Baigent v Random House & Anor

Draft judgments circulated under the applicable Practice Direction remain confidential and embargoed until formally handed down, unless the court makes a special order. Recipients may discuss them only on the specified confidential terms and must take no step on the basis of the draft before it becomes final. Publication may amount to contempt of court. The court retains discretion whether to pursue an apparent breach, taking account of the seriousness of the publication, its timing, the damage caused, remedial steps and the interests of justice.

The judgment arose after “The Lawyer” published information about the result of litigation shortly before judgment was formally handed down. The court considered the operation of the new Practice Direction governing draft judgments, the publication’s possible contempt consequences, the explanations and apology offered by the journalists, the removal of the website entry and the issue of identifying the journalists’ sources.

The central issue was whether the matter should be pursued further in circumstances where the court accepted the explanations, regarded the damage as insignificant and noted remedial measures.

1. Confidentiality and embargo. The Practice Direction permitted lawyers to discuss draft judgments with their clients and other appropriate persons, but only on terms that the judgment remained confidential, was still a draft and was ineffective until pronounced. Recipients were also required to take no step on the basis of the draft before it became final.
2. Publication and contempt. Draft judgments circulated under the Practice Direction were embargoed until official hand-down. Publication before that time could be regarded as contempt of court. The court emphasised that journalists should understand the legal effect of the embargo and that serious breaches could have severe consequences.
3. Discretion to take further action. The court accepted that there was an argument that “The Lawyer” had not acted in contempt. It accepted the explanations given, the apology, the removal of the website entry and steps to train journalists. The damage caused was not significant, possibly because publication occurred close to hand-down and was promptly removed.
4. Disposition. In those circumstances, the court concluded that it was not in the interests of justice to pursue the matter further or to seek to identify the journalist’s sources. The court expressly stated that this did not determine that “The Lawyer” was in breach. It warned that abuse of the draft-judgment mechanism could lead to its withdrawal, inconveniencing litigants by reverting to the former practice.