SPOILER ALERT! Embargoed judgments and how to avoid a contempt of Court
Legal Development 01 April 2022 01 April 2022
UK & Europe
The recent mainstream media coverage of Mr Justice Swift’s rebuke of The Duke of Sussex’s QC (when handing down his judgment in the Duke’s application for judicial review regarding his security arrangements) has again shone a light on the importance of lawyers and their clients understanding and paying close attention to the strict rules relating to the use and distribution of draft judgments. This follows three other recent cases where similar issues arose. This Briefing Note sets out the rules which apply to draft judgments, the recent cases, and practical tips on how to avoid clients and lawyers facing contempt proceedings.
The purpose of circulating judgments in draft
As concisely set out by Mr Justice Meade in Optis Cellular Technology Inc v Apple Retail UK Limited (Patents Court, 5 October 2021) which is further addressed below, the purpose of judgments being circulated in draft is twofold:
“From the Court’s point of view, it enables the correction of typos and it also enables corrections of more substantive errors”
“For the parties, there are a number of benefits, a major one of which is to prepare to deal with the consequences of the judgment when it is made public, because steps in the litigation have to be taken, permission to appeal has to be considered, and the presentation by the winning and losing litigants of the judgment to their investors and other stakeholders has to be considered”
The practice of circulating draft judgments is therefore reasonably common, particularly in large-scale litigation where, for example, parties may have to make stock market announcements promptly after a judgment is handed down.
Draft judgments are not circulated so that parties can argue that the overall decision is incorrect, and nor are they circulated so that law firms can issue immediate press releases trumpeting their success.
The Practice Direction to CPR Part 40 (PD 40E) sets out the rules which apply to draft judgments:
2.4 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
2.6 If a party to whom a copy of the draft judgment is supplied under paragraph 2.4 is a partnership, company, government department, local authority or other organisation of a similar nature, additional copies may be distributed in confidence within the organisation, provided that all reasonable steps are taken to preserve its confidential nature and the requirements of paragraph 2.4 are adhered to.
2.7 If the parties or their legal representatives are in any doubt about the persons to whom copies of the draft judgment may be distributed they should enquire of the judge or Presiding Judge.
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.
In accordance with the Practice Direction, it is common practice for draft judgments to carry a warning, including that:
“This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft judgment before judgment has been formally pronounced. A breach of these obligations may be treated as contempt of court.”
Accordingly, the Practice Direction and the standard form “health warning” make it clear that:
- the draft is confidential;
- neither the draft nor its substance should be disclosed to anyone other than the parties and their lawyers; and
- breach of the embargo may be a contempt of Court.
The Recent Cases
The first of the four recent cases which addressed issues of embargoed judgments was Optis Cellular Technology Inc v Apple Retail UK Limited.
In an unfortunate series of events, a misunderstanding occurred whereby a third-party learned of the date of the handing down of the judgment (which had been circulated to the parties in draft in the usual way) and contacted a representative of one of the parties offering congratulations. He had not, in fact, learned of the outcome of the trial, but the impression given was that he had. There followed a conversation during which the outcome of the trial may mistakenly have been communicated on the misunderstanding that the third party already knew it. Further compounding the mistake, it was implied that the outcome had been “leaked” by the Judge’s office which, for understandable reasons, the Judge took exception to; not least because in fact there had not been any leak at all, but moreover because the only “office” which the Judge had was his clerk, whose reputation was brought into question without any basis whatsoever.
The Judge, Mr Justice Meade, required an extensive investigation to be carried out by all parties in trying to source the “leak”, which ultimately concluded that there was no leak. The Judge elected to provide a detailed decision setting out the issue for the assistance of parties who face the same issues in future.
In terms of guidance of more general application, Mr Justice Meade noted in relation to investigations of potential breaches of an embargo that:
“The point to learn is that in a situation such as this what must be done is to immediately put the greatest possible focus into finding out every detail of the relevant facts and communicating anything that could conceivably be relevant to the court, even if it is painful or embarrassing to do that.”
He also noted that:
“I think this use of e-mail exploders [where a single inbound e-mail to a central address is promulgated to a wider dissemination list], and provision of draft judgments to an excessive number of people, is not in the spirit of the Practice Direction, or of the Patents Court Guide, and thought should be given to curtailing it. However, I do make clear that it seems it has over time become a fairly general practice, and that there was nothing malicious in doing it, on anyone’s part, in the course of this case. I will give thought to it myself, and no doubt the parties and others reading this judgment will too. Clearly, a way of disseminating a judgment only to those people who really need to give instructions has to be found, and the responsibility to a considerable extent must lie with the parties, who need to communicate with judges’ clerks a more concise list of people who really need to receive draft judgments.”
The party who was ultimately responsible for the misunderstanding was ordered to pay the costs of the other parties on the indemnity basis.
In Counsel General for Wales v The Secretary of State for BEIS (Court of Appeal, 16 February 2022) an issue arose as a result of a draft judgment being provided to one of the party’s chambers’ marketing team so that they could prepare a press-release for distribution once the judgment had been handed down. Unfortunately, due to a misunderstanding, the outcome of the case was publicised online on the chambers’ website, LinkedIn and Twitter pages the day before the hand-down, where it remained for five hours. As with the Optis case, the Judge (in this case Sir Geoffrey Vos, Master of the Rolls) demanded an urgent written explanation as to how this had occurred and then required the barristers involved to appear in person (their accounts having been provided in written witness statements). In his judgment he noted that:
“It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent. The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected. In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as paragraph 2.8 of CPR PD40E envisages.”
