A local authority that sent out an embargoed press release about a High Court ruling that had not yet been handed down has apologised to the judge.
Mr Justice Fordham said it was agreed that this was a breach of the embargo on judgments and that the court should find and record the breach.
But there was no application for or finding of contempt. “No order is necessary. This judgment is sufficient to address the concerns which have arisen,” he said.
He also gave guidance on how to decide who should be told about an embargoed ruling internally at an organisation.
In the substantive case, the judge rejected a challenge to planning permission granted by the London Borough of Lewisham.
Fordham J 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”.
He said this was different from the Counsel General for Wales case last year in which a chambers accidentally put out a press release the day before hand-down and led to the Court of Appeal issuing a stern warning about embargoes.
In that case, the Master of the Rolls, Sir Geoffrey Vos, said drafting a press release was permissible if a corporate party wanted to issue one “immediately on hand-down to explain to the public what had occurred in the judgment”.
Here, Fordham J said, it was legitimate to brief the council’s internal press officer about the ruling so that it “would be in a position expeditiously to update the public and inform the community as to the outcome”.
But sending out an embargoed press release 45 minutes before the hand-down was a breach of the judgment embargo, notwithstanding that it was only sent to 17 journalists and was not reported on until after 10am.
The judge accepted that the press officer’s “misunderstanding of the court embargo was a genuine human error”.
The council “promptly acknowledged the breach and has apologised for it” and also agreed a written protocol with its monitoring officer to prevent a repeat.
The draft judgment was seen by five people at the council, while a further six were told the outcome. Fordham J rejected the claimant’s complaint that the latter group should have had to wait.
He accepted the council’s explanations for telling them but stressed there must be a “need” which could not be satisfied through “the benign communication” of when the hand-down would take place
He continued: “There is a need for care and a conscientious exercise of judgment. There is a need for diligence. On the other hand, the court ought not routinely be drawn into supervising a distribution list.
“I accept that persons within an authority or entity which is a party to the proceedings may, in preparing themselves for publication of the judgment, need to be aware of the substance of [an embargoed ruling], may need to be prepared, and may need to be assisted by co-workers in how they are prepared, so as to be able to ‘hit the ground running’ when the judgment is handed down.
“I also accept that it may not always suffice, or be practicable, to schedule each such person to be told of the timing of the proposed hand-down and then have the outcome communicated at that moment.”
But that was not to encourage “large numbers for circulation”.
Fordham J said a party should “liaise closely with their legal representatives” in identifying those individuals to whom the ruling should be circulated or the outcome communicated and the “clear basis” for doing so.
“The question should be asked: why does it not suffice for the person to be made aware of the timing of the proposed hand-down and receive the communication promptly when it takes place? If there is doubt, the court’s permission should be sought.”
Last month, the latest edition of the King’s Bench Division guide addressed the issue of embargoes for the first time following a spate of cases in which they were breached.
Photo: Reading Tom from Reading, UK, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons