Embargo confusion after draft judgment was sent to press
The High Court has ruled that international firm Fieldfisher will not face contempt of court proceedings after a confidential judgment was wrongly sent to journalists ahead of its official hand-down date.
The incident involved the circulation of a confidential embargoed draft judgment (CEDJ) in a high-profile judicial review case concerning the death of a 16-year-old boy. Mr Justice Fordham, formerly of Blackstone Chambers, described this as a “serious error” – which can lead to contempt of court, a criminal offence.
Fieldfisher, which acted for the deceased boy’s family, sent the CEDJ to journalists from the BBC, Guardian, Daily Telegraph, and ITV – some days before it was due to be made public. The court heard that Nicola Pearson, Fieldfisher’s media manager, treated the court embargo like a regular press embargo.
A court embargo, including a CEDJ, is highly confidential and private to the court – breaching an embargoed judgement can find those responsible in contempt of court. Meanwhile, a press embargo is not legally binding. It involves sharing information with journalists before it is made widely public, on the understanding it’s not published until a set time.
Pearson sent the judgment along with press quotes, assuming it was permissible under those terms.
In the judgment, under a section called “A Big Mistake”, Fordham stressed that Pearson, who is not a lawyer, “understood ‘embargo’ to indicate that it was permissible to circulate the CEDJ to journalists”. Until the judgment is officially handed down as a public document, court embargoes are “expressly ‘confidential to the parties and their legal representatives’”.
The court was shown an email from Jill Greenfield, the Fieldfisher partner overseeing the case, which read, “I am not sure what the rules are for giving it to press before Thursday – it has to be very clear that it is embargoed whatever”.” Pearson had also organised a marketing video interview given by Greenfield.
Greenfield had told the deceased boy’s family not to discuss the judgment with anyone, though Pearson had contradicted this. After separately conducting an interview with a journalist from The Guardian, though, the judgment explains Greenfield sought advice from Andrew Dodd, Fieldfisher’s general counsel.
Dodd explained to Greenfield and Pearson what the court embargo meant. But he did not go far enough in his instructions, the court heard, and did not seek “a prompt and clear picture of exactly what had happened”. Dodd also failed to contact barristers on the case nor notify the court. Parties are expected to inform the court of such breaches at once.The Court became aware of the breach as journalists contacted them for comment and informed Fieldfisher.”
The judge said he was “particularly concerned” that Pearson sent the fourth of the four emails attaching the CEDJ “after the telephone call with Mr Dodd and Ms Greenfield… at which Mr Dodd had made clear that the CEDJ could not be sent to journalists.” Fordham had “real difficulties” with Pearson’s explanation this had been a mistake, however decided not to make a finding of fact.
In deciding to take no further action, Fordham concluded his ruling with:
“I am satisfied, having issued this judgment, that further steps are neither necessary nor proportionate. The primary purpose of contempt proceedings – to secure compliance with the Court Embargo – stands achieved. The seriousness with which the Court treats these matters stands fully communicated and acknowledged… So far as the Court is concerned, this judgment is enough. The enquiry has been undertaken. Sufficient clarity has been achieved. Lessons will have been learned.”
