No need to Pannick?

I haven’t had access to WordPress since the day I last posted, which has been particularly annoying because it happens to have coincided with a period which has been particularly full of interesting things. In an attempt to download the newest version of their software, I managed (through no fault of my own) to get locked out; and then was unable (entirely through my own incompetence) to get back in through the back end, because I didn’t know what any of my access codes were. So, no access, no writing. Divine intervention, perhaps: most of the stuff begging for comment, I’m restricted on until July.

But it was technological hitches, rather than gardening leave, that prevented me from writing last week when the HBLB invited people to comment on the conclusions of the two QCs whose opinions on the “are Betfair customers liable for Levy?” debate were published.

Asking for comment? Who from? The QC opinions are from Michael Fordham QC and Lord Pannick QC. Who else do we need to hear from who matters now?

It might sound a silly thing to say, but with the HBLB’s press release stating that it will now ‘consider the issues’, I’m really not sure that the significance of the publication of Pannick’s opinion has been understood. That, at least, would be the conclusion you’d reach judging by the response in the City (none) to what can do no other than put this consultation to bed in Betfair’s favour, and thereby remove what some perceived as a realistic risk that Betfair’s whole pricing model might be threatened in the UK. The idea that this is still an on-going question is profoundly misplaced. It is now safe to say without any doubt whatsoever that pedestrians on High Holborn will be saved the sight of me running past them in the buff.

OK, so officially it isn’t a decision. But it absolutely buries the BHA’s case; and, more importantly (since their case has been buried before), they have this time been killed by friendly fire. It is Lord Pannick on whom they have relied for so much of the last ten years – the very QC who has been their mainstay of support as they have fought this battle again and again. He is their own man. And he said that their case was groundless. Little wonder that there was no press release out of the BHA last week, nor yet any summary of the opinion from Olswang, whose repeated insistence (not least on this blog) that the argument was purely a matter of law means that they have now been hoisted by their own petard. Perhaps it is more surprising that there has been nothing, as yet, from Betfair.

If you don’t have the time to read the opinions in their entirety, let me quote the Herbert Smith summary: “customers of betting exchanges do not meet this test [which determines whether they should be paying levy] since they do not facilitate, arrange or bring about the bet or betting transaction; instead they rely on the betting exchange to provide that service”. Not that the summary does it justice, because in places, it gets a lot worse for the BHA: Pannick even says that if his interpretation is wrong, then there is no fair reason to single out customers of betting exchanges alone – a point which readers of this blog will know I have been making tirelessly (if perhaps tiresomely for some), with some former colleagues and advisors, for a very long time.

So the question that remains is “what happens next?”. It was predictable, I guess, that the BHA’s CEO should try to play it down, with a quote along the lines of, “well it doesn’t matter what the lawyers say: we all know this should happen”. But whether that were true or not (and clearly it’s not, or two different sides wouldn’t have resorted to lawyers eight years ago), it doesn’t help much when it comes to finding solutions. Perhaps, with these opinions, we can now at long last stop chasing shadows and start to try and find answers in a place where they might exist. What miserable and unhappy irony that, years after first being advised that they should embrace and work with Betfair while a hand of friendship was being extended by a modern UK-licensed company, Racing should now be forced to face up to its folly in the same week that the exchange should announce that is has left for Gibraltar. There’s no pleasure for anyone in the fact that Racing finds itself, all too predictably, being dragged back to a negotiating table only to find there’s no longer anyone obliged by virtue of jurisdiction to be on the other side of it. Racing’s leaders, you should hang your heads in shame.