The Court of Appeal has issued a stern warning about breaking embargoes on judgments after a leading chambers accidentally issued a press release a day before the ruling was handed down.
The Master of the Rolls, Sir Geoffrey Vos, said Matrix had made a series of errors, and missed opportunities to avoid the mistake, as its systems were too “lax”.
He said he held a hearing and issued a ruling in part because he was aware of other breaches in other cases.
“It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent.
“The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected.
“In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as paragraph 2.8 of CPR PD40E envisages.”
The case was a judicial review brought by the Counsel General for Wales in connection with the interpretation of provisions of the United Kingdom Internal Market Act 2020.
Helen Mountfield QC and Mark Greaves, two of the three barristers representing the Welsh government on its appeal, practise from Matrix. The draft judgment was sent to their clerks on 4 February, ahead of hand-down on 9 February.
However, a short press release was issued by Matrix on the morning on 8 February and was only taken down five hours later when it was notified of the mistake. The set’s senior practice manager wrote to inform the Court of Appeal, blaming “a miscommunication within chambers”.
Sir Geoffrey said he found this explanation inadequate and requested more details ahead of the hearing that took place yesterday.
The practice at Matrix was for clerks to inform the marketing team of upcoming hand-downs but not their content.
Here, a marketing assistant emailed the barristers on Monday 7 February to say: “I understand you are in court tomorrow for the case of Wales v AG. Would you like a news item to be uploaded onto the website?”
Ms Mountfield drafted some text and the following day the assistant asked whether she should post the news on social media too. The barristers agreed and the assistant replied to say she would do so “this morning”.
The pair admitted to the court that, due to pressure of work, they had not spotted that she wrongly believed the hand-down was that day. They also said they had not read her follow-up email about posting the news that morning.
Sir Geoffrey said: “The fact that busy barristers missed each of the four opportunities to avert a violation of the embargo highlights the need for chambers to operate far tighter systems if further such breaches are to be avoided in future.”
Matrix has 14,000 followers on Twitter and 7,000 on LinkedIn, but because the tweet was deleted, there was no information about re-tweets.
Sir Geoffrey added: “I should also record that both barristers have properly accepted personal responsibility for what occurred and apologised unreservedly to the court.”
While the practice direction permits additional copies of draft judgments to be distributed in confidence within a party’s organisation, “that is not a licence to circulate the draft judgment beyond those who need to see it for the purposes for which it has been distributed in draft”, he went on.
The purpose of the embargo process was to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment.
Drafting press releases to publicise chambers “is not a legitimate activity to undertake within the embargo”.
Sir Geoffrey continued: “It would be different if a corporate party wished to issue a press release immediately on hand-down to explain to the public what had occurred in the judgment.
“But barristers (and solicitors) are not parties to the proceedings; they are legal representatives, who are provided with the draft judgment to make suggestions for the correction of errors and to prepare submissions and agree orders on consequential matters.
“They have no need to prepare themselves for the publication of the judgment, as an individual or other party might need to do. Of course, counsel and solicitors can properly assist and advise their client to make such preparations but that was not what happened in this case.”
He concluded that it was “not appropriate for persons in the clerks’ rooms or offices of chambers to see the draft judgment or to be given a summary of its contents”; it should be “sufficient” for one named clerk to provide the link between the court and the barrister.
“Proper precautions and double-checks need to be in place in barristers’ chambers and solicitors’ offices to ensure that errors come to attention before the embargo is breached.”