News focus: Are lawyers still breaching judgment embargoes?

It is now a year since the master of the rolls read the riot act to lawyers (particularly barristers) who breach embargoes on judgments ahead of hand-down. Reprimanding Matrix Chambers in Counsel General for Wales v Secretary of State for Business, Sir Geoffrey Vos said: ‘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.’

After accepting ‘unreserved apologies’ for the accidental breach – caused by a misunderstanding in Matrix’s marketing department – he warned: ‘In future, those who break embargoes can expect to find themselves the subject of contempt proceedings.’

Since that warning, no one has gone to prison for an embargo breach. But courts recorded at least three high-profile incidents last year. Another, contested, allegation of embargo breaching will go before the divisional court in April.

Remarkably, two of the incidents occurred within a month of Vos’s warning. In the first, an international fraud litigation specialist at City firm Peters & Peters apologised to Lady Justice Carr for sharing the outcome of a case on a WhatsApp group. The message, originally intended for a group for sharing confidential messages between senior partners, was mistakenly posted to a wider group of international lawyers.

‘Communication with such partners did not fall within the narrow purposes for which the draft judgment had been released,’ Carr said. ‘These breaches should have been self-reported at the time.’ However she said that ‘it is not clear who committed the breach’ and that it was not appropriate for the court to carry out ‘complex, expensive and probably ultimately fruitless enquiries into precisely who committed the breach(es), when and how’.

'Further proceedings would be disproportionate to any need to uphold the court’s authority'

Lord Justice Warby

In the same week, a much higher-profile case – featuring the Duke of Sussex – also highlighted the issue. Mr Justice Swift castigated the duke’s legal team for a decision to share the draft judgment in an action against the Home Office with a non-lawyer partner at defamation specialist Schillings. This was an ‘obvious breach of the terms on which the draft judgment was provided’, the judge said. He was also critical of the delay in notifying the court. ‘Why did it take a week to report this?’ he asked Shaheed Fatima (then) QC. Fatima replied that she was ‘very sorry for the fact that I did not think fully before those emails were sent and I did not contact the court sooner’.

The potential dangers of sharing a draft judgment even within a legal team in the digital home-working age were illustrated in the Court of Appeal last month. Lord Justice Warby found that a draft decision in a highly commercially sensitive patent case had been accidentally disseminated by one of the parties in the US. The deputy general counsel of US telecom business InterDigital read an email about the judgment hastily on a mobile device and forwarded it to the company’s US law firm under the heading: ‘Confidential – Trial A appeal decision’. The email was then shared within the firm’s senior team, one of who congratulated solicitor Alexandra Brodie at the company’s UK firm, Gowling WLG. She replied: ‘Thank you but unfortunately that is a breach of the embargo. Who else did he tell?’

Commending both Gowling and InterDigital for bringing the matter to his prompt attention, Warby said: ‘Further proceedings would be disproportionate to any need to uphold the court’s authority,’ he ruled.

These incidents are in a different league to the one that may have pushed the issue up the master of the rolls’ ‘to do’ list: the deliberate leaking by former barrister Timothy Crosland of the Supreme Court’s judgment in the Heathrow runway case. That did result in contempt hearings – and a strike-off by the Bar Tribunals and Adjudication Service. In judgment, published this week, the tribunal was unimpressed with Crosland’s argument that it had no jurisdiction as he had already relinquished his barrister status. It would not be in the public interest, it observed, ‘if any professional who was subject to regulation could frustrate proceedings against him or her by unilaterally asserting that he or she no longer belonged to the profession concerned’.

A year on from the master of the rolls’ warning, no one can claim ignorance of the risks of breaching an embargo. But given the speed with which news of a judgment can fly around the world in the social media age, it would be bold to say a leak could never happen again. A year ago, Vos said that drafting press releases ‘is not a legitimate activity to undertake within the embargo’. Nonetheless, the Gazette continues to receive comprehensive and well-written releases from public relations companies remarkably quickly after some hand-downs.