European Disputes
Blog

In cases where the English civil courts choose to reserve judgment, typically parties and their legal representatives are given a confidential preview of the result shortly before formal hand down. This process enables the parties and their counsel to make suggestions that correct drafting errors and to begin preparing submissions on any consequential matters. Naturally, draft judgments supplied to parties are highly confidential and subject to an embargo, meaning that neither the judgment nor its substance can be disclosed to another person or used in the public domain and, further, that no action (other than internally) can be taken in response to the draft before judgment is made public. The permissions are set out in Practice Direction 40E of the Civil Procedure Rules.

Despite the relatively limited (in volume) historic case law in which violations of confidentiality have been in issue, the courts have seen a recent wave of cases involving breaches of draft judgment embargoes, including several this year alone:

• The Public Institution for Social Security v Banque Pictet & Cie SA and others [2022] EWCA Civ 368: In this case, the client lead partner at a defendant’s solicitors intended to send a WhatsApp message to five senior partners in their firm regarding the embargoed judgment, but accidentally sent it to 41 international lawyers in a different – social – group. Within minutes, the error was realised and the message deleted, before the partner communicated with all 41 recipients to confirm they had not read the message. The court accepted the partner’s offer of his unreserved apologies, decided that it had been an inadvertent error and took no further action.
• Match Group LLC and others v Muzmatch Ltd and another [2022] EWHC 1023 (IPEC): Here, certain of the defendants circulated an embargoed judgment internally in order to enable its employees to prepare a press release ready for publication upon hand down. The press release was provided to several journalists before the hand down on the agreement that they would respect the embargo. The breach transpired when the claimant informed the court that it had been contacted by the press seeking comments on the judgment, before it had become public. The judge decided that, while the internal dissemination of the draft was allowed under the rules, providing details to the press was prohibited (even if they had agreed to respect the embargo). The judge found the defendants’ belief that their actions were permissible “genuine” but “surprising”. An apology was accepted as resolving the matter.
• R (Counsel General for Wales) v BEIS [2022] EWCA Civ 181 (“BEIS”): In this case, counsel’s chambers accidentally published a press release regarding the judgment the day before hand down. The press release was deleted as soon as the error was identified. Sir Geoffrey Vos, Master of the Rolls, wrote to the barristers involved and subsequently issued guidance to legal representatives on the topic emphasising that counsel and solicitors in each case are personally responsible for ensuring compliance with any relevant embargo. Sir Geoffrey noted that breaches of embargoed judgments are becoming more frequent and that, in future, those who break the rules can expect to find themselves subject to contempt of court proceedings (as envisaged by CPR PD 40E.2.8).

Guidance

Given the warning in BEIS of a stricter approach to come, it is important that legal representatives and clients are aware of the parameters of embargoed judgments and take steps to respect these from the outset. The following practical tips are derived from the judgments referred to above and, particularly, Sir Geoffrey’s guidance in BEIS:

1. Only circulate the judgment internally (whether among legal counsel or the client organisation itself) and to those who genuinely need to see it for the purpose of making corrections or preparing submissions. Access to the draft should be limited, recipients recorded and email distribution lists should be avoided.
2. Any documents created in relation to a draft judgment during the embargo should be treated in the same manner as the draft judgment itself. It is prudent to refrain from storing such documents on any internal databases or printing paper copies while an embargo subsists, unless appropriate protections and safeguards are in place.
3. Legal representatives must ensure those in receipt of the embargoed judgment are fully aware of the obligations that apply – counsel and solicitors are personally responsible to the court for ensuring that the mandatory requirements of CPR PD 40E are adhered to.
4. If it is unclear who can receive a copy of an embargoed judgment (for example in a multi-jurisdiction case that involved local counsel), the parties should seek clarification from the judge.
5. Parties can speak to colleagues and commercial contacts about the case itself, but any conversations that focus on, or deal with, the outcome should be avoided. In particular, parties should be mindful of even simple words or gestures that might give away the result prematurely.
6. While there is nothing objectionable about a clerk transmitting corrections, submissions or draft orders to the court, as a general rule it is not considered appropriate for persons in the clerks’ rooms or offices of chambers to see the draft judgment or be given a summary of its contents. The same analysis is likely to apply by analogy to solicitors’ firms.
7. Corporate parties may use the draft judgment to prepare press releases for publication immediately on hand down. However, drafting press releases is not considered a legitimate activity for barristers or solicitors to undertake within the embargo. Barristers and solicitors are not parties to the proceedings and they have no need to prepare themselves for the publication of the judgment in the way that a party to the proceedings might need to.
8. Where the parties prepare a press release as contemplated above, this should not be provided to others (including internal marketing teams or external journalists) until the hand down has taken place. Providing a press release to a journalist on confidential terms and requesting that they respect the embargo will not prevent a breach from taking place.
9. Any suspected breaches should be investigated in full and reported to the judge and other parties in the proceedings as soon as possible. In certain recent cases, the parties were slow to report the breach and this approach was criticised by the court.