The Court of Appeal has once again been asked to determine what action should be taken following the breach of an embargo on the disclosure of a draft judgment.
Despite the stark warning issued by Sir Geoffrey Vos last year, and the court indicating that there may well have been a contempt, it was decided that contempt proceedings would be disproportionate in the circumstances.
In InterDigital Technology Corp v Lenovo Group Ltd [2023] EWCA Civ 57 the court heard that on the afternoon of 13 January 2023, the draft judgment was circulated to the parties' counsel, their clerks and a representative of each solicitors' firm. The draft judgment stated that it was confidential to the parties and their legal representatives, and that neither the draft nor its substance could be disclosed to anyone else or made public. It also stated that a breach could be treated as a contempt of court.
The solicitors representing the respondent, InterDigital, followed the correct procedure when they informed their client's key contacts of the outcome. However, once received by InterDigital, the draft judgment was passed on to the company's US law firm and further circulated there. The breach was discovered by InterDigital's solicitors on 15 January and reported to the court on 17 January, before the judgment was handed down by the court on 19 January.
The court's leniency is perhaps understandable in the particular circumstances. The court found that the disclosures were relatively limited, both in content and in terms of the number of people involved. Further, it is significant that no public disclosure was made, and the disclosure was brought to the court's attention quickly and without prompting.
In contrast, last year the court saw two cases in which arguably much more serious breaches occurred. One involving a breach by the Chambers involved in the case (by releasing a pre-prepared press release early) and the other an inadvertent disclosure by a legal representative to a WhatsApp group of international lawyers (as a result of which the outcome of the case was publicly tweeted before handing down).
Despite the strict rules surrounding draft judgments contained within CPR PD 40E and the clear warnings on the face of draft judgments, the court seemingly remains reluctant to treat breaches of those rules as contempt of court. Which poses the question, what type of disclosure will the court consider serious enough for it to take that step? One thing is for sure, nobody wants to be the lawyer who finds out!
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