PI Brief Update

Embargoed judgments: InterDigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 - Anisa Kassamali, Temple Garden Chambers

24/04/23. The fear of accidentally breaching an embargo on the disclosure of a draft judgment rests with all practitioners. Some comfort can be taken from the Court of Appeal’s decision not to take matters further where such a breach had taken place but had not been deliberate: InterDigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57.

Background

A draft judgment was sent out to the parties’ counsel and solicitors in the usual manner by the Court of Appeal in the usual manner. The draft stated in the usual manner that it was "confidential to the parties and their legal representatives", that "neither the draft itself nor its substance may be disclosed to any other person or made public in any way", and that "a breach of any of these obligations may be treated as a contempt of court."

The draft judgment was appropriately shared with counsel from the US. However, he did not review the detail of the what could be disclosed and what could not. He therefore shared the outcome of the proceedings (rather than the judgment itself) with external counsel. The Court of Appeal became aware of this breach when the parties involved proactively informed the Court by way of letter. A witness statement to similar effect was then produced at the Court’s request.

Decision

The Court of Appeal highlighted the importance of adhering to such embargoes by reference to Sir Geoffrey Vos MR’s dicta at [30] of R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 [2022] 1 WLR 1915: “…The consequences of a breach of the embargo can be serious. It is not possible to generalise about the possible consequences as judgments will range, for example, from dealing with highly personal information in some cases to price-sensitive information in others. The court is rightly concerned to ensure that its judgments are only released into the public domain at an appropriate juncture and in an appropriate manner."

The Court of Appeal highlighted that liability for contempt of court was strict and that therefore ‘may’ have been such contempt, regardless of the unintended nature of the breach (see [19]). However, on the facts of the case, there was no good reason to explore the questions of law or to proceed any further with the case. Further proceedings would be disproportionate where the individual had apologies, and the illegitimate disclosure were relatively limited both in content and in terms of the number and identity of recipients. The disclosure had been made to people with a close professional interest in the outcome on express terms as to confidentiality (which were adhered to). There was no public disclosure. Moreover, the facts of the disclosure were investigated and disclosed to the Court without prompting.

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