Embargoes On Judgements Need To Be Taken Seriously
At the end of a trial, a judge will usually reserve judgment and provide this in written form some time later.
What is also common is for a draft of this judgment to be circulated to legal representatives in advance of the formal handing down of the written judgment.
The idea is to allow parties to pick up on typos and any substantive errors as well prepare in advance for consequential matters. It is not an opportunity to re-argue the case again in correspondence.
In Practice Direction 40E of the Civil Procedure Rules, its clearly states that
A copy of the draft judgment may be supplied, in confidence, to the parties provided that –
(a) neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and
(b) no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down.
Further, under section 2.8
Any breach of the obligations or restrictions under paragraph 2.4 or failure to take all reasonable steps under paragraph 2.6 may be treated as contempt of court.
An embargo on a draft judgment is no light matter given the potential consequences, and the courts have been ready to make examples of those who flaunt this rule recently.
R (Counsel General for Wales v BEIS) (2022)
This involved a draft judgment from the Court of Appeal which was provided to the marketing team in chambers of one of the barrister’s involved. A press release was prepared and circulated on their website and social media channels in error believing the judgment had been handed down a day earlier. Although the judge was informed and the press release removed once the mistake was discovered, written explanations, statements and personal attendance at a hearing were called for by the judge.
The court made clear:
- the provisions of CPR PD40E are mandatory
- It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that they are complied with.
- drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo
- in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E.
Match Group LLC v Muzmatch Limited (2022)
A press release had been sent out by the Defendant before a judgment had been handed down, despite robust steps taken by the Defendant’s solicitors to warn him about the obligations of confidentiality surrounding the embargoed judgment.
The Defendant had contacted journalists promising to provide them with the embargoed judgment if they also agreed to abide by the embargo.
Contempt proceedings were avoided as the Claimant did not wish to push for it and reluctantly the court were prepared to accept the Defendant’s apology that it was a genuine mistake but warned that “courts are likely to look with a very critical eye at any case where a party’s wish to manage the publicity surrounding litigation has led that party to breach the embargo.”
The Public Institution for Social Security v Banque Pictet & Cie SA (2022)
Again this was a draft judgment from the Court of Appeal where the source of the leak was never actually identified. Instead a mistake made by one of the lawyers sending a Whatsapp message to other unintended and then intended lawyers about the outcome. Whilst this was rectified promptly, nonetheless it was held to be a breach of the embargo.
The court stressed in this case that
– They are orders of the court which prohibit communication for any purpose other than the legitimate exercises
– Informing other lawyers within the same organisation who are not involved in the conduct of the litigation and whose input is not necessary for the purpose of carrying out these legitimate exercises will be a breach of the court’s order
– The need for utmost care in communicating the content or substance of a draft judgment in the digital age. The use of electronic messaging requires greater, not lesser, attention to detail
– Any breach of an embargo must be drawn to the court’s attention as soon as it is identified
The Duke of Sussex v The Secretary of State for the Home Dept (2022)
In this highly publicised case, not only was the draft judgment provided to a partner who was not a lawyer but there was a delay in reporting the breach to the court.
Points to Take Away
- Draft judgments should only be circulated to those who strictly need to know in order to exercise legitimate limited purposes under PD CPR 40E (corrections, consequential matters and preparing for publication)
- Draft judgments should not be circulated internally to anyone else unrelated to the case for any other purpose (internal communications or marketing/press releases)
- If you are not sure, do not circulate otherwise you should obtain the court’s consent in advance
- Confidentiality of the draft judgment should be properly stressed upon each recipient
- If a potential breach comes to light this needs to be investigated, remedial steps taken and promptly reported to the court and opponent as soon as possible