Carr: Embargo breaches becoming more frequent
A partner who celebrated a “huge jurisdictional victory” with a WhatsApp message which broke a Court of Appeal embargo has apologised to the court.
Keith Oliver, head of international at City firm Peters & Peters, sent the victory message to five senior equity partners, having previously “by error” sent it to a “quite different” WhatsApp social group of 41 international lawyers.
Lady Justice Carr said the incident highlighted the need for the “utmost care” in communicating the content of draft judgments in the digital age and the use of electronic messaging required “greater, not lesser, attention to detail”.
Master of the Rolls Sir Geoffrey Vos warned last month [1] that lawyers who broke embargoes risked contempt proceedings, after Matrix Chambers accidentally issued a press release a day before a ruling was handed down.
Carr LJ said the case before her confirmed “the anecdotal information” referred to by Sir Geoffrey that breaches of court embargoes have become more frequent.
In the case, tweets appeared from “various Kuwait news outlets” in January this year giving “the broad outcome” of an appeal before judgment was handed down.
In dismissing the appeal by the Kuwaiti Public Institution for Social Security (PIFSS), the Court of Appeal had confirmed that it did not have jurisdiction over claims made against certain Swiss banks and bank accounts involving the main defendant.
Delivering a judgment [2] on the embargo breach, Carr LJ said the Court of Appeal granted permission to PIFSS and all but two of the defendants to “circulate the draft further to identified Swiss legal representatives”, subject to practice direction 40E.
US firm Greenberg Traurig, solicitors for the main defendant but who did not take part in the appeal, complained about the tweets to Stewarts Law, acting for PIFSS.
It argued that, because PIFSS and those instructing Stewarts were the only parties based in Kuwait to have received the draft judgment, there was a “very strong inference” that they had breached the embargo.
Stewarts Law responded that, following extensive enquiries, there was “no basis” for the allegation.
However, the Court of Appeal emailed Stewarts, requiring it to write to all of the respondents to the appeal and defendants in the main action to confirm that they were not responsible for the tweets.
As part of this exercise, Mr Oliver, who acted for one of the defendants, revealed that he “received and read the embargoed judgment in the late evening” of the day it was circulated, while working in Dubai.
“Just after 10.15pm he sent (so he then thought) a WhatsApp message to five senior equity partners at Peters & Peters, a group used for confidential messages between senior partners.”
This contained the statement: “In other news we just won in the CA on the Pictet case. Huge jurisdictional victory.”
Carr LJ said Mr Oliver sent the message by error to “a quite different group of 41 international lawyers in a group sharing interests and created for social reasons”.
Alerted to what he had done almost immediately, Mr Oliver “immediately sent a further message to the group asking recipients to ignore the message and delete it as soon as possible” before deleting the message.
However, he then sent the message “as originally intended” to the group of senior partners.
Expressing “deep regret”, Mr Oliver said he should have informed the court at the time, but his partners all confirmed they had not disclosed the contents, and all the international lawyers said they had not read the message before its deletion.
Carr LJ said the breaches of the embargo were “very serious in what is a high-profile and high-value case involving allegations of fraud on the part of multiple individuals and organisations”.
It was clear to the court that the embargo had been breached but it was “not clear who committed the breach (or breaches)”.
It was not appropriate for the court to “instigate what would be complex, expensive and probably ultimately fruitless enquiries into precisely who committed the breach(es), when and how”.
Mr Oliver’s breaches of the embargo “should have been self-reported at the time”, but it was “not suggested that there is any connection between his messages and the tweets”. In all the circumstances, it was unnecessary for any further steps to be taken.
Lady Justice Simler and Lord Justice Peter Jackson agreed.