Three Court of Appeal judges have shown mercy towards an in-house lawyer in the US who has admitted emailing the outcome of a London judgment to his US legal team in breach of an embargo. 

The ruling, by Lord Justice Warby, and agreed by Lord Justice Birss and Lady Justice Falk, is the latest to emerge from the senior courts since the master of the rolls warned last year that ‘those who break embargoes can expect to find themselves the subject of contempt proceedings’.

In InterDigital Technology Corporation v Lenovo Group the Court of Appeal upheld a Patents Court decision that Chinese multinational Lenovo had infringed a mobile telephony patent held by InterDigital, a US-based specialist company. A draft judgment was sent out in the afternoon of 13 January. It was passed to InterDigital’s UK solicitors, international firm Gowling WLG, which advised its clients of the outcome - noting the draft, embargoed, nature of the judgment. 

’The problem arose at the InterDigital end,’ Warby said. InterDigital’s deputy general counsel, Steve Akerley, was on holiday that day and read the email about the judgment hastily on a mobile device. He disclosed the outcome to the company’s US law firm under the heading: 'Confidential – Trial A appeal decision'. The email was then sent to five members of a ‘senior core team’ at the firm. One of them congratulated Gowling solicitor Alexandra Brodie, who replied: 'Thank you but unfortunately that is a breach of the embargo. Who else did he tell?'

In judgment, Warby said these facts had been 'disclosed to us by Gowling WLG and InterDigital’ and confirmed in a witness statement and apology. He said that Akerley was 'right to concede that what he did was in breach of the embargo… [and] also right to accept full responsibility.’ The judge added that 'No criticism can be levelled at Gowling WLG, who were scrupulous in controlling the distribution of the draft judgment, and in drawing attention to the existence and terms of the embargo, and its practical effects.'

While noting that there is 'an argument that liability for contempt of this kind is strict', Warby found that the illegitimate disclosures in this case 'were relatively limited in content and in terms of the number and identity of recipients'. The draft judgment itself was not shared. 

'The disclosure was made to people with a close professional interest in the outcome on express terms ... which were adhered to,' Warby concluded. Following Akerley’s explanation and his apology, 'I am confident that he has now understood the position,' he said. 'Further proceedings would be disproportionate to any need to uphold the court’s authority.'

 

 

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