Is there a draft in here? Lessons for lawyers and clients about the confidentiality of draft judgments

The botched handling of an assumed leak of a draft Patent Court judgment demonstrates the perils of failing to handle confidential information with due care.
 
While the only sanctions delivered were in the form of costs, the judge also handed down a public judgment admonishing the small number of individuals involved and outlining what he considered to be the proper way to handle such situations, so that lessons could be learned for the future.

A simple misinterpretation

The main facts of this curious episode are that, shortly after the judge provided his draft judgment on 20 September 2021 in one of several trials in a high-profile litigation, he received an email from one of the parties' solicitors alerting him to a potential breach of the confidentiality of the draft judgment. 

The solicitor informed the judge that a third party ("T") had contacted his client's representative ("C") on 22 September to congratulate him on the outcome of the trial – confidential information that T should not have known. The solicitor confirmed that his legal team were not aware of any possible confidentiality breach from their side.

Unknown to the solicitor at the time of his email to the judge, C had misinterpreted an email from T as indicating that T knew the result of the trial. 

However, T was not in fact aware of the result of the trial, but had merely emailed C to wish him luck with the outcome, stating: "I hear Monday will be a big day for you guys. Keeping my fingers crossed!"

Instead of immediately reporting the apparent breach of confidentiality to his solicitor, C telephoned T to discuss the judgment. In evidence, C had described this discussion as "just locker room chat among guys discussing the football game" – a comment that was described by the judge as "distasteful and extraordinary". 

T's evidence, which was accepted by the judge, was that he did not know the result of trial before the call and the result was not communicated to him during the call either. During their discussion, T had treated the result as hypothetical and C treated it as actual.

The judge made clear that he strongly disapproved of C's actions, stating that the "embargo on draft judgments does not prevent a party who knows the result from speaking to other commercial partners (…) but to undertake voluntarily a communication which is bound to be focused on the result of a trial is unacceptable".

It was only after the call that C contacted his solicitor to report the alleged breach of confidentiality – a report that turned out to be lacking in crucial details about the key facts of the alleged disclosure and which suggested that the leak had come either from the "office" or "friends" of the judge. 

In the ensuing investigation conducted by the parties (described by the judge as a "massive waste of time and money, and much completely unnecessary heartache and worry"), C also claimed (falsely) that T had told him that "Meade's office leaks like a sieve".

During the investigation, C's solicitor sent the judge an email without copying the judge's clerk. The judge considered that this was a clear insinuation that the alleged leak had been perpetrated by his clerk, which the judge described as: "At best (…) a disastrous lack of thought, which has caused (…) a great deal of concern and indeed distress, on my part, and more importantly on the part of my clerk".

He added that the allegation should never have been made, but that once it had been made, it should have been handled in a totally different way.

The judge also stated that C's solicitor had not fulfilled his duty to inform the court of what he knew because he had left out crucial information regarding the identity of T, and as well as the initial assertion by C that the leak had originated from the judge's office.

The confusion was eventually resolved after, at the judge's request, T's solicitors investigated the matter and confirmed that there had not been a leak after all. 

Following a further witness statement from C, the judge commented that C's conduct was "deplorable and far short of what the court is entitled to accept of a person who is in the privileged position of having a draft judgment".

However, the judge decided against escalating the matter to contempt proceedings on the basis that it would be disproportionate and a distraction from the substance of the main litigation.

Why judges provide draft judgments

Given the clear sensitivity of court judgments, some may question why judges give out draft versions of their decisions at all.

In general, judges appreciate the opportunity to provide draft judgments in confidence to parties for corrections, and to give parties the benefit of considering appeals and any commercial decisions that may be required prior to public hand-down. 

However, given that the result of a trial can be communicated very easily, a great deal of trust and caution must be exercised by all parties in how they handle the information.

In the Patent Court case, the draft judgment included a notice in "fairly standard form", making clear that (pursuant to Practice Direction 40 relating to judgments) it was "confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain". 

The notice also stated that a "breach of any of these obligations may be treated as a contempt of court".

In summarising why an investigation into the suspected leak was necessary, the judge stressed that "what is essential is to find out what happened with care, urgency and rigour, and to address it, and to make clear and complete disclosure to the court and the opposing party … This can be embarrassing and painful, but it is essential".

It is the obligation of the recipient of the confidential information to do this if it is believed that there has been a breach of confidentiality.

Need to know basis

The judge also criticised the use of "email exploders" (where a single central email address can contain a large number of recipients) to receive draft judgments. 

In this case, using the "exploder" method of distribution meant that for one party the draft judgment was sent to more than 20 people, which the judge considered excessive for the purpose of giving instructions.

The judge commented that the use of these types of email distribution lists to receive draft judgments is not in the spirit of the Practice Direction and that thought should be given to curtailing the practice of sending draft such confidential information to large groups.

What can lawyers learn from this?

Lawyers need to ensure their clients are aware of restrictions regarding draft judgments and the penalties for breaching them. 

While the judge in this case chose not begin contempt proceedings, there is no guarantee a different judge in a similar position would do the same. 

If you are unfortunate enough to find yourself in a similar position, you must undertake a full and proper investigation and approach that investigation with complete transparency.

It will be interesting to see whether the judge's observation regarding the use of large email distribution lists to receive draft judgments will be taken up, but in any event, it seems sensible for lawyers to limit the distribution of draft judgments to only those who really need them.

This article was authored by Chris Sweeney, senior dispute resolution associate at Fieldfisher.