ANOTHER BREACH OF THE EMBARGO ON A DRAFT JUDGMENT: REMEMBER THIS IS A CONTEMPT OF COURT

In John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC 594 (TCC) HHJ Stephen Davies (sitting as a High Court Judge) found that a party had breached the rules relating to the embargo on a draft judgment.  The case serves as a reminder that breaching this embargo is a contempt of court.

“These restrictions and consequences ought by now to be well-known amongst the legal profession, especially given the guidance provided by Sir Geoffrey Vos, M.R. in R. (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 and the warning in that case (paragraph 31) that “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”.

THE CASE

The judge had sent out a draft judgment in a case relating to a contractual dispute between the parties. That draft was subject to the usual embargo in relation to draft judgments. However it transpired that certain of the defendant’s agents were aware of the result of the judgment.

THE JUDGMENT ON THIS ISSUE

The judge required an explanation as to how the embargo had been breached.

1. 1. Following circulation of the judgment in draft it emerged that the outcome had been notified to, and the draft had been shared with, representatives of C&C’s agents, Arcadis and Cinns (both referred to above) as well as to its planning representatives. This emerged because representatives of Arcadis, who had not seen the judgment but had been informed that Sisk had “won”, mentioned this to Sisk’s representatives at a planned meeting when Sisk’s representatives were unaware of such fact, because Sisk had complied with the embargo.

1. 1. I asked for and have received a full explanation from C&C’s solicitor as to how and why this happened, who has also clarified that the draft judgment had not been read by anyone outside C&C and confirmed that urgent steps had been taken to ensure that everyone was made fully aware of the embargo.

1. 1. It appears that the principal reasons for the breach were, first, the failure by C&C’s solicitor to appreciate (and, thus, advise C&C) that the draft could not be shared with its external representatives, even though they were within a confidentiality group formed by C&C and, second, to ensure that they were specifically made aware of the restrictions on sharing the draft judgment or the potentially serious consequences of so doing.

1. 1. These restrictions and consequences ought by now to be well-known amongst the legal profession, especially given the guidance provided by Sir Geoffrey Vos, M.R. in R. (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 and the warning in that case (paragraph 31) that “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”.

1. 1. However, as well as receiving this full explanation, I have also received a very full apology from the solicitor concerned as well as apologies for those within C&C who breached the embargo. The solicitor concerned has also offered to cut short a trip abroad to attend before me in person to reiterate his explanation and his apology in person if required. In the circumstances, I accept the explanation and apology and do not propose to take any further action.

1. Finally, and even though this is not raised by way of mitigation, I should also record that due to an error on my part the confidentiality warning which appeared at the top of the draft judgment was an out-of-date version which did not state explicitly, as does the current version, that: (a) “this is a draft judgment to which CPR Practice Direction 40E applies”; (b) “neither the draft itself nor its substance may be disclosed to any other person or made public in any way”; (c) “the parties must take all reasonable steps to ensure that it is kept confidential“, that “as explained in Counsel General v. BEIS (No. 2) [2022] EWCA Civ 181, the draft judgment is only to be used to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and draft orders and to prepare themselves for the publication of the judgment”; and, finally, (d) “a breach of any of these obligations may be treated as a contempt of court”. If it had done, I might not have been prepared to take such a lenient course.