R (COUNSEL GENERAL FOR WALES) V SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY [2022] EWCA CIV 181

Following the breach of an embargo on publication of a draft judgment provided to the parties, their counsel and solicitors, Sir Geoffrey Vos, MR, has provided guidance to legal representatives. This Court of Appeal guidance clarifies that counsel and solicitors instructed in a case are personally responsible for ensuring compliance with any embargoed draft judgment and could expect to face proceedings for contempt if an embargo is breached. 

Since this decision the legal press has reported two further (unconnected) embargo breaches. We summarise those later in this piece.   

COMMENTARY

The guidance issued by Sir Geoffrey Vos, MR, responded to violations of embargoes of draft judgments becoming more frequent – "anecdotally at least". Sir Geoffrey drew attention to the mandatory provisions of Practice Direction 40E (Reserved Judgments). The purpose of providing an embargoed judgment is to enable the parties to: draw the court's attention to any errors; prepare submissions; agree consequential orders; and prepare for the publication of the judgment. Under PD 40E.2.8, any breach of the obligations and restrictions on relevant parties in pursuit of this purpose may be treated as contempt of court. 

FACTUAL BACKGROUND

In the case, the senior practice manager from the chambers of two counsel acting in the case wrote to the judge's clerk the day before judgment was to be handed down to inform the court that a press release relating to the embargoed judgment had been temporarily published online via Twitter, LinkedIn and on the chambers' website. On discovery of the error, which the senior practice manager explained was due to a miscommunication, the press release was taken down. By this time, the press release had been online for some five hours. 

The court's email circulating the draft judgment had expressly reminded the parties and their legal representatives of the restrictions during the embargo, stating that the judgment was confidential, that neither the draft itself or the substance of it was to be disclosed to others or made public, and that other than internally, no action was to be taken in response to the draft judgment before it was handed down. 

In response to the premature publication of the press release, and after correspondence between Sir Geoffrey and the barristers, a hearing was convened to review the situation. 

A further recent example of an embargo breach was reported by the Law Gazette on 24 March 2022. The Duke of Sussex’s lawyers were criticised by Mr Justice Swift, a High Court judge, for breaching the embargo on a draft preliminary ruling in the Duke of Sussex's judicial review against the Home Office. The draft judgment had been shared with a partner at Schillings specialising in reputation management and who is not a qualified lawyer. Mr Swift described the decision to share the embargoed judgment as "entirely unacceptable". He was also highly critical of the week-long delay in the breach being reported by the Duke of Sussex's lawyers. 

In another recent example reported in March 2022, the Court of Appeal held in The Public Institution for Social Security v Banque Pictet that a partner in a law firm had breached an embargo on a draft judgment, provided in confidence to the parties and their lawyers. The court in its judgment reminded solicitors of the breadth and importance of embargoes. If the draft judgment is embargoed, neither the solicitors dealing with the matter, nor their clients, can inform anyone else) of what it contains until just before it is due to be handed down. In the case, the breach of the embargo was apparent after a series of tweets by Kuwaiti news outlets on Twitter revealed the broad outcome of the appeal. The case involved fraud allegations on the part of multiple individuals and organisations. The court made clear that these breaches were very serious given the high profile and high value of the case. 

KEY LEGAL POINTS

• The provisions of PD 40E are mandatory. The purpose of the process of circulating a draft judgment is to allow for appropriate preparations to be made and for errors to be identified in advance of the handing down. 
• Where an embargoed draft judgment is provided, counsel and solicitors instructed in the case are personally responsible for ensuring compliance. 
• Draft judgments should not be circulated or summarised for persons in the clerks' rooms or offices of chambers. One named clerk should be the link between the court and the barrister(s).  
• Barristers' chambers and solicitors' offices must have in place proper processes and checks to prevent an embargo being breached. 
• Drafting press releases to publicise chambers is not a legitimate activity whilst an embargo is in place. 
• Those who break embargoes should expect to be the subject of contempt proceedings (PD 40E.2.8). 

Key Contact

Finlay Lam-Gall