Court of Appeal fires warning of contempt proceedings in future after barristers chambers inadvertently violates embargo on publication of contents of draft judgment

February 16, 2022

The Master of the Rolls has issued a warning that, in future, those who break embargoes on the publication or disclosure of the contents of an approved judgment can expect to find themselves the subject of contempt proceedings.

Sir Geoffrey Vos made his comments after leading set Matrix Chambers in error posted on its website and on its Twitter and Linked accounts a press release about the Court of Appeal’s ruling in The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 118 the day before the judgment was due to be handed down.

The proceedings involved an appeal brought by the Counsel General for Wales in connection with the interpretation of provisions of the United Kingdom Internal Market Act 2020 and their effect on legislation of the Senedd enacted in accordance with the provisions of the Government of Wales Act 2006 as amended. The Court of Appeal dismissed the appeal.

In a judgment handed down today (16 February 2021) The Master of the Rolls said it seemed – “anecdotally at least” – that violations of embargoes on publication or disclosure of draft judgments were 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," Sir Geoffrey said.

CPR PD40E sets out the procedure for circulating judgments to counsel for corrections.

The draft judgment in the case had been sent by the clerk to Lady Justice Nicola Davies by email “on the usual terms” to counsel’s clerks at 13:40 on 4 February 2022.

Helen Mountfield QC and Mark Greaves from Matrix Chambers ("the Barristers") represented the appellant, the Counsel General for Wales.

The email included the following:

This draft is confidential to the parties and to their legal representatives. Neither the draft nor its substance may be disclosed to any other person or made public in any way. The parties must take all reasonable steps to ensure that it is kept confidential. No action is to be taken (other than internally) in response to the draft before judgment has been handed down in court. A breach of any of these obligations may be treated as a contempt of court.

The header to the draft judgment itself also included a statement in a substantially similar form, save that it said expressly that “the Practice Direction supplementing CPR Part 40” applied to the draft judgment.

On 8 February – the day before the draft judgment was due to be handed down – a senior practice manager at Matrix emailed a letter to the clerk to Nicola Davies LJ saying that the set’s press release had been uploaded too early. “This was due to a miscommunication within Chambers and we are very sorry for this vast administrative oversight.”

The practice manager said that the release was taken down immediately when the error was discovered. They also said the draft judgment was not included and had not been released.

“We apologise profusely to the court for this mistake and will take steps internally to make sure this error is never repeated,” the letter added.

The Master of the Rolls wrote to the Matrix barristers personally to say he found the explanation to be inadequate. He sought written explanations including as to precisely what went wrong within chambers “and how such a serious error could have occurred”, and the precise steps that the set proposed to ensure there was no repetition of the mistake.

In today's ruling Sir Geoffrey set out the barristers’ explanation for what happened:

Once the clerks had received the password-protected copy of the draft embargoed judgment, they were sent it and the password (by separate email) on the same day (Friday 4 February).
A marketing assistant emailed the barristers on Monday 7 February a message headed “News Item” in the following terms: “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? If so would you be able to draft some text or shall we write something and send to you for approval?”
Ms Mountfield subsequently drafted the text and sent it to the marketing assistant. On 8 February there was a discussion between the barristers and the marketing assistant about whether the latter should post about the case on social media. Mr Greaves said: “I think it is probably worth posting on social media, just due to the importance”. The marketing assistant responded, saying “Thanks for confirming. I’ll post on social media this morning”.

The Master of the Rolls said it could be seen immediately from the email exchange that the barristers each had two opportunities to realise that the marketing assistant was under a misapprehension as to the date of hand-down.

Sir Geoffrey said the fact that busy barristers had missed opportunities to avert a violation of the embargo highlighted the need for chambers “to operate far tighter systems if further such breaches are to be avoided in future”.

The press release was posted on Matrix’s website and on Matrix’s Twitter and LinkedIn accounts at 10.29 on Tuesday 8 February 2022 and taken down five hours later when Matrix was seemingly informed both by the Counsel General’s solicitor and by Mr Christian Howells (the third counsel in the appellant’s team) that no such releases should have appeared.

