Fordham: Narrative is itself an adverse outcome
A well-known City law firm has been heavily criticised by the High Court for distributing a confidential embargoed draft judgment (CEDJ) to journalists before it was handed down.
However, Mr Justice Fordham decided against issuing a summons for contempt of court, saying publication of the narrative of what went wrong at Fieldfisher was sufficient in the circumstances.
Fieldfisher acted for the family of 16-year-old Ben Leonard, who a coroner found last year had been unlawfully killed on an explorer scout weekend away by a scout leader and an assistant leader, contributed to by the neglect of the Scout Association.
The two individuals brought a judicial review of the decision, which Fordham J rejected on 30 January this year, having distributed the CEDJ to the parties on 20 January.
On 29 January, counsel for the Scout Association informed the court that his client had been contacted by a BBC journalist who said he had a copy of the CEDJ. This led to a detailed enquiry into what happened.
The “serious error”, Fordham J said, was the firm treating a court embargo like a regular ‘journalism embargo’ – where a person or business restricts journalists from writing about a piece of news until a certain time.
This was the approach of Nicola Pearson, the PR manager who sent the ruling in advance to journalists at the BBC, Guardian, ITV and Press Association.
“It is important to record that this was a big mistake,” said Fordham J.
She was not a lawyer, did not have legal training and “was not given clear instruction”, the judge observed, as Jill Greenfield, the partner leading on the matter, did not fully understand the court embargo either. She had seen Ms Pearson’s communications plan and did not tell her to stop.
Though an experienced solicitor, “her practice has not tended to encounter CEDJs”. This meant she was “not aware that internal marketing-preparations were impermissible”.
She also admitted in one email that she was “not sure what the rules are” regarding embargoed disclosure to journalists.
Fordham J held that Ms Pearson did not read the court embargo on the CEDJ and did not ask anyone for help in understanding what it meant.
He found she breached the embargo by sending emails to two journalists on 24 January which implied the outcome, by sending the CEDJ to four journalists on 27 January, by providing quotations and content to three journalists over the following two days, and by making marketing preparations, including a video interview with Ms Greenfield and writing a case study.
This involved disclosing the substance of the CEDJ to the firm’s social media executive and digital marketing manager.
Ms Greenfield breached the embargo by conducting an interview with the Guardian journalist on 28 January and approving the quotes she had given, and also by giving the video interview.
It was after the Guardian interview that Ms Greenfield became uneasy and sought advice from Andrew Dodd, Fieldfisher’s general counsel.
He explained to her and Ms Pearson what the court embargo meant but admitted before the court that the instructions he gave did not go far enough.
He did not seek “a prompt and clear picture of what Ms Pearson had done” or give her clear written instructions, and failed to contact leading counsel or the court. Parties are expected to inform the court of such breaches at once.
The judge said he was particularly concerned that Ms Pearson sent the fourth of the four emails attaching the CEDJ after being told not to.
She told the court that this had been a mistake. While Fordham J said he had “real difficulties” with her explanation, he decided not to make a finding of fact – although he added that this was the one action which “may” have constituted a contempt of court.
In deciding to take no further action, Fordham J said he was “reassured” by what he had been told about new measures within the firm.
He went on: “It is right to recognise the nature of a narrative judgment which makes clear what has gone wrong…
“The process is burdensome and exacting. The issuing of a public domain judgment like this one serves the public interest, recognises why all of this matters, and is a public record of breaches, shortcomings and concerns. It ‘is itself an adverse outcome’: R v Counihan [2024] EWCA Crim 799 at §36.
“The court has received sincere and heartfelt apologies, expressions of remorse and embarrassment (as in Counihan at §35).
“I have received a helpful and relevant description of what it has been like, in human terms, to undergo this enquiry process. I accept all of this evidence. I accept the apologies. I can see no risk of repetition.”
Having issued the judgment, further steps were “neither necessary nor proportionate”.
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