Judge urges harmonisation of ‘arbitrary’ rules on embargoed draft judgments

A High Court judge has directed that a judgment be sent to the civil, family and criminal procedure rule committees, with a request they ‘seek to harmonise the rules on embargoed draft judgments’.

Mr Justice Mostyn said ongoing ‘confusion’ around contempt of court and the sharing of draft judgments was ‘completely unacceptable’.

He added: ‘It is unacceptable that someone would almost certainly be in contempt of court if she discloses a draft KBD (King’s Bench Division] judgment to a journalist; might well not be if she discloses a draft Family Division judgment; but in all likelihood would not be if she discloses a draft criminal judgment.

‘This is an unacceptable example of arbitrariness.’

Mostyn’s six-page judgment in Varsha Gohil v Bhadresh Babulal Gohil & Ors, delivered in private, was concerned with a ‘discrete point’ on the ‘inexplicable differences that accompany a draft judgment handed down respectively in the KBD, the family division, and the Crown court’, after the first defendant in the case referred to the contents of draft judgments in his position statement.

The judgment said he could be in contempt of court though ‘perhaps surprisingly, there was no rubric on the face of either draft judgment limiting who could be apprised of its contents’ and ‘nothing was said explicity by the judge’ suggesting prohibition though ‘such a prohibition could be inferred’.

Mostyn also alluded to a ‘suitably fierce warning’ produced as a default on a draft King’s Bench Division judgment ‘bearing in mind that the law treats the disclosure of information from a draft judgment under embargo as a serious contempt of court’.

He added: ‘In contrast, in the Family Division and in the Family Court, there is no equivalent to CPR PD 40E. There is nothing in the Family Procedure Rules  in the family rubric which explicitly says that breach of this non-disclosure requirement is a contempt of court. However, the prohibition on communication of the contents of the draft judgment other than to clients is easily construed as having an injunctive character and so it is possible to infer a prohibition equivalent to that applying in the civil courts. That said, it is obviously highly undesirable that something as important as contempt of court should or could be derived from such ambiguous language.’

He added that the position in Crown court ‘is even worse’, adding: ’There is no rule or practice direction which regulates the use of such draft embargoed judgments, and the judgments which are sent out in draft contain no warning rubric at all.’

In a bid to remove the ‘unacceptable example of arbitrariness’, Mostyn said: ‘I therefore direct that a copy of this judgment is to be sent to each of the Civil Procedure Rule Committee, the Family Procedure Rule Committee and the Criminal Procedure Rule Committee with a request that they seek to harmonise the rules on embargoed draft judgments.’

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