Varsha Gohil v Bhadresh Babulal Gohil & Ors

Rules governing disclosure of draft judgments under embargo should be clear and harmonised across the King’s Bench Division, Family Division and Crown Court. Where the applicable rules and rubric do not clearly identify disclosure as prohibited or contemptuous, it is undesirable to derive contempt liability from ambiguous or implied language. The inconsistent position meant that disclosure of a draft judgment could clearly amount to contempt in the King’s Bench Division, might do so in the Family Division, and would probably not do so in the Crown Court. The court directed that its judgment be sent to the three relevant Rule Committees for consideration of harmonised rules.

The wife’s long-running financial remedies proceedings followed the setting aside of a consent order for the husband’s non-disclosure. The husband had been convicted of money laundering and was subject to confiscation proceedings under the Proceeds of Crime Act 2002. Draft findings in those proceedings were circulated without a clear confidentiality or embargo rubric.

The issue before the court was whether the different arrangements for draft judgments in the King’s Bench Division, Family Division and Crown Court created materially different and uncertain consequences for disclosure, including possible contempt of court.

1. Different regimes. In the King’s Bench Division, Civil Procedure Rules Practice Direction 40E expressly restricts disclosure and provides that breach may be treated as contempt. The standard draft rubric reinforces those restrictions. The Court of Appeal decision in R (on the application of the Counsel General for Wales) v The Secretary of State for Business, Energy and Industrial Strategy, [2022] EWCA Civ 18, illustrated the seriousness with which misuse of an embargoed draft judgment is treated.
2. Family Division. There is no equivalent provision in the Family Procedure Rules. The family rubric prohibits communication except to clients, but does not expressly state that breach is contempt. The prohibition may have an injunctive character, yet it is highly undesirable that contempt liability should derive from ambiguous language.
3. Crown Court. Draft written rulings are routinely circulated for correction, but no rule, practice direction or warning rubric regulates their use. Although a prohibition might be inferred from the established treatment of embargoed judgments, it is strongly arguable that contempt cannot arise from an implied, unwritten embargo.
4. Conclusion and direction. The resulting differences were arbitrary and completely unacceptable. The court directed that the judgment be sent to the Civil Procedure Rule Committee, Family Procedure Rule Committee and Criminal Procedure Rule Committee, requesting harmonisation of the rules on embargoed draft judgments.
5. Related confiscation proceedings. The court noted that the approach in Webber v Webber, [2007] 1 WLR 1052, offered a plausible procedural route whereby the CPS would agree not to enforce confiscation orders pending determination of the wife’s financial claims, followed by an application to vary the restraint order. That issue was left to the judge subsequently allocated to manage the case.