There is a specific and serious injustice embedded in the current rules around embargoed judgments that has received almost no scrutiny.
In 2022, the Master of the Rolls delivered a stern judgment in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, arising from the breach of an embargo by an eminent chambers.
A draft judgment had been circulated under the standard confidentiality provisions of CPR Practice Direction 40E, and a press release was inadvertently published before the judgment was handed down.
In the judgment, Vos MR took the opportunity not merely to address the breach in question but also to send a clear message to chambers and law firms across the jurisdiction: embargoes exist for good reasons, they are mandatory, and future breaches will be treated as contempt.
The judgment was widely reported in legal circles, and rightly so. But the commentary I read focused almost entirely on the warning itself. Nobody, as far as I can establish, examined what the rules say about who may use the embargo period to prepare for the publication of a judgment, and what that means in practice for the communication of justice.
CPR PD40E is explicit. Corporate parties, companies, government departments, local authorities and similar organisations may distribute embargoed draft judgments within their organisations, provided they take reasonable steps to preserve confidentiality.
The purpose of this, the judgment confirms, is to allow them to 'prepare themselves for the publication of the judgment.'
A well-resourced defendant can therefore spend the embargo period, which may run for several days, briefing its communications team, drafting press releases, preparing a narrative, and ensuring that, when the judgment is handed down, it has a clear, polished account of what it means ready to go.
The claimant’s legal representatives are in an entirely different position. The Vos judgment is unambiguous on this point: barristers and solicitors are not parties. They receive the draft judgment to identify errors, prepare submissions on consequential matters, and agree orders.
Drafting press releases, the judgment states, 'is not a legitimate activity to undertake within the embargo.'
Denying communications staff within a law firm or chambers sight of the embargoed judgment, or any summary of it, fundamentally misunderstands the role of communications within a law firm and their support for clients.
I have spent thirty years working in legal communications, most of it on the claimant side, at firms including Irwin Mitchell and Leigh Day. I understand why the rules work as they do for parties, and I do not suggest that the Vos judgment was wrong to address the breaches that prompted it.
But I do say clearly, from professional experience, that the practical consequence of the current framework is a structural advantage to the well-resourced corporate defendant against the individual at the precise moment that matters most.
Consider a significant public interest case: an environmental action, a group claim, a regulatory challenge. The corporate defendant, let’s imagine an oil company with limitless resources, arrives with PR in hand, having spent days preparing.
Its narrative is ready. Its spokespeople are briefed. The claimant’s legal team, however diligent, has had no opportunity to prepare any professional public communication.
The claimant’s communication team must read the judgment as it is handed down, understand it, check with the very busy lawyers for approval, and then try to explain it to journalists who are already asking questions, working to tight deadlines, and who receive a polished response from the other side. The judgment misunderstands why a claimant’s law firm and barrister’s chambers prepare a release; it is not for vainglorious satisfaction, it is to explain the judgment from the claimant’s point of view and to ensure equality of arms, not just in court but on its steps also.
There is an additional irony worth noting. The embargoes that prompted the Vos judgment were not broken by communications professionals. The regulatory response, however, was to further restrict communications professionals’ involvement, on the grounds that preparing press releases is not a permitted purpose. The people disciplined by the rules were not, in the main, the people who broke them.
None of this requires radical reform. The CPR embargo rules should be reviewed with the asymmetry I have described in mind. Named, qualified communications professionals, working under the same confidentiality obligations as the solicitors instructed in a case, have a legitimate role in preparing accurate public communication of judgments on behalf of clients.
A framework that currently prevents them from fulfilling that role, while allowing the corporate defendant’s communications team to prepare freely, does not serve open justice. It undermines it.
David Standard is the founder of Standard Consulting and has worked in legal communications for over thirty years, including at Irwin Mitchell and Leigh Day
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