“Nonetheless, Matrix have some 14,000 followers on Twitter and more than 7,000 followers on LinkedIn, who would have had access to the information. Because the tweet was deleted, there is no information about re-tweets,” the Master of the Rolls said.

Ms Mountfield described to the Court of Appeal the normal practice at Matrix as being: “that when the practice team learns of a hand-down, they flag the fact (though not the content) of the judgment to the marketing team, and a member of the marketing team emails the barrister concerned to ask if it should go onto the website/new feed at the point of hand-down. If so, the barrister is usually asked to draft some wording to be published on the website and social media following the handing down of the judgment”.

A revised practice has been initiated since the incident, the set told the Court.

The Master of the Rolls recorded that both barristers had “properly accepted personal responsibility for what occurred and apologised unreservedly to the court”.

The senior practice manager also filed a witness statement explaining what happened in the office and how the marketing assistant made the error about the date of hand-down inadvertently and despite the fact that the date was correctly recorded in the Chambers’ hand-down log.

The Master of the Rolls said the events he had described should not have happened. “The court understands that mistakes are bound to occur and that is why, if the strict rules contained in CPR PD40E are to be adhered to, far stricter measures need to be put in place by anyone who is given the privilege of seeing an embargoed draft judgment before it is handed down and thereby put into the public domain.”

The judge said he had called the case into the court because the breaches that occurred were not alone, and that he had become aware formally and informally of other breaches in other cases.

Sir Geoffrey noted that the persons to whom the judgment is normally (unless specific protections are provided for) supplied are counsel, the solicitors working on the case, and the parties themselves (whether individuals or corporate).

“Paragraph 2.5 of CPR PD40E envisages that a party’s legal representatives may supply a copy to the party to the claim in electronic form, not that it can be circulated elsewhere. If the party is a partnership, company, government department, local authority or other organisation of a similar nature, paragraph 2.6 of CPR PD40E provides expressly that “additional copies may be distributed in confidence within the organisation, provided that all reasonable steps are taken to preserve its confidential nature and the requirements of paragraph 2.4 are adhered to”. 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.”

Specific errors he identified in this case were:

It was not appropriate for persons in the clerks’ room or offices of chambers to be given a summary of its contents. “That was not necessary for any of the purposes I have mentioned.”
Drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo. “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.”
Too many people in Matrix seemed to have had access to the summary contained in the press release. “It should be sufficient for one named clerk to provide the link between the court and the barrister or barristers. Nobody else in the Chambers’ administrative machine should have access to the draft judgment or any of the documents created in relation to it without there being a good reason, connected to one of the permitted purposes I have mentioned, for them to do so.”
The measures taken by Matrix to protect the confidentiality of the draft judgment and its contents were lax. “The Barristers either did not read or did not properly read emails they were sent in relation to the draft judgment, and no proper precautions or double-checks were in place to ensure that one employee’s error came to attention. I do not wish in this judgment to suggest what level of security is needed, but whatever is done must be effective.”

The Master of the Rolls stressed that the provisions of CPR PD40E are mandatory. “It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that they are complied with. The purpose of the process is 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.”

He added: “CPR PD40E exists for good reasons. The consequences of a breach of the embargo can be serious. It is not possible to generalise about the possible consequences as judgments will range, for example, from dealing with highly personal information in some cases to price-sensitive information in others. The court is rightly concerned to ensure that its judgments are only released into the public domain at an appropriate juncture and in an appropriate manner.”

The Master of the Rolls said his conclusions were as follows:

it is 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
drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo,
it should be sufficient for one named clerk to provide the link between the court and the barrister or barristers,
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, and
in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E.

Lady Justice Nicola Davies and Lord Justice Dingemans agreed.

In a statement Matrix Chambers said: "Last week the substance of a judgment was mistakenly published on Matrix's website and social media for a short time on the day before the official hand-down in court. Immediately after the mistake was noticed, it was taken down and the court and parties notified of the inadvertent but nonetheless serious breach.

"Matrix and the counsel involved apologised to the Court and made immediate amendments to chambers' internal processes to ensure that this error will not be repeated in the future."