe that there are people conducting substantially the same business on Betfair as would need a licence and be leviable if conducted not on Betfair will doubtless go to their graves believing that to be the case. As I said to one independent bookmaker who tweeted as such at me recently, my own view is that if people really believed that it was as simple as that, they would all just get on and do it. The fact that they don’t means that even they realise that there must be a difference.
But bugger my view: it really doesn’t matter any more who is right and who is wrong in this case. Every time a judgment has been passed by anyone that matters, it has been in Betfair’s favour. This is true not only without exception, but also irrespective of whatever torturous route those sitting in judgment have taken in examining the issue. This probably explains why everyone I speak to, in racing or bookmaking, now wants to move on from this tired debate and start to talk about the future. It’s time to agree to disagree; to park the issues we won’t see in the same light, and to work out what next. The BHA have finally been sensible enough under the leadership of Paul Bittar to accept that they are where they are, and make the best of that. I would be amazed – totally gobsmacked – were William Hill not to do the same.
If you didn’t follow this particular (hopefully final) court case, you will have missed how when Counsel for the Claimants gave her final summing up, she miraculously pulled out a new point in relation to the 2005 Gambling Act which (after all the debates that have been had) “had come to light overnight”. It would, she said, make it “game over”. You will also have missed her interrupting – as her killer argument was torn to shreds by Lord Pannick QC (for the Levy Board) reading from notes prepared some months earlier on her very point – and trying to claim that Pannick was straying into areas which he should not be allowed to deal with because he was only allowed to respond to the specific point she had raised. You will not have heard him cut her dead with “I am sorry that my friend wishes to prevent me from answering points she made…”. And you will not have seen her quickly sit down to allow him to finish his submission.
It might have been amusing at the time, but it, along with Olswang’s press release today, underlines that quite literally, the only people making any money out of continuing this debate are the lawyers. There are no rabbits left in hats, and no points left to make that have not been made. So go find yourself a new client, David. The Crusades are over, and the rest of us are keen to get on with our lives.