Helen Kinsey, R (on the application of) v London Borough of Lewisham

A party receiving a confidential embargoed draft judgment may circulate it, or communicate its outcome, internally only where there is a genuine need connected with correcting errors, preparing consequential submissions, or preparing for publication. The need must be carefully identified and recorded. Communication merely for interest or information is impermissible.

A corporate party may prepare a press release for immediate issue after hand-down. It must not send substantive content from the draft judgment to the press before hand-down, even if the release carries a separate media embargo and is not yet available to the public.

The judgment concerned an alleged breach of the embargo applying to a confidential embargoed draft judgment in earlier judicial review proceedings. The Defendant had circulated the draft judgment and its outcome to officers, elected members and communications staff. It had also sent a press release containing substantive information from the draft judgment to 17 media contacts 45 minutes before hand-down, marked with its own reporting embargo.

The parties agreed that no hearing was necessary. The Court considered whether the internal communications breached the court embargo, whether preparation of the press release was permissible, and whether the pre-hand-down press release constituted contempt. No finding of contempt was invited.

1. Internal circulation. A confidential embargoed draft judgment and its outcome must not be communicated merely for interest or information. Circulation may be justified where the recipient has a genuine need to know for the purposes for which the draft was distributed, including preparation for publication. The need must be assessed conscientiously, kept within strict confidentiality, and recorded in advance. If doubt remains, the Court’s permission should be sought. On the evidence, the Defendant’s internal distribution was justified and did not breach the embargo.
2. Preparation of press material. A corporate party may prepare a press release before hand-down so that it can be issued promptly afterwards. That preparatory activity is permissible where it is directed to informing the public immediately after publication. The restriction on pre-hand-down publicity is different from an ordinary media embargo.
3. Embargoed press release. Sending the press release to media contacts before hand-down, while prohibiting publication until the scheduled time, breached the Court’s embargo. The breach was established notwithstanding that the recipients were members of the press rather than the public, the release was sent only 45 minutes early, it carried its own embargo, and no reporting occurred before hand-down. The relevant restriction was the court embargo, not the Defendant’s ordinary media practice.
4. The breach was recorded. No finding of contempt was made, and no further order was necessary.