Match Group, LLC & Ors v Muzmatch Limited & Anor

An embargo on a draft judgment is a court order. Disclosure is permitted only for the legitimate purposes of correcting errors, preparing submissions, agreeing consequential orders and preparing for publication. Necessary internal disclosure may be permitted, but recipients must be limited to those who genuinely need to know. Providing the judgment’s substance or an embargoed press release to journalists before hand-down is a breach, even where the journalists agree not to publish. The court should consider the seriousness of the breach, its circumstances, any apology and whether contempt proceedings are necessary. Courts will view critically any attempt to manage publicity which causes an embargo to be breached.

The judgment concerned a breach of the embargo imposed on a draft judgment in earlier trade mark infringement and passing off proceedings. The defendants’ solicitor gave clear advice about confidentiality and took steps to restrict disclosure. The defendant nevertheless disclosed the outcome internally and supplied an embargoed press release and related information to journalists before formal hand-down.

The court considered whether the internal disclosures were permissible, whether the press disclosures amounted to a serious breach, and whether contempt proceedings or other immediate action were required. The parties dealt with the matter on the papers. The claimant did not intend to initiate contempt proceedings.

1. The court applied paragraph 2.4 of Practice Direction 40E to the Civil Procedure Rules. The permitted purposes of disclosure are correcting errors, preparing submissions, agreeing consequential orders and preparing for publication. The embargo does not prohibit necessary internal action undertaken for those purposes.

2. Disclosure to employees involved in preparing a press release, considering technical or design implications, or preparing a post-hand-down statement was permissible on the facts. The court emphasised that recipients should be confined to those who genuinely need to know. Increasing the number of recipients increases the risk of an unlawful disclosure.

3. The preparation of an embargoed press release was not inherently improper. Sending it to journalists before hand-down, however, and communicating the result and intended appeal to them, breached the embargo. Journalists’ agreement not to publish did not make the disclosure permissible.

4. The breach was serious, but the court accepted the defendant’s apology and treated the conduct as a genuine mistake rather than an intentional and knowing breach. Following the approach in Optis v Apple, the court considered that expressing the seriousness of the breach in the judgment was sufficient. It therefore took no further action and did not initiate contempt proceedings.

5. The court reiterated that recipients must understand the breadth of an embargo, exercise utmost care when using electronic communications, and notify the court promptly of any breach. It gave a preliminary indication that costs might properly be addressed under the relevant provisions of Civil Procedure Rules at the form of order hearing.