Case No. EWHC-1023-(IPEC)

2.The embargo applies by reason of para.2.4 of Practice Direction 40E to the Civil Procedure Rules, which provides that: “A copy of the draft judgment may be supplied, in confidence, to the parties provided that— (a) neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and (b) no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down.”3.The serious nature of this embargo is clear from the decision of the Court of Appeal 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 181 (“the CGW case”). In that case, Sir Geoffrey Vos MR, having reviewed the relevant law, at [24], stated that:“It is important, therefore, to understand why judgments are handed down in draft under embargo in the first place. Some insight is gained from the passage cited above from Crosland.1 That suggests that the process is to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment. The process is not for any other purpose and dissemination of the judgment or its substance beyond those that I have specifically mentioned is forbidden (unless the court expressly gives consent).”And, at [29], that:“It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that [the mandatory provisions of CPR PD40E] are complied with.”Finally, at [31(v)], he commented that:“…in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E.”4.The Court of Appeal revisited the issue more recently in The Public Institution for Social Security v Banque Pictet & Cie SA [2022] EWCA Civ 368 (“the Banque Pictet case”) where, notwithstanding the final comment of Sir Geoffrey Vos MR in the CGW case, it decided against initiating any contempt proceedings. The case concerned some breaches of an embargo where the culprit was unidentifiable and the court decided that it would probably be a fruitless exercise for it to initiate further action. The case also concerned a breach of the embargo by a lawyer for one of the parties who had sent a WhatsApp message stating that “we just won” to various fellow partners in his firm and (by mistake) to 41 international lawyers. In respect of this, the court decided not to take further action because the person concerned had provided a full apology and, as regards his disclosure to the 41 international lawyers, the breach was due to an inadvertent error which he had corrected before any damage had been done.