Strictly need to know: High Court provides further guidance on confidential embargoed draft judgments

In a judgment that has recently become available, the English High Court has once again warned parties and their legal representatives of the importance of ensuring that the embargo on sharing confidential draft judgments is not breached, a consistent message with a growing body of case law on this subject. The judgment or its outcome should only be shared with those who need to see the draft judgment or be informed of its contents before the judgment is handed down. If in doubt, parties should seek the court's permission before distributing, or risk being held in contempt of court (R (on the application of Kinsey) v London Borough of Lewisham [2022] EWHC 2723) (1).

A confidential embargoed draft judgment in relation to a planning dispute was circulated by the court's clerk to the parties' legal representatives six days before the finalised judgment was handed down.  

The legal representatives for the defendant, London Borough of Lewisham (the Council), sent a copy of the draft judgment on the day it was received to three individuals at the Council noting prominently in the cover email that neither the draft judgment nor its substance (including the result) could be disclosed to any other person until it was handed down and that to do so would be contempt of court. 

The draft judgment itself was shared internally at the Council with another two members of staff.  The outcome of the case (as described in the draft judgment) was then communicated to a further six senior individuals at the Council (including several Councillors) who were informed that the outcome of the case and the draft judgment were subject to an embargo until judgment was handed down, and that disclosure would be contempt of court.  

The outcome of the case was also shared with the Council's media manager so that a draft press release could be prepared in advance of the judgment being handed down.  The media manager was on annual leave on the day the judgment was to be handed down so asked a colleague to send the press release to media contacts "first thing".  The press release was emailed to the various external media outlets at 9.15am (45 mins before the judgment was handed down at 10am) noting that it was subject to an embargo until 10am. 

The Council did not dispute that the distribution of the press release to external journalists ahead of the hand down breached the embargo.  The issue in dispute was whether the internal distribution at the Council had breached the embargo.  

The claimant, Helen Kinsey, contended that the internal communication of the outcome of the case to the individuals who did not receive the judgment could only have been for interest.  Ms Kinsey claimed that this breached the embargo because it went beyond those who needed to see it for the (legitimate) purposes of correcting errors, preparing submissions on consequential matters and preparing for the publication of the judgment.  

The Council argued that the internal communication of the outcome of the judgment within the Council did not breach the embargo.  The individuals, who were all Councillors or otherwise in senior positions, did need to know the outcome to prepare themselves for publication of the judgment.  Each of them had been professionally involved with the case and given the widespread public interest they were likely to be contacted for comment immediately after the judgment was made public.  The Council argued that it was also legitimate for it to prepare a press release in advance of the handing down (to be distributed upon the judgment becoming public). 

In relation to the internal circulation of the outcome of the case, the court held that there was no breach of the embargo.  The court was clear that draft judgments can never be shared simply for information or for interest.  There must be a clear need for the person to be made aware of the substance of the draft judgment for the purpose of preparing submissions, correcting errors or preparing for publication of the judgment. If it sufficed simply to inform the individual of the timing of the hand down and communicate the outcome promptly to them once the judgment was made public, then the draft judgment should not be shared with them in advance.

In this case, the court held that there was a need for the Councillors and those in other senior positions at the Council to be made aware of the outcome of the decision in advance of the handing down to enable them to "hit the ground running" when the judgment was made public.  In doing so, the court seemingly accepted that the Councillors and other senior individuals at the Council would not have been sufficiently prepared for the publication of the judgment had they only been told of the outcome upon the judgment being handed down (and suggested that it may not have been practicable to communicate the outcome to each of them upon the handing down in any case).  

However, the court was clearly keen to discourage parties from circulating draft judgments (or the substance of them) to large numbers, even internally within an organisation that was a party to the proceedings.  The court emphasised the need for diligence, care and a conscientious exercise of judgement when considering to whom a draft judgment should be communicated.  The court cautioned that parties should liaise with their legal representatives to identify those individuals who have a legitimate need to see the draft judgment (or be informed of its outcome) and to record those reasons contemporaneously.

The court also accepted that it was proper for a press release to be prepared by the Council (as a party to the litigation) so that it could be sent promptly after the handing down of the judgment.  This was in stark contrast to the drafting of a press release by a barrister's chambers or a solicitors' firm to publicise their role in the case, which the court held was not a legitimate purpose citing the Court of Appeal judgment of the Master of the Rolls in Counsel General for Wales ².  It was therefore legitimate for the outcome of the case to be communicated to the council's internal media manager in advance of the judgment being handed down so he would be in a position to update the public and inform the community of the outcome promptly on the judgment being handed down. 

Unsurprisingly, however, the court held that the Council had breached the embargo by sending the press release to its external media contacts in advance of the judgment being handed down (which the Council did not dispute).  This was notwithstanding the fact that the press release was emailed to only a portion of the press (rather than the public at large) just 45 minutes before the judgment was handed down and bore its own warning to journalists that the judgment was embargoed until 10am (the press did not actually report on the case to the public until 13.06am that day).  

Nevertheless, the court accepted the apologies from the Council and in making no finding of contempt, further accepted that the breach arose from a genuine misunderstanding by the Council's media manager of the nature of the embargo on draft judgments, who had not appreciated that a press release with a note on reporting restrictions could not be shared with external journalists (which was standard practice for other announcements by the Council). 

This case builds on a string of warnings given by the court in relation to the embargo on sharing the contents or substance of a draft judgment before it is made public.  The most notable of these is the Court of Appeal judgment in Counsel General for Wales, in which the Master of the Rolls was clearly concerned about the frequency of violations of Practice Direction 40E and wanted to send a clear message to all those who receive embargoed judgments that the embargo must be respected.  It is the personal duty of those who receive draft judgments (including solicitors, barristers and in-house lawyers) to ensure that the embargo is complied with.

In the Lewisham Council case, the court was quick to find that there was no contempt by any of the individuals at the Council involved in the press release being prepared and emailed to journalists ahead of the hand down.  It appears from the judgment that the court took into account the sincere apologies it received from the individuals involved and the fact that the breach arose from a genuine human error. 

That said, the embargo on the publication of draft judgments is something the court continues to take very seriously indeed.  As the Master of Rolls noted in Counsel General for Wales, draft judgments are circulated in confidence as they may contain important, highly personal or price-sensitive information. It is therefore essential that they are made public in an orderly manner.  

Although nobody in the recent line of cases has been held in contempt, it remains a very real risk for any individual who violates the embargo.  If there is any doubt to whom the draft judgment or the outcome can be communicated, parties should seek the court's permission before doing so.

¹ The judgement was given in October 2022 but has only recently become available.

² R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181.)