A High Court judge has warned of a ‘serious legal matter’ after a claimant broke a draft judgment embargo by forwarding it to her husband.
The draft judgment was circulated, three days before hand down, to the parties and their lawyers with the regular warning about the embargo. The draft was passed by counsel to his instructing solicitors who in turn emailed it to the claimant, their client.
His Honour Judge Paul Matthews, sitting as a judge of the High Court, said the terms of the embargo set out that not only the draft judgment but also the substance should not be disclosed to third parties.
He added: ‘However, that element of the embargo is not made express in the letter from the solicitors to their (lay) client. Any solicitors who do not do this already really ought to do so in future. The clearer the instructions to the lay client are, the better.’
The judgment in Bernadette Rogers v Andrew Wills said when the judgment was sent to the claimant’s email account it was forwarded onto her husband’s email by ‘some kind of automatic forwarding operation’. Rogers and her husband ‘studied the entire draft judgment, with a view to looking for typographical errors’. When the claimant’s solicitors became aware the husband had seen the judgment, the firm’s senior partner alerted the court.
The judgment said both Rogers and her solicitors apologised, ‘the former for her “unintended disclosure”, and the latter “for not having taken such steps as might have pre-empted or avoided this issue.”’
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The judge accepted the apologies but said the incident served as a ‘warning to all solicitors who pass on embargoed material to their clients to ensure that there is not an inadvertent forwarding (automatic or not) of such material to third parties, such as occurred in this case, and that, if something of the kind does occur, that the lay client seeks advice immediately’.
‘The lay parties to litigation really do have to understand that the circulation of draft judgments to them is a privilege intended to facilitate the most effective and economical way of handing down judgment,’ he said. ‘If laypeople cannot deal with this, judges will not be able to trust them with draft judgments for the future.’
The judge said he should not ‘take any further steps in relation to the claimant’s solicitors’, adding: ‘Although I have suggested an improvement for the future, I do not think they failed in principle to bring home the obligation of confidentiality to that client, as was their duty. It is simply a pity that she did not understand its extent.’
Deciding to do ‘nothing further on this occasion’ as ‘no real harm’ had been done, the judge said: ‘The breach of an embargo on a draft judgment is a serious legal matter, which may lead to proceedings for contempt of court, and punishment in appropriate cases.
‘When the court gives an instruction, it is intended to be followed. On a future occasion, the court may not be so generous.’
Ben Haseldine, instructed by Kleyman & Co Solicitors Ltd, appeared for the claimant while Oliver Ingham, instructed by Lawcomm Solicitors, represented the defendant.
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