• Nominate one person to be the link between you and the court or your solicitors regarding the draft judgment.
• Put proper precautions and double-checks in place to ensure that errors come to light before the embargo is breached.
• If there has been a possible breach of the embargo, report it to your solicitors, who will investigate the matter and may need to inform the court and the other parties to the litigation.

Do not:

• Inform other lawyers or colleagues within your organisation who are not involved in the conduct of the litigation and whose input is not necessary for the permitted purposes.
• Use distribution lists to circulate a draft judgment.
• Post anything regarding the draft judgment or the result on social media or your company’s website prior to hand down.

Introduction

Draft judgments pose a unique challenge to clients, their legal advisors and the court. On the one hand, they serve a very useful function by allowing parties to correct obvious errors in the judgment and prepare for any consequential hearing. On the other hand, they pose a significant risk as parties know the result before the judgment is made public.

Any draft judgment is provided on a highly confidential basis under what is often termed as an “embargo”. Ever since February 2022 when the Master of the Rolls, Sir Geoffrey Vos (the MR), issued a stark warning from the Court of Appeal to legal representatives regarding the embargo.¹ breaches of draft judgment embargoes have been in the legal spotlight. Only three months ago, Mr Justice Mostyn called on the Civil Procedure Rule Committee, the Family Procedure Rule Committee and the Criminal Procedure Rule Committee to harmonise the rules on embargoed draft judgments.² So, what exactly are the rules?

The CPR

The requirements relating to embargoed judgments are set out in PD40E of the Civil Procedure Rules.

What PD40E makes clear is that:

1. the draft judgment is confidential;
2. neither the draft nor its contents should be disclosed to anyone other than the parties and their legal representatives;
3. no action should be taken (other than internally) in response to the draft judgment before the judgment is handed down;
4. a copy of the draft judgment may be distributed in confidence within the organisation, provided that all reasonable steps are taken to preserve its confidential nature and the requirements set out in 1) to 3) above are adhered to; and
5. breach of these rules may be treated as contempt of court.

Significant cases

As noted above, in February 2022 the MR issued a stern warning to legal representatives following breach of an embargo in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 (CGW v SSBEIS). In that case, the marketing assistant from one party’s chambers publicised the outcome of the case on the chambers’ website, LinkedIn page and Twitter page almost 24 hours before the date of public hand down of the judgment in court.

Following the discovery of the breach of the embargo, the chambers wrote to the judge’s clerk to apologise. The MR responded by sending a letter to the barristers involved seeking further explanations and ordered that there be a hearing at the earliest opportunity to hear oral representations as to what occurred and what consequences should follow (paragraph 5). He called the case into court to “send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected” (paragraph 21). He reiterated the following points:

• The “purpose of the process is 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” (paragraph 29).³
• PD40E 2.6 is “not a licence to circulate the draft judgment beyond those who need to see it for the purposes for which it has been distributed in draft” (paragraph 23).
• “Drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo” (paragraph 26). However, he did recognise that a corporate party may wish to issue a press release immediately on hand down, suggesting a party to the proceedings may draft a press release while the embargo is in place. This could be useful if a party needs to manage reputational risk or to make prompt stock market announcements.
• He concluded his judgment with the clear warning that “in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E” (paragraph 31).

Further high-profile breaches have occurred since the MR’s warning. One such breach was in the case of The Public Institution for Social Security v Banque Pictet & Cie SA and others [2022] EWCA Civ 368 where the Court of Appeal again took the opportunity to remind the legal industry, in strong terms, of the importance of observing the embargo regarding draft judgments.

In this case, a partner with conduct of the case on behalf of one of the defendants accidently sent a WhatsApp message regarding the outcome of the case to 41 international lawyers in a group chat. The partner concerned had intended to send it to five senior partners, primarily to indicate a staff member’s newfound capacity. The court held that the partner was in breach of the embargo by (i) sending the WhatsApp message to 41 other lawyers; and (ii) sending the message to his fellow partners after he accidently sent it to the 41 other lawyers. He apologised to the court and was not found to be in contempt of court. Interestingly, the judgment in CGW v SSBEIS had not been released at the time of this case; had it been, then the consequences for the partner involved may have been more severe.

The significance of these two cases is highlighted by their express mention in the updated King’s Bench Court Guide which came into force in June 2023. The guide now refers to the issue of judgment embargoes for the first time. Paragraph 14.32 mirrors the provisions of PD40E by expressly stating that:

“Whilst the party may wish to prepare a press statement in advance of the judgment, to be released after hand down, the drafting of press releases to publicise the lawyers involved is not a permitted purpose (see R.(Counsel General for Wales v Secretary of State for BEIS [2022] EWCA Civ 368 [sic] and The Public Institution for Social Security v Banque Pictet & CIE SA & Ors [2022] EWCA Civ 236 [sic]).” 

Consequences of breaching the embargo

The consequences for breaking the embargo can be severe; at worst, those responsible can be held in contempt of court. In 2021, a former barrister was found in contempt of court by the Supreme Court and fined £5,000 after he released its embargoed ruling on the planned third runway for Heathrow airport a day early.⁴ In January of this year, he was disbarred. It should however be noted that he was unrepentant about his actions and called it an “act of civil disobedience” (paragraph 55).

In April 2023, a senior policy officer at HMRC narrowly avoided prosecution for contempt after breaching the embargo on a High Court judgment.⁵ He had emailed officials at the Home Office, the Department for International Trade, the Cabinet Office and the Foreign Office and informed them of a “favourable” result. After the breach, he made a “full and frank apology” to the court.

In June 2023, the High Court held that a local council breached the embargo when it sent out a press release about a High Court ruling 45 minutes before it was due to be handed down.⁶ While the court held that this was a breach of the embargo, it also held that sharing the result with the council’s internal press officer did not breach the embargo; it accepted that it was “proper for a press release to be prepared, by the defendant as party to the proceedings, so that it could be sent promptly when the finalised judgment had been handed down” (emphasis added). It may also have helped that the council quickly acknowledged the breach and apologised for it.

Although in the latter two cases no findings of contempt of court were made, it is clear that the breaches annoyed the judiciary and were met by public criticism of the parties’ actions.

Given the MR’s warning and the high-profile cases that have followed, it would be difficult to plead ignorance of the consequences of breaching an embargo.

1. In R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181.
2. Varsha Gohil v Bhadresh Babulal Gohil and others [2023] EWHC 1567 (Fam).
3. Following Her Majesty’s Attorney General (Applicant) v Crosland (Respondent) [2021] UKSC 58.
4. Her Majesty’s Attorney General (Applicant) v Crosland (Respondent) [2021] UKSC 58.
5. World Uyghur Congress (2) v Secretary of State for the Home Department & Ors [2023] EWHC 912 (Admin).
6. Kinsey, R (On the Application Of) v London Borough of Lewisham [2022] EWHC 1774 (Admin). 

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