Dealing with a confidential embargoed draft judgment (R (on the Application of Helen Kinsey) v LB of Lewisham)

What are the practical implications of this case?

The judgment makes clear that a party should liaise closely with its legal representatives in identifying individuals to whom a CEDJ is proposed to be circulated to or communicated with. A clear basis as to why that circulation or communication is ‘‘needed for the purposes for which the CEDJ has been distributed by the Court’’ should be identified, prior to circulation, and records of this maintained. There must be a reason as to why prompt communication of the outcome once it has been handed-down will not suffice.

With regard to an EPR, the court made clear the importance of clarifying the nature of the embargo. Had this been done, the officer in this case would not have mistakenly thought that an EPR could be sent out prior to hand-down with a publication embargo until 10am. The court’s finding of a breach, despite publication of the EPR being only 45 minutes premature and the fact that it was not released to the public at large but to a portion of the press, indicates the strict approach likely to be taken by courts in relation to court embargos.

What was the background?

The original judgment to which the CEDJ relates to is the High Court’s decision in R. (on the application of Kinsey) v Lewisham LBC [2021] EWHC 1286 (Admin), in which the Claimant sought judicial review of the Defendant’s decision to grant planning permission. The CEDJ was circulated on the morning of 5 July 2022 to all Counsel and solicitors. The scheduled virtual hand-down date for the finalised judgment was identified as 10:00 on 11 July 2022.

The Defendant’s solicitors and Counsel emailed the CEDJ to the Defendant’s Director of Planning, the Major and Strategic Projects Manager (Interim) and Planning Case Officer, and the Head of Development Management. In turn, the Defendant’s Director of Planning internally emailed the news of the outcome to a group of Defendant’s officers and members prior to the hand-down date. The Claimant contended that the scope of this internal distribution constituted a breach of the embargo, because the draft had been communicated beyond those who needed to see it. The “purposes” of circulating a CEDJ are to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and prepare themselves for the publication of the judgment (JR Guide 2022 §11.6.2; R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 [2022] §24). The Claimant also submitted that the communication of the outcome to a councillor who had previously been responsible for planning could only have been "for interest", and therefore beyond this legitimate scope.

In relation to the EPR, the Director of Planning emailed the outcome to the local authority's Media and Campaigns Officer for Planning who created a press release and asked a colleague to send it out ‘‘first thing’’ on the morning of the 11 July 2022. On instruction, it was sent to various media outlets at 09.15, 45 minutes before the judgment was handed down.

What did the court decide?

With regard to the Defendant’s internal distribution of the CEDJ, the court found that there was no breach. The Defendant had given a reasoned explanation as to why the individuals had been informed. The court accepted that there was a legitimate need for those people to be informed and prepared. The view of the court was that if permission had been sought for the CEDJ’s internal distribution on the reasoned basis put forward, it would have been granted (although the court also noted that it should not routinely be drawn into supervising a distribution list). In terms of key takeaways, the court found that individuals to whom a CEDJ is proposed to be circulated or the outcome is proposed to be communicated to should be identified prior to circulation and duly recorded. The court noted that “neither a CEDJ nor the outcome arising from it can legitimately be communicated purely “for interest” or “for information”. There must be a “need”, based on the identified purposes of the distribution of the CEDJ.”

With regard to the EPR, the Court found that communicating the outcome to the Defendant’s internal press officer so that they would be in a position expeditiously to update the public was not a breach. It was however a breach of the embargo to send an EPR to the press, communicating substantive content from the CEDJ. This was notwithstanding the fact that the publication was not to the public at large but to a portion of the press; that it was premature by 45 minutes; and that there was no press reporting until after 10:00 on 11 July 2022 (not until 13:06). However, no finding of contempt was invited or made and no order was necessary.

Case details

• Court: King's Bench Division
• Judge: HON. MR JUSTICE FORDHAM
• Date of judgment: 28 October 2022

Dani Bass (trainee) assisted in the preparation of this article