In only the third judgment ever to consider the issue, the Court of Appeal has issued a stark reminder that court users should take care of any embargo over a draft judgment or else face contempt of court.

In R (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, the Court provided useful guidance on the permissible uses of draft judgments.

The English Courts often circulate their judgments in draft to parties and their lawyers before they are officially published, which is known as being “handed down”. Pursuant to CPR PD 40E para 2.5 the parties must, however, keep the contents of the judgment strictly confidential.

In the present case, the Court of Appeal had provided a draft of its judgment to the clerks in the chambers of two barristers acting for the successful appellant. The draft contained an express warning on its front page that it was to remain confidential to the parties and their legal representatives and neither the draft nor its substance should be disclosed.

Two days before the judgment was to be handed down, a staff member in the chambers emailed the two barristers to ask if they would like the judgment to be publicised on the chambers’ website and whether they would provide some text for that purpose.

One of the barristers drafted and sent the staff member text for publication. On the following day, the staff member requested confirmation that the story could be posted to social media. The same barrister confirmed that it should be. Posted to the chambers’ website and social media for five hours before it was taken down. Later, the chambers’ senior practice manager wrote a letter to the Court in order to apologise.

The Judge requested a detailed written explanation of what had happened and required the two barristers to appear before the Court in a special hearing.

The Judge drew attention to the terms of para 2.4 of CPR PD 40E (a) and (b). Para 2.5 of CPR PD 40E provides that a party’s legal team may supply an electronic copy to that party, but not to anybody else. In addition, save as para 2.6, this was not, a licence to circulate the draft judgment beyond those who didn’t need to see it. The purpose of circulating draft judgments before handing down was to enable parties and their lawyers to suggest typographical corrections, prepare submissions and agree orders on consequential matters, and prepare for the publication of the judgment.

The Judge found errors had been made. It should be sufficient for one named clerk to provide the link between the court and the barristers concerned. No one else.

The Judge emphasised that barristers and solicitors are personally responsible to the court for ensuring that the confidentiality of draft judgments is adhered to and they have a duty to explain the relevant obligations to their clients.