Cautionary tales: how (not) to handle embargoed judgments
Purpose and importance of embargoed judgments
The requirements relating to embargoed judgments are found in the Civil Procedure Rules. Paragraph 2.4 of Practice Direction 40E states that the court may provide a copy of the draft judgment, in confidence, to the parties provided that:
a. "neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and
b. no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down [i.e. published]”.
In Counsel General for Wales v The Secretary of State for Business Energy and Industrial Strategy [2022] EWCA Civ 181, the Court of Appeal reminded court users that those provisions are mandatory. The purpose of sharing a draft judgment ahead of hand down is only “to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment.”
Parties may wonder what it means to “prepare themselves for the publication of the judgment”. A wide range of possible consequences might flow from judgments, from litigants dealing with highly personal information to price sensitive information. Appropriate preparations will therefore be fact specific. What is certain, however, is that communicating an embargoed judgment to external parties is never acceptable without the permission of the court. Even internally, a draft judgment should only be shared with individuals with a genuine need to see it before it is handed down. If parties are in any doubt about whether they can share a draft, they should consult the judge.
International parties might particularly wonder whether they can share embargoed judgments with their overseas lawyers, for example to prepare for enforcement of the judgment overseas. The Public Institution for Social Security v Banque Pictet & CIE SA and others [2022] EWCA Civ 368 refers to the parties having sought and obtained the permission of the court to share the embargoed judgment with the defendant’s Swiss lawyers. This suggests that the prudent course of action will be to ask the court for permission if hoping to share an embargoed judgment with foreign counsel.
Another form of preparation parties might feel they need to undertake is management of publicity. In Match Group, LLC and others v MuzMatch Limited and other [2022] EWHC 1023 (IPEC), the High Court stressed that the courts are “likely to look with a very critical eye” at cases where breach of the embargo arose from a party’s desire to manage publicity concerning the litigation. In that case, the losing party had shared the embargoed judgment with journalists along with a press release it had prepared. It had instructed journalists not to publish this until after the judgment was handed down, but ahead of hand down the judgment and case outcome should not have been shared externally at all without the court’s permission. The judgments in Match Group and Counsel General for Wales both indicate that preparing a press release ready for hand down of the judgment can be a legitimate activity for which the embargoed judgment needs to be shared. However, if the recipient wishes to engage an external PR firm for this purpose, it ought to consult the court for permission before sharing the embargoed judgment with such a firm.
There is also the risk of inadvertent breaches. In Banque Pictet, the Court of Appeal re-emphasised the “importance and breadth” of embargoes while also noting “the need for utmost care in communicating the content or substance of a draft judgment in the digital age.” Given the risks of individuals accidently circulating the substance of judgments beyond those subject to the embargo via social media and quick-fire emails, “greater, not lesser, attention to detail” is required. It is all too easy to send an electronic message to unintended recipients if care is not taken.
The cases have also emphasised that the lawyers receiving an embargoed judgment are personally responsible for ensuring its terms are complied with. The robustness with which the terms of the embargo have been relayed will be considered in assessing the appropriate consequences of a breach. In World Uyghur Congress (2), the judge placed considerable weight on this. The judge found that the legal team had taken all reasonable steps to “properly and accurately communicate” the embargo “and the importance of abiding by it fully explained together with the consequences of failing to do so.” It was significant that the email circulating the draft “could not have been clearer” in setting out the need for confidentiality and the prohibition on further circulation.
What to do if the embargo is breached?
If an embargo is breached despite clear instructions, swift practical steps should be taken to deal with the matter and the court must be informed.
In World Uyghur Congress (2), once it became apparent that the embargo had been breached, the legal team “operated with efficiency and expedition in seeking to detect and close down the breach”. Within 16 minutes of being notified of the breach, the legal team had reinforced the terms of the embargo. When it became clear later that day that the breach of the embargo had led to an unauthorised team of individuals learning of the judgment’s terms, the legal team requested that they be informed as a matter of urgency with whom the draft judgment or its details had been shared. The legal team notified those who had wrongly received information about the draft judgment that this was a breach of the embargo and would be reported to the court. The next morning, the legal team informed the court of and provided the relevant evidence showing: (i) the steps they had taken to enforce and reinforce the embargo; (ii) the nature and extent of the breach; and (iii) the precise events that had occurred in relation to the breach and subsequently.
The Judge then requested a witness statement from the individual (a non-lawyer) who had breached the embargo. That witness statement made clear that the individual concerned had misunderstood the embargo, expressed their deep regret for not reviewing its clear instructions and offered a full apology.
The court concluded that no further action need be taken given “the comprehensive nature of the advice and guidance provided by [the Defendants’ lawyers] and their very prompt action, together with the full and frank apology by the individual guilty of breaching the embargo.” However, the judge made clear that had it not been for the robust nature of the legal team’s advice and guidance on the embargo, and their swift action in closing the breach down, combined with the full apology of the individual in breach, much more serious consequences would have been likely.
Conclusion
The wave of recent cases emphasises the crucial importance of adhering to the terms of the embargo. Lawyers circulating draft judgments must relay very clearly the terms of the embargo. Recipients should read this carefully and strictly observe it. In “preparing themselves for the publication of the judgment”, parties should think carefully about who really needs to know the outcome ahead of hand down. Litigants should seek the permission of the court before sharing with any external parties.
If a breach does occur, the court should be informed promptly and provided with detailed explanations in relation to:
- The steps taken by the legal team to make clear the importance of the embargo and to prevent a breach occurring.
- The steps taken to reinforce the terms of and importance of the embargo once the breach was uncovered.
- The nature and extent of the breach and how it arose.
The legal team and the individual responsible for breaching the embargo would also be well-advised to include with their explanations a full and frank apology for the breach.
