The importance of adhering to a judgment embargo

In the latest in a line of cases where a judgment embargo has been breached, the Court of Appeal in InterDigital Technology Corporation v Lenovo Group Ltd [2023] EWCA Civ 57 considered the approach the courts should take in such situations.

Key takeaways

When a judgment is circulated in draft in accordance with Practice Direction 40E there are strict rules on how it can be dealt with by the parties while it is subject to embargo. Below are five key takeaways from the Interdigital decision which parties to litigation should bear in mind: 

1. Understand why the courts provides draft judgments. Draft judgments are circulated for the limited purposes of allowing the parties: (i) to make suggestions for correcting any errors; (ii) to prepare submissions on consequential matters or other draft orders; and (iii) to allow the parties to prepare internally for the publication of the judgment.
2. Ensure you understand the scope of the restrictions and that a breach includes sharing even just the outcome of a trial. When solicitors send the draft judgment to their client contacts, they should make clear that the judgment is embargoed and that it must not be shared, nor the outcome discussed, with anyone else except for the purposes of the three categories set out at point one above. For example, in Interdigital the respondent’s solicitors drew attention to the terms of the embargo when emailing the judgment to the four key client contacts. The solicitors also made clear in the title to the email that the judgment was embargoed and the copy of the judgment provided was password encrypted. The solicitors had also called the client contacts before emailing to update them on the outcome, to inform them that they would be sending the embargoed judgment and to remind them that both the judgment and the outcome were embargoed.

   Unfortunately the solicitors were not able to reach one of the contacts who was on annual leave and only quickly reviewing their emails. This contact then made the mistake of updating external counsel in the US on the outcome of the appeal. This disclosure was a breach of the embargo as the external US counsel were neither a party to the appeal nor legal representatives for the purposes of the appeal (even though they had some oversight of litigation against the client).

3. If a mistake happens investigate and update the Court promptly. The mistake came to light when one of the external US counsel team emailed the partner at the solicitors to congratulate her on the result. The Court of Appeal recognised that the solicitors acted quickly (within 24 hours) to unearth who exactly had received the information and then write to the Court.
4. Whether a party actually intends to breach an embargo may not matter. The client contact said they had not realised that they were breaching the embargo by updating external US legal counsel on the result. However, the Court of Appeal held that there is an argument that liability for contempt of court of this kind is strict.
5. The consequences for breaching an embargo can be serious. Here the Court decided that further steps would not be proportionate given the limited nature of the disclosure which was restricted to a small number of individuals with a professional interest in the outcome, the fact that only the outcome was shared, and that the mistake was investigated and revealed promptly to the Court. However, parties should not assume a court will show leniency and should take all possible steps to avoid breaching an embargo and the possibility of proceedings for contempt of court.