Well, it would have been a nice day for it. The sun is shining; people in Green Park were topless just now as I wandered past. It wouldn’t have taken much more for me: a short trip up the Piccadilly Line, out of the tube at Holborn, off with the cacks, and… A quick jog, starkers, down to Chancery Lane, back on the tube, and home. It so nearly happened.
Except, it didn’t. My long-ago pledge to run naked along High Holborn if Betfair lost its case (that its customers should not be liable for levy) – challenged again and again by William Hill, against all logic but at the behest of their lawyers at Olswang – was never going to lead to me stripping off. In the end, so resoundingly was the William Hill/Olswang case defeated that not only did they fail to get a single decision in their favour along the way (and they lost by a unanimous 3-nil in the Court of Appeal today), but they had the previous award of 25% of Betfair’s costs against them upheld, and they had 50% of Betfair’s costs for the latest round awarded against them as well. Betfair may have problems to address in other areas, but when it comes to comprehensive victories, they could still teach Bayern Munich a thing or two.
When you’ve argued something for as long as I’ve been arguing this one – either officially or through the channel of this blog – you probably shouldn’t crow when judgment comes down on your side . But I have to say in this instance that the statement put out by Olswang following the confirmation that for everyone other than them, this case was a colossal waste of money (north of £2m, I would guess), is comic in the Comical Ali sense: for all the world, you would think that they had not driven this process from start to finish, so straight is the way they have reported the fact that every argument they advanced over a ten-year period of collecting fees has been blown out of the water.
“None of the parties (or the Court),” they report, “was sure what was meant by “negotiating” even in the traditional bookmaker context so that the argument focused on the meaning and application of “receiving” a bet. The Levy Board and Betfair maintained that it was the exchange itself which received the bet and not the parties to the bet; William Hill, following the judgment of the High Court, argued that both backer and layer were receiving the bet; with the effect that the key determining factor as to whether or not an exchange user is a “bookmaker” is whether or not that user is carrying on a business.”
I suspect they will now argue forevermore that this was a case of ‘everyone knows it is happening but we just can’t make it work in the law’, given that the Olswang summary goes on to report that the Court of Appeal ruled “without providing much in the way of detailed analysis” – as if that somehow means that their arguments were never addressed – and then (most hilariously of all) finishes with, “Moreover, the end result is that the Levy Board has succeeded in limiting the class of persons from whom it can collect Levy.” It seems to me that this is rather like saying of someone who declined to rob a bank at gunpoint because there was no legal basis on which he was allowed to do so that, “moreover, the individual has succeeded in limiting the ways in which he can add to his personal wealth.” The Levy Board didn’t limit anything: it just recognised what it could and couldn’t do, based on the legal position of a set of people whom Olswang wanted desperately to have categorised as something other than what they are.
No matter: the one thing in their statement we can agree with, with a glad heart, is that “this issue has now been put to bed” – as it should have been years ago. The only shame as the Fat Lady belts out is that there is almost no-one left at Betfair who will appreciate quite how sweet is her tune. But be under no doubt what a massive, massive victory this is for those who have fought it valiantly since it was first raised in 2002. All credit and many congratulations to Betfair’s legal director, Martin Cruddace, and his trusty sidekick David O’Reilly (who continued to act on this for the company even after he had left, on a freelance basis); as well as to their redoubtable QC Simon Mehigan and all those involved, for a job tenaciously stuck to and fabulously well done. It really is a wonderful and well-deserved piece of news, and I couldn’t be happier for any of them.
In his response to the verdict, Martin Cruddace underlined how ‘uniquely welcoming’ Betfair was to winning customers.
What a pity that so few in the upper echelons of the company seem to share his view! Many skill-based or systematically winning clients are hit with the premium charge, which in effect and maybe in principle is not too far away from the levy that Betfair’s rivals wanted to exact on them. And new customers of Betfair are no longer directed to the exchange, where they are in principle encouraged to provide liquidity and to try to win, but to a sportsbook, where (like every other UK bookmaker) limits apply and winners will be severely limited.