A High Court judge has decided to take no further action after a draft judgment was passed onto journalists ahead of hand-down.
Mr Justice Fordham said the breaches by members of international firm Fieldfisher were a ‘serious error’ but that he did not need to refer the matter to the attorney general for contempt proceedings. Having issued a ruling in which the firm’s mistakes were laid out in full, the judge said further steps were neither necessary nor proportionate.
The issue arose when a confidential draft judgment was circulated to the parties 10 days before hand-down was scheduled. The court was alerted to a problem when one of the parties was approached for a comment by journalists from the BBC and the Guardian, who either had a copy of the draft embargoed judgment or knew it was being handed down.
Jill Greenfield, a partner with Fieldfisher with conduct of the case, emailed the court to say that a breach had been identified within the firm and that the source was media manager Nicola Pearson. Greenfield had immediately instructed Pearson to name and contact each individual who had been sent the judgment, notifying them of the court's embargo and requiring them to ‘return’ it.
The judgment was duly handed down but the judge ordered a one-day hearing to consider what had happened and whether further action was necessary.
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The court heard that Pearson, a non-lawyer, had communicated to Greenfield her plans to send the judgment, along with quotes, to journalists under a press embargo. The judge said Pearson did not read the court embargo nor did she ask anyone for help in understanding what it meant. The judgment was sent to four journalists and the outcome implied to two others.
The judge said Greenfield failed to give clear written instructions to the media team and did not step in when Pearson said she would be circulating the judgment. The firm’s general counsel, Andrew Dodd, who upon finding out what had happened instructed all communications with journalists be shut down, also should have reported the full position to the court.
Pearson’s evidence was that she understood ‘embargo’ to indicate that it was permissible to circulate the judgment to journalists under an agreement that nothing could be reported ahead of hand-down. The judge described this as a ‘big mistake’. A court embargo is ‘fundamentally different’ to a journalism embargo where the media is told information that should not be reported before a certain time, the judge said. He stressed that the embargoed judgment was expressly confidential and its circulation highly restricted, including within the firm.
It was noted that the court had received sincere and heartfelt apologies and expressions of remorse and embarrassment. The judge accepted these apologies and said there was no risk of repetition.
‘The seriousness with which the court treats these matters stands fully communicated and acknowledged,’ added the judge. ‘So far as the court is concerned, this judgment is enough. The enquiry has been undertaken. Sufficient clarity has been achieved. Lessons will have been learned.’
In 2022, following a series of leak incidents, the master of the rolls warned that ‘in future those who break embargoes can expect to find themselves the subject of contempt proceedings’.
