Court of Appeal issues "clear message" that those who breach embargoes on draft judgments risk contempt proceedings
In only the third judgment ever to consider the issue, the Court of Appeal has issued a stark reminder that court users should take care to observe any embargo over a draft judgment or else face the possibility of proceedings for contempt of court.
In its judgment in R (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy  EWCA Civ 181, the Court also provided useful guidance on the permissible uses of draft judgments.
The English Courts often circulate their judgments in draft to parties and their lawyers before they are officially published, which is known as being "handed down". Pursuant to CPR PD 40E para 2.5 the parties must, however, keep the contents of the judgment strictly confidential.
In the present case, the Court of Appeal had provided a draft of its judgment to the clerks in the chambers of two barristers acting for the successful appellant.
The draft contained an express warning on its front page that it was to remain confidential to the parties and their legal representatives and that neither the draft nor its substance should be disclosed to any other person or made public in any way.
Two days before the judgment was to be handed down, a staff member in the chambers emailed the two barristers to ask if they would like the judgment to be publicised on the chambers' website and whether they would provide some text for that purpose. The email referred to the handing down taking place "tomorrow". In fact, it was due to take place two days later.
One of the barristers drafted and sent the staff member text for publication. On the following day, the staff member requested confirmation that the story could be posted to social media. The same barrister confirmed that it should be. The staff member replied to confirm that the story would be posted later that morning.
The press release was then posted to the chambers' website and social media for five hours before it was pointed out that it should not have been released as the judgment had not yet been published. The chambers' senior practice manager wrote a letter to the Court in order to apologise.
Sir Geoffrey Vos MR requested a more detailed written explanation of what had happened and required the two barristers to appear before the Court in a special hearing.
The Court's view
Sir Geoffrey Vos, with whose judgment Nicola Davies LJ and Dingemans LJ agreed, said that these events should not have happened.
The Judge drew attention to the terms of para 2.4 of CPR PD 40E, which provides 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".
The Judge pointed out that the persons to whom the judgment is normally supplied are counsel, solicitors and the parties (whether individual or corporate). Para 2.5 of CPR PD 40E envisages that a party's legal team may supply an electronic copy to that party, but not to anybody else. In addition, para 2.6 provided 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". This was not, the Judge emphasised, a licence to circulate the draft judgment beyond those who needed to see it.
The purpose of circulating draft judgments before handing down was to enable parties and their lawyers to suggest typographical corrections, prepare submissions and agree orders on consequential matters, and prepare for the publication of the judgment.
Here, the Judge found that a number of specific errors had been made:
- It had been inappropriate for persons in chambers to be given a summary of the judgment. This had not been necessary for any of the usual purposes for which judgments are circulated in draft.
- 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 happened in the judgment.
- Too many people in the barristers' chambers had had access to the summary in the press release. It should be sufficient for one named clerk to provide the link between the court and the barristers concerned. No one else in chambers should have access to the draft judgment or any of the related documents without good reason.
- The measures taken by the barristers' chambers had been lax. The barristers concerned did not read or properly read emails they were sent in relation to the draft judgment and no proper precautions or double-checks were in place.
- The Judge emphasised that barristers and solicitors are personally responsible to the court for ensuring that the confidentiality of draft judgments is adhered to and they have a duty to explain the relevant obligations to their clients. He warned that those who broke embargoes could find themselves the subject of contempt proceedings as envisaged in para 2.8 of CPR PD 40E.
This decision indicates a heightened concern by the Court as to how embargoed judgments are currently treated. Here, the Court not only required the persons in question to provide a full explanation, further to an explanation and apology already provided by their chambers, but also issued a fully reasoned judgment on the consequences of the embargo breach. The Court noted that at least anecdotally it appeared that violations of embargoes on draft judgments are becoming more frequent and that the purpose of the judgment was to send "a clear message" that such embargoes must be respected.
While the rules on embargoes themselves have not been changed by this decision, it is a pointed reminder to lawyers and parties that they should take great care to observe the embargo on draft judgments, and must put in place "effective" safeguards and double checks. It also provides useful clarity as to what activities may and may not be undertaken while an embargo is in force. Those who fall foul of the restrictions may find themselves the subject of contempt of court proceedings. Lawyers should ensure that they fully and carefully explain these restrictions to clients.