Bernadette Rogers v Andrew Wills

A draft judgment circulated under embargo may be used only for correcting errors, preparing consequential orders or submissions, and preparing for publication. The embargo applies to the whole judgment, every part of it, short quotations and, unless expressly permitted otherwise, its substance. A potential breach must be reported to the court promptly. A person who receives an embargoed judgment but is uncertain whether they are entitled to read it must stop and seek clarification. Breach may amount to a serious legal matter capable of engaging contempt proceedings. The court retains a discretion as to further action. Relevant considerations include whether the breach was deliberate, whether the material was transmitted further, whether real harm resulted and the parties’ positions.

The court had previously circulated a draft judgment to the parties and their legal representatives under an express confidentiality embargo. The claimant was entitled to receive it, but it was inadvertently forwarded to her husband, who was a witness and therefore a third party. The claimant and her husband read the draft together to identify possible typographical errors. Neither deliberately disclosed it further, and the claimant’s solicitors promptly reported the incident and apologised.

The issue was what, if any, further steps the court should take in response to the inadvertent disclosure and the failure of the claimant and her husband to seek clarification before reading the draft.

1. The claimant was entitled to receive and consider the draft judgment for the limited purposes permitted by the embargo. Her husband was not a party or legal representative and was not entitled to read it.

2. Draft judgments are circulated under embargo to facilitate correction of errors, agreement or preparation of consequential orders, submissions on consequential matters, and preparation for publication: R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [24].

3. The prohibition extends to disclosure of the whole judgment, any part of it and short quotations. Unless the embargo permits it, the substance of the judgment must also remain undisclosed until publication: R (Glaister & Carr) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), [21]; R (Kinsey) v Lewisham LBC [2022] EWHC 2723 (Admin), [11].

4. A potential breach is serious and may lead to contempt proceedings. It must be reported to the court as soon as it is discovered: Optis Cellular Technology Inc v Apple Retail UK Ltd [2021] EWHC 2694 (Pat); Public Institution for Social Security v Banque Pictet [2022] EWCA Civ 368, [10](vi); Match Group LLC v Muzmatch [2022] EWHC 1023 (IPEC), [39]; R (Glaister & Carr) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), [7].

5. The claimant and her husband were culpable in failing to read or act upon the express embargo. The claimant’s failure arose from ignorance rather than deliberate disclosure. The husband’s failure was more serious because he knew he was not a party and should have sought clarification.

6. No further action was taken. The court accepted that the disclosure was inadvertent, that the draft had not been transmitted to anyone else, that no real harm had resulted and that the defendant made no specific application for steps to be taken. The court warned that greater sanctions might follow a future breach.

The judgment records that the same court had handed down an earlier judgment in the proceedings on 6 June 2025: [2025] EWHC 1367 (Ch). The present judgment concerned the subsequent embargo issue.