Hayley Stallard on Camelot's unsuccessful case against 49's. Hayley Stallard is head of the advertising and marketing law group at Field Fisher Waterhouse.

In the case Camelot Group v William Hill London and ors (18 August 1997), the Deputy Chief Magistrate at Bow Street decided that the predominant features of the 49's game of chance promoted by bookmakers were those of betting and not of a lottery.

However, his attempt to distinguish between the overlapping categories of betting, gaming and lotteries is unconvincing and has failed to clarify the law in this area.

Like the National Lottery, 49's is a game of chance, the only material difference being that punters are given fixed odds depending on how many numbers they guess correctly. It is this aspect of the game which seems to have formed the main basis of the Magistrate's decision. But is the 49's game really a fundamentally different activity from gambling on the National Lottery?

There is no comprehensive definition of a "bet". It has been treated as a form of wagering, the essence of which is that there are two parties involved and, on the determination of an event, each must either win or lose.

According to the magistrate, the promoter of a lottery cannot win or lose. However, depending on the numbers drawn in a particular week, this may affect the size of the prize pool and sales revenue in a subsequent week, thereby affecting the actual amount received by Camelot.

The magistrate also attempted to draw a distinction between the "winnings" obtained in the 49's game, and a "prize" in a lottery. He was persuaded by the argument raised by the bookmakers that in the 49's game "there is no distribution of anything that could properly be termed prizes" – a curious analysis when the dictionary definition of a prize includes "something given to the winner of any game of chance, lottery".

Camelot has encouraged competition to the National Lottery although the restrictions placed on other lottery operators do not allow a level playing field.

While Camelot's attack on the 49's game may have some legal justification, if it wins on appeal this will stop the industry's latest attempt to counter the effects of the National Lottery on their businesses.