The Public Institution for Social Security v Banque Pictet & CIE SA & Ors.

A draft judgment supplied under embargo may be used only to correct errors, prepare submissions, agree consequential orders and prepare for publication. Its contents or substance cannot be communicated for other purposes without the court’s consent.

Disclosure to colleagues who are not conducting the litigation and whose involvement is unnecessary for those permitted purposes breaches the embargo. Recipients must exercise particular care when using electronic messaging. Any breach must be reported to the court as soon as it is identified.

After the Court of Appeal had dismissed an appeal in [2022] EWCA Civ 29, information revealing the outcome appeared on social media before formal hand-down. Enquiries did not identify the source of that disclosure.

A solicitor acting for one respondent separately disclosed the result. He inadvertently sent it to a group of 41 international lawyers and deliberately informed senior partners who were not involved in the litigation. The court considered whether those communications breached the embargo and whether further action should be taken.

1. No further proceedings were required. The premature social-media publication plainly involved one or more serious breaches of the embargo. The evidence did not identify the person responsible. Complex, expensive and probably fruitless enquiries initiated by the court would not be appropriate, particularly where no party had pursued a contempt application.
2. A draft judgment released under embargo may be used only to enable correction of errors, preparation of submissions, agreement of consequential orders and preparation for publication. Disseminating the judgment or its substance for another purpose is prohibited unless the court expressly consents. The embargo is an order of the court and must be treated accordingly.
3. The solicitor breached the embargo when he inadvertently sent the result to 41 international lawyers. He committed a further breach by communicating the result to partners who were not conducting the litigation. Their membership of the same firm did not bring the communication within the narrow permitted purposes, because their input was unnecessary for those purposes.
4. Recipients must exercise utmost care when communicating electronically about an embargoed judgment. Electronic messaging demands greater attention to recipients and content because an error can disseminate confidential information immediately. A breach must be reported to the court as soon as it is identified.
5. The mistaken group message was deleted before damage occurred, the solicitor apologised fully, and no connection was suggested between his messages and the social-media publications. Taking those matters into account, together with the fact that the recent guidance in R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 had not been available at the time, publication of this judgment was a sufficient response.

1. Court of Appeal (Civil Division): In the substantive appeal, the court dismissed the claimant’s appeal in [2022] EWCA Civ 29. It subsequently determined the breaches of the embargo in the present judgment and ordered no further steps beyond publication.
2. High Court, Commercial Court: Henshaw J held in [2020] EWHC 2979 (Comm) that the court lacked jurisdiction to try claims against eight defendants and would decline to exercise jurisdiction over two further defendants.