Top judge warns over ‘PRing’ rulings
16 Mar 2022
Jon McLeod and Yasmin Abubeker report on a case with clear implications for lawyers and PR professionals engaged in publicising the outcome of cases.
The preparation of a press release for clients, regarding a case and its judgment, is an important task, especially when the case raises significant issues. The purpose is not only to inform key audiences of the outcome (and, in some cases, to promote the law firm or chambers involved) but also to shape the narrative around how a judgment gets reported.
In The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy  EWCA Civ 181, Sir Geoffrey Vos, Master of the Rolls, ruled that while clients are entitled to prepare draft press releases during an embargo, as the judgment may directly impact their reputation and customers, barristers (and by extension, solicitors) ‘drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo’.
The matter was addressed in the Court of Appeal, when Ms Helen Mountfield QC and Mr Mark Greaves, of Matrix Chambers, were found to have broken an embargo placed on an approved judgment. Ms Mountfield QC and Mr Greaves represented the Counsel General for Wales, in his pursuit of permission to apply for judicial review in light of the UK Internal Markets Act. The draft judgment had been sent to the counsels’ practice managers on 4th February 2022 with a hand down date scheduled for 9th February 2022.
The embargo was violated when Matrix Chambers in error uploaded a press release about the judgment on 8th February 2022, a day before the hand-down. Not only had the press release been published on Matrix’s website, but it had also been released onto Matrix’s Twitter and LinkedIn accounts, which have 14,000 and 7,000 followers respectively. When the mistake was realised, the barristers’ senior practice manager at Matrix emailed a letter of apology to the clerk to Lady Justice Nicola Davies. Vos found this ‘inadequate’ and held a hearing ‘to hear oral representations as to what occurred’.
The hearing was held on 16th February 2022. The barristers’ statements revealed that they had missed chances to avoid a violation of the embargo. Neither of the barristers had clarified the hand down date nor maintained the need for confidentiality during an embargo.
Ms Mountfield QC explained that her slip was the result of ‘working under pressure of time to get submissions to the court’, whilst Mr Greaves stated that ‘he was engaged in urgent work’. Nonetheless, Vos asserted that ‘the fact that busy barristers missed each of the four opportunities to avert a violation of the embargo highlights the need for Chambers to operate far tighter systems if further such breaches are to be avoided in future’.
'Barristers are not entitled to draft press releases during an embargo as they are representatives and not parties to the proceedings'
Vos insisted that the case was ‘not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected’. Vos pointed to the Practice Direction supplementing CPR Part 40 which states that neither the draft judgment nor its substance should be disclosed to any other person and no action should be taken (other than internally) in response to the draft judgment before the judgment is handed down.
Vos also referred to HM Attorney General v. Crosland  UKSC 58 (Crosland) (on appeal from  UKSC 15) and the ruling that the embargo ‘was for specific purposes of enabling the parties to make suggestions for the correction of errors… and to prepare themselves for the publication of the judgment’.
Using this to support his judgment, Vos concluded that a client may prepare a press release within an embargo to issue ‘immediately on hand down to explain to the public what had occurred in the judgment’. However, barristers are not entitled to draft press releases during an embargo as they are representatives and not parties to the proceedings. Barristers may be on hand to aid their clients in arranging press releases but should not use the embargo to prepare press releases for their own publicity. It is fair to assume that the same should, on this basis, apply to solicitors and their PR machines.
Vos also asserted that it is sufficient for one clerk to act as a link between the court and barristers and greater measures need to be implemented to ensure the confidentiality of draft judgments. Wide circulation is clearly discouraged by this ruling.
Take this case as Vos’ warning: “in future, those who break embargoes can expect to find themselves in the subject of contempt proceedings…”