[1]King’s Bench Division: First mention of embargoes in latest edition
Concern among the senior judiciary about the spate of breaches of embargoes on draft judgment has resulted in a clear warning in the updated King’s Bench Division (KBD) guide.
The ninth edition of the guide [2] addresses the issue for the first time and makes clear that preparing press releases is not a valid reason to disclose draft judgments beyond those entitled to see it.
The new guide stresses that a draft judgment is confidential to the parties and the lawyers and any disclosure of it prior to release is embargoed.
“Parties are reminded that when a draft judgment is circulated pursuant to PD 40E [the practice direction on reserved judgments before handing down], the purpose is to enable the parties to make suggestions for correction of errors, prepare submissions on consequential mattes and prepare themselves for the publication of judgment and not for any other purpose.
“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.”
The 260-page guide refers to last year’s stern warning [3] from the Master of the Rolls, Sir Geoffrey Vos, in Counsel General for Wales v Secretary of State for BEIS that those who break embargoes could expect to find themselves facing contempt proceedings.
In that case, a leading chambers accidentally issued a press release a day before the ruling was handed down.
It refers also to another Court of Appeal ruling earlier that year, The Public Institution for Social Security v Banque Pictet & CIE SA and others [2022] EWCA Civ 236, in which the court reminded solicitors in blunt terms of the breadth and importance of embargoes.
The KBD guide goes on to state: “Any breach of the embargo may be a contempt of court and those who breach the embargo may be the subject of contempt proceedings.”
This is what happened in the case of former barrister Tim Crosland, who was found in contempt by the Supreme Court after he released its embargoed ruling on the planned third runway for Heathrow airport. He was disbarred [4] as a result earlier this year.
Also last year, a partner who celebrated a “huge jurisdictional victory” with a WhatsApp message which broke a Court of Appeal embargo apologised to the court [5], while an apology also appeased the High Court after a client sent out a press release [6] about the ruling to certain journalists the day before it was handed down, albeit under a strict embargo itself.
Last month, a senior policy officer at HM Revenue & Customs who made a “full and frank apology” to the court narrowly avoided prosecution [7] for contempt after breaching the embargo on a High Court judgment.
Master Sullivan was credited with shouldering the work of amending the latest edition, with Senior Master Fontaine and Mr Justice Soole overseeing the whole endeavour.