Council breached court embargo by releasing news of judicial review ruling before hand down

The London Borough of Lewisham has acknowledged it breached a court's embargo after a press officer sent an embargoed press release detailing the outcome of a judicial review 45 minutes before the judge handed his decision down.

Mr Justice Fordham had sent a confidential embargoed draft judgment (CEDJ) of his decision in the planning case of Kinsey, R (On the Application Of) v London Borough of Lewisham [2022] EWHC 1774 (Admin) to the parties on 5 July 2022.

The judge set an embargo for the judgment that meant news of the judgment could only be made public at 10 am on 11 July.

The CEDJ was passed to a number of councillors and officers within Lewisham.

Among these recipients was a council press officer, who wrote up a press release ahead of the embargo lifting. The embargoed press release (EPR) included the following disclaimer in red highlighted text: "EMBARGOED UNTIL 10 am MONDAY 11 JULY."

He later asked Lewisham's Senior Media and Campaigns Officer to send the press release to various media outlets "first thing" on Monday (11 July) morning as he would be on annual leave that day.

She then sent the EPR at 9:15 am on Monday, 11 July, to 17 press and media email addresses.

The claimant in the judicial review case later raised concerns to the court about the premature email. It submitted that the scope of the council's internal distribution constitued a breach of the court's embargo. The claimant also contended that the embargo was breached when Lewisham sent the press release out at 9:15 am, even though the email included a disclaimer that the judgment was embargoed until 10 am.

In Kinsey, R (On the Application Of) v City of London Corporation (No.3) [2022] EWHC 2723 (Admin), published on Bailii this week, Fordham J found no breach regarding the council's decision to pass the CEDJ to internal staff and members, accepting the authority's reasoned explanation as to why they needed to know the outcome.

The judge said that he agreed with counsel for the claimant that "neither a CEDJ nor the outcome arising from it can legitimately be communicated purely 'for interest' or 'for information'.

"There must be a 'need', based on the identified purposes of the distribution of the CEDJ," he noted.

"It must, moreover, be a "need" which cannot be satisfied through the benign communication of the date and timing envisaged for the hand-down. There is a need for care and a conscientious exercise of judgment. There is a need for diligence."

On the other hand, the Court ought not routinely be drawn into supervising a distribution list, Mr Justice Fordham said.

He added: "I accept that persons within an authority or entity which is a party to the proceedings may, in preparing themselves for publication of the judgment, need to be aware of the substance of a CEDJ, may need to be prepared, and may need to be assisted by co-workers in how they are prepared, so as to be able to 'hit the ground running' when the judgment is handed down."

The judge said he also accepted that it might not always suffice, or be practicable, to schedule each such person to be told of the timing of the proposed hand-down and then have the outcome communicated at that moment.

"That is not to encourage large numbers for circulation. In terms of takeaway points, it seems to me that a party should liaise closely with their legal representatives in identifying those individuals to whom, in terms of strict confidentiality reflecting the Court's embargo: (a) the CEDJ is proposed to be circulated or (b) the outcome is proposed to be communicated. A clear basis as to why that circulation or communication is 'needed for the purposes for which the CEDJ has been distributed by the Court' should be identified, prior to circulation, and it should contemporaneously be recorded."

Mr Justice Fordham added: "The question should be asked: why does it not suffice for the person to be made aware of the timing of the proposed hand-down and receive the communication promptly when it takes place? If there is doubt, the Court's permission should be sought. The other parties' observations can, as appropriate, be invited. In the present case, I do not find a breach. I add this. If permission had been sought in the present case for this internal distribution on the reasoned basis put forward, I would have granted it."

The judge did, however, find that the release of the EPR at 9:15 to the press, communicating substantive content from the CEDJ, amounted to a breach of the court's embargo.

"[The press officer] mistakenly thought that a press release could be sent out prior to hand-down, with an 'embargo on reporting' prior to 10 am," the judge said.

"This sort of 'media embargo' is standard practice for other announcements in the course of the Defendant's general business, where [the press officer] would usually liaise with journalists to issue press releases. His approach was a 'media embargo' rather than a 'court embargo'."

He added: "This misunderstanding of the Court embargo was a genuine human error."

The court heard from Lewisham's Director of Planning, who in a written witness statement set out the council's position, acknowledged the breach and apologised for it.

She told the court that: "[The council] will be taking action to ensure that this does not happen again, including agreeing a written protocol with the Council's Monitoring Officer."

Fordham J concluded that: "It is, rightly, agreed that this was a breach of the embargo and that this court should find and record the breach. I hereby do so. No finding of contempt is invited and none is made. No Order is necessary. This judgment is sufficient to address the concerns which have arisen."

Adam Carey