O'Connell v Rollings & Ors (Administrators of Musion Systems Ltd)

A draft judgment supplied before hand-down is confidential. It may be used for the limited purposes of suggesting amendments, preparing consequential orders and making submissions about those orders, costs or permission to appeal. It must not be published or disclosed to third parties without the court’s consent. Breach of the embargo is serious because it interferes with the administration of justice. Inadvertence and unreserved apologies may affect the court’s response, but do not prevent an order requiring the responsible party to pay the costs caused by the breach on an indemnity basis.

The Court of Appeal was hearing an appeal from the Companies Court in proceedings involving Ian O’Connell and the joint administrators of Musion Systems Ltd. During the appeal, the respondents’ solicitors and the first respondent disclosed the substance of the draft judgment to Musion Das Hologram, which had partly funded the respondents’ costs. Further disclosures followed. The disclosures were accepted to have been inadvertent and unintentional. This judgment addressed the appropriate response to the clear breach of the confidentiality embargo.

1. A draft judgment provided before hand-down remains a draft. The judge may amend it before hand-down following communications or suggestions from counsel, or on the judge’s own initiative. Its confidential nature therefore prevents publication or disclosure to third parties without the court’s consent, subject to the limited purposes for which the draft is supplied.
2. The confidentiality embargo must be respected by litigants and those representing them. Breach is a very serious matter because it interferes with the administration of justice and with the court’s ability to deal with cases justly and at proportionate cost.
3. The disclosures by the respondents’ solicitors and the first respondent constituted clear breaches. The Court expressed its strongest disapproval, describing the conduct as displaying a casual approach to a court direction. The fact that the breaches were inadvertent, together with the unreserved apologies, was relevant to the appropriate course.
4. The appellant was awarded his costs of the appearances required because of the breaches, together with the costs of and occasioned by the breaches, on an indemnity basis.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 806, the court addressed the breach of the draft-judgment embargo and ordered the respondents to pay the appellant’s relevant costs on an indemnity basis.
• High Court of Justice, Chancery Division, Companies Court: The appeal was brought from proceedings before the Companies Court. No citation or substantive decision of the lower court is stated in the judgment.