The Counsel General for Wales, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy (No 2)

An embargoed draft judgment, and its substance, must remain confidential until hand-down. CPR PD40E permits circulation only for correcting errors, dealing with consequential matters, and allowing parties to prepare for publication. Counsel and solicitors bear personal responsibility for compliance.

Chambers staff should receive neither the draft nor a summary unless access is genuinely required for a permitted purpose. Preparing publicity material for chambers is not a permitted purpose. Effective safeguards and checks must prevent premature publication. A short embargo is a necessary and proportionate restriction which protects the authority, accuracy and orderly publication of judicial decisions. Future breaches may lead to contempt proceedings.

The court considered a premature publication of the outcome and substance of an embargoed draft judgment. The draft had been circulated to counsel under the usual confidentiality terms before hand-down. A marketing assistant at counsel’s chambers posted a press release on the chambers’ website and social-media accounts almost 24 hours before hand-down. The material was removed about five hours later.

After receiving explanations and witness statements from counsel and chambers staff, the court held a hearing to determine what had happened and the consequences. The appeal shown on the cover sheet originated in the Divisional Court decision, [2021] EWHC 950 (Admin). The central issue in this judgment was the proper observance and scope of the embargo imposed by CPR PD40E.

1. The court unanimously held that the embargo requirements in CPR PD40E were mandatory and had been breached. The draft judgment and its substance could not be disclosed or used publicly before hand-down. Counsel and solicitors were personally responsible to the court for ensuring compliance.

2. The permitted purposes of pre-hand-down circulation were confined to correcting errors, preparing submissions and agreed consequential orders, and allowing parties to prepare for publication. The court adopted the reasoning in HM Attorney General v Crosland [2021] UKSC 58: the short embargo was a necessary and proportionate restriction which protected the authority of the judiciary and ensured that judgments were accurate, complete and final when published.

3. It was not appropriate for chambers’ clerks or administrative staff to receive the draft or a summary of its contents unless this was genuinely needed for a permitted purpose. Drafting a press release to publicise chambers was not a legitimate internal activity during the embargo. A named clerk could provide the necessary link between the court and counsel, but chambers and solicitors’ offices required effective precautions and double-checks.

4. The court stressed that the seriousness of a breach would depend on the nature of the judgment and the information disclosed. It nevertheless gave a clear warning that future breaches could result in contempt proceedings under paragraph 2.8 of CPR PD40E.

• Court of Appeal (Civil Division): The court delivered this judgment concerning the breach of the embargo on an approved draft judgment.

• High Court, Divisional Court: The cover sheet identifies the underlying decision as [2021] EWHC 950 (Admin) .