Judgments: Many litigants find embargoes difficult to cope with
Lawyers need to explain to their clients, “even more clearly and fully than they already do”, what they can and cannot do with embargoed judgments, the High Court has warned [1].
His Honour Judge Paul Matthews, sitting in Bristol as a High Court judge, said that if litigants did not think they could comply with the terms of an embargo, their lawyers should not tell them what is in the draft judgment.
He made the comments in deciding to admonish Oliver Birrell, the boss of Car-Wizard Ltd, for telling his accountant that the company had won its claim the day before it was handed down.
This was despite being repeatedly warned by his solicitor, Richard Darbinian, an associate solicitor at Bristol firm Wards, not to share it with anyone.
Mr Birrell explained to the court that he told his accountant because he needed advice for the purposes of making submissions on the assessment of damages. The accountant later confirmed that he told nobody else.
When Mr Darbinian found out what Mr Birrell had done, he told counsel, who immediately informed the court. Mr Birrell “profoundly” apologised, saying he did not realise that the email breached the terms of the embargo. Mr Darbinian also apologised.
HHJ Matthews said the solicitor had “properly warned Mr Birrell about the embargo and its effect”.
Though the breach had not caused any actual damage, it was “still a serious matter”.
Despite lawyers diligently advising their clients not to disclose anything of a draft judgment to third parties, “there can be no doubt that many litigants, even if they are prepared to comply with the embargo, find it difficult to apply in practice”, he went on.
“And I expect that some litigants defy the embargo, and do tell close friends and family, perhaps because they do not care, or perhaps because they simply cannot keep secrets, especially from those with whom they live. I do not know what the answer to that problem is.”
This case was different, because Mr Birrell “intended to respect the embargo, but thought that it was not a breach of its terms to tell his accountant when he needed some advice for the purposes of making submissions on assessment of damages”.
HHJ Matthews continued: “It seems to me that, if litigants like Mr Birrell are going to misunderstand what such an embargo means, the burden will fall on the lawyers to explain to their clients, even more clearly and fully than they already do, what they can and cannot do…
“They should ask their clients whether they are prepared scrupulously to observe the embargo. And, if the litigants do not think that they can comply with its terms, then the lawyers should not tell their clients what is in the judgment.”
The judge said he had considered whether to pursue this case as a contempt of court, “if only pour encourager les autres”.
However, he concluded that it was “unnecessary to do more than to admonish Mr Birrell for what he did. In another case, the court may not be so merciful”.