InterDigital Technology Corporation & Ors v Lenovo Group Ltd & Ors

An embargo on an unhanded-down draft judgment confines disclosure to the parties and their legal representatives for the permitted purposes. Disclosure of the outcome to external lawyers who do not fall within that group breaches the embargo.

A breach may amount to contempt even where there was no intention to flout the embargo, although the court did not resolve the strict-liability issue. Whether to commence contempt proceedings remains a proportionate response. Limited confidential disclosure, no public release, prompt self-reporting, acceptance of responsibility and an effective apology may make further proceedings unnecessary.

The underlying proceedings concerned the validity and essentiality of InterDigital’s patent EP (UK) 2 485 558. HHJ Hacon held the patent valid and essential in [2021] EWHC 2152 (Pat). Lenovo appealed.

After the Court of Appeal circulated draft judgments in that appeal under the PD40E embargo, an InterDigital employee disclosed the outcome to external United States lawyers. The substantive appeal was later dismissed in [2023] EWCA Civ 34. This judgment addressed whether the embargo breach justified contempt proceedings.

1. No further contempt proceedings were commenced. The Court accepted that the disclosure breached the embargo. The draft judgment and its outcome could be disclosed only to the parties and their legal representatives for the specified purposes. Wilson Sonsini were neither parties nor InterDigital’s legal representatives for that purpose. Their receipt of the outcome was therefore unauthorised.

2. The Court reaffirmed the importance of the PD40E embargo, consistently with R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181. It protects the orderly and appropriate public release of judgments. Paragraph 2.8 of PD40E provides that a breach may be treated as contempt.

3. Applying CPR 81.6(1), the first question was whether a contempt may have been committed. Although there was no intention to flout the embargo and the employee did not understand its full terms, the Court considered that contempt might have occurred. It did not decide the wider question whether liability for this kind of contempt is strict.

4. Further action was nevertheless disproportionate. The disclosure was limited in content and recipients, did not include the draft judgment, remained confidential, and caused no public disclosure. The breach was promptly investigated and voluntarily disclosed to the Court. The responsible individual accepted responsibility, apologised, and understood the error. Those matters removed any sufficient need for further proceedings to uphold the Court’s authority.

• Court of Appeal (Civil Division): In this post-judgment decision, the Court found a breach of the draft-judgment embargo but declined to initiate further contempt proceedings. The substantive patent appeal had previously been dismissed in [2023] EWCA Civ 34.
• High Court, Patents Court: HHJ Hacon held the patent valid and essential: [2021] EWHC 2152 (Pat).