DRAFT JUDGMENTS MUST NOT BE DISCLOSED: COURT OF APPEAL EXPRESSES ITS VIEWS IN STRONGEST POSSIBLE TERMS
Draft judgments are often sent to parties in advance. These are sent on confidential terms in O’Connell -v- Rollings  EWCA Civ 806 the Court of Appeal made it clear that wider disclosure of drafts should not be made.
Lord Justice Kitchin:
- It is important that all litigants and those representing them appreciate that the confidentiality embargo attaching to draft judgments must be respected. The judgment is provided by the court in draft to promote the effective administration of justice. It permits counsel to draw to the attention of the court minor amendments that they believe should be made to the draft, to prepare drafts of consequential orders they propose inviting the court to make, and to prepare submissions in relation to any disputed aspects of those draft orders including costs and any request for permission to appeal.
- Self-evidently, however, the document so provided is no more than a draft. A judge may correct the draft at any time before hand down as a result of any communication or suggestion from counsel, or indeed of his or her own initiative. Plainly, therefore, the draft must not be published to third parties before hand down without the consent of the court. If the parties or those advising them are in any doubt about whether a proposed disclosure falls within the scope of the embargo, they should contact the judge and ask for permission.
- It also follows that any breach of the embargo is a very serious matter. It necessarily interferes with the administration of justice and the efforts of judges to deal with the cases before them justly and at proportionate cost.
- In this case there has been a clear breach of the embargo. We have before us witness statements of Mr. Rupert Connell and Miss Merley Okine of Speechly Bircham LLP, the respondents’ solicitors, and from Mr. Michael Rollings, the first respondent. Miss Okine explains that on 12 May 2014 she notified Olswang LLP, the solicitors for Musion Das Hologram (“MDH”) that, as she put it, “the appeal had been dismissed”. She continues that she did so because MDH had partly funded the respondents’ appeal costs and the respondents were under an obligation to keep MDH apprised of developments in the appeal. This breach was, she says, inadvertent and unintentional, and she apologises unreservedly, as does Mr. Connell.
- Mr. Rollings also disclosed the substance of the draft, in his case to Mr. Palmer of MDH and he did so both on 12th and 14th May 2014. Once again, Mr. Rollings says that he now appreciates he has acted in breach of the embargo, but he did so because he did not notice the embargo on the front of the draft judgment and so failed to appreciate its confidential nature. He too apologises unreservedly. It seems that Mr. Palmer in turn disclosed the substance of the draft to various other persons, including his father, his personal assistant at MDH, Mr. Uwe Maass, and a number of potential investors.
- We wish to express our disapproval of these breaches in the strongest possible terms. They display what we consider to be a casual approach to a direction of the court, which we deplore. Nevertheless, we recognise that they were inadvertent, and in the light of the apologies we have received we are satisfied that the appropriate course to take in respect of them is to ensure that Mr. O’Connell, the appellant, should have his costs of the appearances before us today necessitated by these breaches, and also his costs of and occasioned by the breaches in so far as he and those he has instructed have had to deal with them. He should have those costs on an indemnity basis.