The concept of a judgment embargo will be familiar to most litigators. However, as the recent case of R (on the application of Wild Justice and Badger Trust) v Natural England [2026] EWHC 1932 (Admin) shows, the unique aspects of an embargo, what it entails, and how it operates in practice, are not always clear to everyone.
In Wild Justice, Mr Justice Fordham commended helpful practical guidance on approaching the distinction between a press embargo and a judgment/court embargo, to avoid future embargo breaches. This vital message is clear (and capitalised in the judgment): the court embargo is fundamentally different from a journalism embargo.
Judgment embargoes in practice
As practitioners will be aware, Practice Direction 40E on reserved judgments provides that a copy of a draft judgment may be supplied, in confidence, to the parties provided that:
(a) neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and
(b) no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down.
When a suspected breach of an embargo is reported, the court must first consider whether there has in fact been a breach. If so, it will then need to consider whether the breach engages CPR 81.6(1), such that the court on its own initiative should consider whether to proceed against the defendant in contempt proceedings.
Wild Justice embargo breach
In Wild Justice, Badger Trust notified the substance of an embargoed judgment (by way of press release) to the press in advance of the judgment being handed down.
The judgment embargo was held to have been breached on the following factual findings:
- The claimants’ solicitors provided the confidential embargoed draft judgment (CEDJ) to their clients with an explanation that the draft was confidential and that neither ‘the draft nor its substance may be disclosed to any other person… before judgment has been formally pronounced in open court’ and a warning that a breach may be treated as contempt of court.
- Wild Justice circulated a press release for use on the day of hand-down, headed ‘embargoed until 10am on 26 June 2026’, including to the claimants’ solicitors.
- The claimants’ solicitors warned that, as hand-down was scheduled for 10am, the press release must not be sent to any journalist until the judgment had in fact been handed down, which was likely to be later than 10am.
- Ultimately, the CEO of Badger Trust sent the press release to 85 members of the press at 09.26 on 26 June, ahead of the 10am hand-down and ahead of receipt of the finalised judgment.
- This came to the attention of the claimants’ solicitors when copied into an email at 14.28 on the same day (which showed the press release had been circulated earlier). The solicitors promptly investigated and informed the court of the suspected breach.
The breach arose from a division of roles between the chair and the CEO within Badger Trust, and a miscommunication between them as to the type of embargo that applied. The CEO had not received the CEDJ or the warnings that had accompanied it. Following discussion with the chair, the CEO applied a 12 noon press embargo, unaware that the press release should not be released to the press before hand-down. In evidence provided to the court, the chair of Badger Trust accepted that they should have provided clearer instructions to the CEO. The court accepted the chair’s apology, attributed the breach to human error and held that contempt proceedings were not appropriate.
Practical guidance
The court endorsed a suggestion offered by the claimants’ solicitors as to how to minimise the risk of such a breach happening in future:
(1) to explain the meaning of a court/judgment embargo and how it differs from a journalism/press embargo, particularly in light of the different way the word is understood and used in a press context; and
(2) to discuss and clarify the members of the ‘group’ that will be informed about the draft judgment before it is received, to establish and record that group in advance.
To conclude, the court reiterated that a party with whom a CEDJ has been shared is not permitted to alert, or communicate their position on, the outcome or content of the CEDJ ahead of receipt of a finalised handed-down judgment, to the press or anyone else.
Reporting breaches and avoiding internal misuse
A key takeaway for lawyers dealing with embargoed judgments is that, should a breach occur, there is a duty to report it immediately to the court and the opposing party or parties, while making swift and rigorous enquiries as to the circumstances of the suspected breach. The importance of this was demonstrated in the case of R (Glaister) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), where, in stark contrast with the Wild Justice case, the breach was not communicated promptly to the court upon discovery. Instead, it only came to the court’s attention when a journalist informed another party that they had received a copy of the CEDJ, and that party subsequently alerted the court.
A further issue in Glaister was that the lawyers had undertaken internal marketing preparations during the judgment embargo, which was not permitted and amounted to a breach. While lawyers may assist their client to prepare a press release for publication by the client after hand-down, preparing their own marketing materials is not permitted and will be treated as a breach of the embargo.
Tim Sales is a partner at CMS and a London Solicitors Litigation Association committee member. Lisa Fox is knowledge counsel in the litigation and arbitration team at CMS
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