Embargoed judgments: when being too early can land you in court
An important tool in your marketing toolbox is communicating about the wins of your teams. The bigger, more complex, high-profile and high-value the case, the better. In an era where information is at our fingertips almost instantaneously, the pressure on marketing teams to be the first to report on such wins is tremendous.
In a desire to ‘own the story’, marketing and communications teams work on turning the judgments into press releases, blogs, commissioned articles – and need to do so fast!
Over the years the dial has shifted, with comment pieces being uploaded on websites, or appearing in legal journals literally minutes after the judgment was made public. It has become evident that firms have been applying a wide range of interpretations as to how to deal with embargoed judgments and by whom. Boundaries were pushed in an effort to be the first in breaking news, an area where it clearly doesn’t pay to be second.
Not often are marketing actions the topic of news but everyone remembers the story where a set of barristers was ticked off because they had chosen not to discuss certain outcomes of the case in their blog which may have led some readers to conclude they had won, whereas in effect they had lost the case.
This time, trouble brewed again. In February, the Court of Appeal issued a judgment on contempt of court in relation to embargoed judgments in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy  EWCA. This decision should not go unnoticed as it relates to an issue all marketers are being confronted with: how an embargoed judgment should be handled by lawyers and non-lawyers in a way that doesn’t breach the rules of the court concerned.
A draft judgment was sent to the lawyers acting for the parties a few days before it became public. At this point it was subject to the usual embargo not to make the judgment public before the judge hands it down. The court’s instructions included the following wording:
“This draft is confidential to the parties and to their legal representatives. Neither the draft nor its substance may be disclosed to any other person or made public in any way. The parties must take all reasonable steps to ensure that it is kept confidential. No action is to be taken (other than internally) in response to the draft before judgment has been handed down in court. A breach of any of these obligations may be treated as contempt of court.”
Breach of embargo
The set of chambers at the centre of this case were acting for one of the parties and there was confusion internally about when the judgment was going to be handed down. Their marketing team had told two of the barristers on the case in two separate emails that they were going to put the piece up and the barristers had mistakenly authorised it, failing to spot the error in the date.
The news item was made public to their over 21,000 followers and others on both LinkedIn and Twitter, the day before the judgment was due to be handed down. The alert stayed up for around 5 hours, until it was noted by others involved in the case and deleted. The chambers concerned then advised the court of the accidental publication of the contents of the judgment in breach of the embargo.
The Master of the Rolls, Sir Geoffrey Vos, called the case into court for a hearing specifically to address the violation of the embargo. The barristers involved both accepted responsibility for the breach and apologised to the court. Both the barristers and the marketing team involved had to provide witness statements to the court on what had happened and the internal email chain was provided to the court.
Sir Geoffrey Vos pointed out that that there have been a number of similar breaches of embargoes and gave a fully reasoned judgment on the breach of the embargo in this case. He explained that the English courts make draft judgments available to the parties for a limited number of permitted purposes. These are for the parties to highlight any errors in the judgment, prepare submissions, agree relevant orders and prepare for hand down of the judgment. Only these particular “legitimate activities” can be undertaken in relation to the draft judgment.
The key practical points arising from the judgment are that:
- Embargoed judgments are the personal responsibility of the lawyers who get them.
- They should not be circulated within law firms or chambers beyond the team dealing with the judgment for the purposes for which it is released. They should not be circulated to either lawyers or non-lawyers unless it is for one of the legitimate activities.
- In practice, this means embargoed judgments should not be circulated beyond the case team unless there is a legitimate case-related reason within the permitted purposes.
- Best practice will be to keep the embargoed judgment within a small named group on the case team. It would be inappropriate for the outcome or judgment to be circulated to a wider circle of junior people who have been involved in the case from time to time, for example.
- In relation to barristers’ chambers, the judgment notes it should be sufficient for one named clerk to have access to the judgment in order to liaise between barristers and the court for administrative purposes.
- The result should not be communicated before hand down to marketing or knowledge teams, or to other business services staff and the judgment should not be shared.
- Sir Geoffrey Vos expressly said that ‘legitimate activity’ does not include drafting a press release, so it is not permissible for the lawyers to draft a press release based on the embargoed judgment before the judgment is handed down.
The Court of Appeal also said that “proper precautions and double-checks need to be in place in barristers' Chambers and solicitors’ offices to ensure that errors come to attention before the embargo is breached, and…in future, those who break embargoes can expect to find themselves the subject of contempt proceedings...”
Expecting a judgment?
Law firms and chambers will no doubt check and revise their policies in relation to the treatment of embargoed judgments as part of their marketing efforts. Marketing teams will want to ensure that all lawyers – as well as their external PR advisers - are aware of the appropriate approach.
This recent Court of Appeal decision does not prevent marketing teams, continuing to work with lawyers to outline draft press releases or put together part of blogs or articles before the team receives an embargoed judgment. As we all know, the background and known facts of the case are often part of such content. Nor does it prevent anyone considering what the consequences of different outcomes might be.
But as soon as the embargoed judgment is received, all such work must stop and cannot restart until the decision is made public.
The decision is clear: the legitimate purposes for access to an embargoed judgment are limited and are all legal and case-related. Marketing or knowledge-related reasons do not count.
By forcing marketing teams to wait, one welcome outcome is that we are no longer feeding the news frenzy. At first blush, it seems this decision may make our lives more difficult. But, as highlighted above, we can still work smart and prepare some of the draft marketing content which will then be ready to be finalised relatively quickly after the decision has been made public. We feel that this judgment places firms on a more equal footing: it does not matter how mighty one firm’s PR machine is, all communication professionals will have to sit tight until the judgment is released and only then can they report on the outcome of the decision.
The article was first published by pm (professional marketing magazine for PM Forum members), Volume 29, Issue 9, May 2022.