Steven Ellis & Ors v John Benson Limited

An embargoed draft judgment may be used only for correcting errors, preparing consequential submissions and preparing for hand-down. Disclosure to witnesses or other non-parties is outside that permission. Courts assess breaches by considering aggravating and mitigating circumstances, including the nature and extent of disclosure, the sensitivity of the information, prompt remedial steps, undertakings, cooperation and apology. A mistaken belief may mitigate a breach but does not excuse an unreasonable misunderstanding of who is a party. Committal proceedings may be declined where prompt steps have limited the impact and the circumstances do not warrant further action.

The defendant’s principal disclosed the outcome of an embargoed draft judgment to the defendant’s witnesses before hand-down, mistakenly believing that they were parties. Some information subsequently appears to have reached non-witnesses.

The court considered the scope of the embargo, whether privilege had been lost, the seriousness and mitigation of the breach, and whether committal proceedings or other action should follow.

1. The permission to send a draft judgment to parties did not permit the judgment, its substance or its effect to be communicated to witnesses. The draft could be used only for correcting errors, preparing consequential submissions and preparing for publication. Each recipient must understand who is entitled to see the draft and the limited purposes for which it may be used.
2. Legal representatives should identify specifically who is and is not a party, particularly where a party is a corporate body, partnership or unincorporated association. Every permitted recipient should be informed and advised about the embargo, and guidance should be sought where there is doubt.
3. Disclosure of privileged information to a third party in confidential circumstances would not usually waive privilege against the world. The breach did not necessarily produce a different result. The court could assess the seriousness of the breach without sight of the unredacted email.
4. The breach was aggravated by the unreasonable assumption that witnesses were parties, the failure to tell them about the embargo and apparent onward disclosure. It was mitigated by the absence of price-sensitive or highly personal information, prompt solicitors’ intervention, explanation, efforts to obtain undertakings and an unreserved apology.
5. In the circumstances, the court declined to initiate committal proceedings. No further action was taken of the court’s own motion, and the draft judgment remained embargoed pending final approval and hand-down of the main judgment.