“The persons to whom the judgment is normally…supplied are counsel, the solicitors working on the case, and the parties themselves (whether individuals or corporate). Paragraph 2.5 of CPR PD40E envisages that a party’s legal representatives may supply a copy to the party to the claim in electronic form, not that it can be circulated elsewhere. If the party is a partnership, company, government department, local authority or other organisation of a similar nature, paragraph 2.6 of CPR PD40E provides expressly that “additional copies may be distributed in confidence within the organisation, provided that all reasonable steps are taken to preserve its confidential nature and the requirements of paragraph 2.4 are adhered to”. That is not a licence to circulate the draft judgment beyond those who need to see it for the purposes for which it has been distributed in draft.”
“First, it was not appropriate for persons in the clerks’ rooms or offices of Chambers to be given a summary of its contents. That was not necessary for any of the purposes I have mentioned. The clerk to the barrister in question is sent the draft judgment for onward transmission to the barrister. Whilst I accept nobody in [the relevant chambers’ marketing] office actually read the draft judgment, they were sent a press release explaining its contents, which should not have happened as I shall explain in a moment. There would be nothing objectionable about a clerk transmitting corrections, submissions or draft orders to the court, but that again is not what happened in this case.”
“Secondly, drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo. It would be different if a corporate party wished to issue a press release immediately on hand down to explain to the public what had occurred in the judgment. But barristers (and solicitors) are not parties to the proceedings; they are legal representatives, who are provided with the draft judgment to make suggestions for the correction of errors and to prepare submissions and agree orders on consequential matters. They have no need to prepare themselves for the publication of the judgment, as an individual or other party might need to do.”
“Thirdly, too many people in [the relevant chambers] seem to have had access to the summary contained in the press release. It should be sufficient for one named clerk to provide the link between the court and the barrister or barristers. Nobody else in the Chambers’ administrative machine should have access to the draft judgment or any of the documents created in relation to it without there being a good reason, connected to one of the permitted purposes I have mentioned, for them to do so.”
In Public Institution for Social Security v Banque Pictet & Cie SA (Court of Appeal, 22 March 2022) a partner at a law firm was required to apologise for reporting the outcome of a case prior to the hand-down. He had inadvertently sent a summary of the decision via a WhatsApp group which included 41 international lawyers. The explanation that he had intended to (and in fact thereafter did) send the message only to five senior partners of his firm (purportedly so as to “communicate [a fee- earner’s] availability to work on another case”) was not considered to have been adequate, as that too was considered to be a breach of the embargo, which he accepted. Lady Justice Carr noted that: “Communication with such partners did not fall within the narrow purposes for which the draft judgment had been released. These breaches should have been self-reported at the time.”
In The Duke of Sussex v The Secretary of State for the Home Dept (QBD, 24 March 2022), during the hand-down of the judgment there was a widely reported exchange with the Duke’s QC. A copy of the draft had been provided to a partner at the law firm instructed by the Duke who was not a lawyer but who was a specialist in “reputation management”. Mr Justice Swift described such a step as “entirely unacceptable” and was also critical of the delay in reporting the breach to the Court for a week. He also questioned the Duke’s QC as to the basis on which it had been concluded that there had not been a breach of the embargo to which the Judge responded “Well, let me disabuse you of that – there has been a breach.” The failure of the Duke’s QC immediately to offer an apology also drew criticism from the Judge, adding that the subsequent apology made “in light of” the Judge’s findings used words which were “not well chosen.”
How to handle draft judgments needs to be considered at an early stage and thereafter carefully managed. The following practical tips arise from the four recent cases:
- the draft judgment (and any indication as to its content) should be circulated only to those individuals at the parties and their solicitors and Counsel for the purposes for which the judgment is being circulated in draft (i.e. for the parties to suggest the correction of errors, agree consequential orders or make submissions re the same, and prepare for the publication of the judgment).
- No one else (including colleagues at the instructed solicitors firm/Counsel’s chambers) should see it/know of its content for any other purpose – for example for their internal communications, own marketing/press releases or staffing purposes.
- Note that a professional firm’s insurer is not a “party” to a malpractice claim and therefore would not be entitled to see the draft/know of its content without special permission from the Court. However, such permission is regularly sought and given.
- If there is any doubt as to whether an intended recipient falls within the parameters of the Practice Direction then directions should be obtained from the Court prior to the judgment being circulated/content being disclosed.
- A list of recipients should be maintained by parties and their lawyers.
- To assist with tracking distribution and maintaining confidentiality, draft judgments should not usually be sent to centralised email addresses/wide distributions lists such as document production teams, PR teams or clerks rooms.
- It needs to be made clear to anyone who is intended to receive the draft judgment that it is confidential, not for circulation and that it is only being provided for the permitted purposes.
- It may be prudent to password-protect the draft judgment, even using different passwords for different recipients. Alternatively, it could be provided from a controlled shared folder with restricted access, viewing and downloading rights.
- In the event that parties or their lawyers realise that there may have been a breach of the embargo then immediate steps should be taken to:
- inform the Court
- inform the other parties
- investigate the potential breach
- give a completely transparent account to the Court of how the breach occurred, usually by way of sworn witness evidence. Witnesses should be prepared to attend Court to be cross-examined.
- Where a breach has occurred, professionals should give consideration to self-reporting to their regulator.
- Those who may be liable to face contempt proceedings may need to retain independent legal advisors.
In summary, receiving a judgment in draft is a privilege. It is a process designed for specific, limited purposes. It needs carefully to be managed to avoid any breach of the embargo. Breaches are serious and need to be so treated i.e. with the requisite urgency, transparency, honesty and completeness. The ramifications for individuals (and indirectly for their firms) can be very significant – so it is important that lawyers and support staff are aware of the risks and do all they can to ensure that any draft judgment (and its content) is only shared with specific people for the permitted purposes.