The quandary of whether to prepare a judgment statement or not
Anyone who works in legal PR will be able to tell you the importance of successful judgments for their clients. Such opportunities for positive PR and bountiful coverage do not come along every day, so it is crucial to maximise publicity and get the message out. Historically legal PRs tended to be told the result of the embargoed judgment which allowed them to prepare a press release or statement ready to be sent out the moment the judgment was handed down.
Unfortunately, and perhaps rather predictably, human error reared its head last year and Matrix, a leading barristers’ chambers, issued a press release the day before a judgment was handed down. This resulted in a ‘stern warning’ from Master of the Rolls, Sir Geoffrey Vos, that those who break embargoes could expect to find themselves facing contempt proceedings. By the letter of the law an embargoed judgment should only be seen by the parties involved in the legal action and their lawyers – not PRs.
You would think a warning of facing contempt of court proceedings would be enough to stop any further breaches, but you’d be wrong. A spate of breaches ensued, including former barrister Tim Crosland, who was found in contempt by the Supreme Court after he released its embargoed ruling on the planned third runway for Heathrow airport. He was disbarred as a result.
This, and several other breaches, resulted in the King’s Bench Division (KBD) addressing the issue for the first time in the updated KBD guide. This guidance made it abundantly clear that preparing press releases is not a valid reason to disclose draft judgments beyond those entitled to see them.
However, as is often the case with the law, a spanner was thrown in the works with a ruling following another breach last month (June). Perhaps blissfully unaware of the law around judgments – how? you may ask – The London Borough of Lewisham apologised after they sent out a press release on a judgment before it had been handed down. Quite incredible really when you think about it. But despite being faced with contempt Mr Justice Fordham decided against slapping them with an order. He went even further saying it was “proper for a press release to be prepared, by the defendant as party to the proceedings, so that it could be sent promptly when the finalised judgment had been handed down”.
Confused? I am. Then High Court Judge Mr Justice Mostyn weighed in stating that it is “unacceptable” that the contempt rules in different courts are, well, different. He said: “It is unacceptable that someone would almost certainly be in contempt of court if she discloses a draft KBD judgment to a journalist; might well not be if she discloses a draft Family Division judgment; but in all likelihood would not be if she discloses a draft criminal judgment. This is an unacceptable example of arbitrariness.”
This leaves legal PRs in a bit of a quandary. On one hand the KBD has issued clear warnings about breaching confidentiality and on the other we have Mr Justice Fordham saying it is proper for a press release to be prepared.
So, where does this leave us? The first thing to say, and this should have been obvious to anyone from the start, is that if you prepare statements in advance make sure you triple check that the judgment has actually been handed down before sending it out. Frankly, if anyone sends out a statement before this then they deserve to face contempt charges. However, for many of us it surely isn’t worth the risk and I know from experience many lawyers, being a risk averse bunch, are firmly on this page. Yes, it’s good to have a statement ready to go, but drafting a comment of a few paragraphs doesn’t take an inordinate amount of time, so just do this when the judgment is handed down. If you are a party in a judgment, or your client is, then journalists will want your reaction as it is integral to the story and so will add in your statement, even if it comes a little after the judgment is handed down. As a result, is it really worth the risk?
Fundamentally what we really need is some clarity. Without this we will all be left guessing what the rules really are. Without clarity on the law comes chaos, which is not somewhere any of us want to be.