Embargoed judgments – dos and don'ts

Quick read

An embargo is a prohibition, issued by the courts, in respect of draft judgments before they are handed down. Neither the judgment nor its substance can be disclosed.

So, what can you do?

Ensure draft is securely stored.
Share with a restricted list of individuals. Ensure those receiving the draft judgment understand the terms of the embargo.
Identify typographical errors and make corrections.
Agree a form of order with Counsel and the other side.
Prepare submissions to court on consequential matters.
Prepare for publication.

What can't you do?

Do not share the judgment or give any indication of the outcome outside the restricted group of individuals.
Avoid group mailing lists limiting the risk of sending to recipients outside the restricted list.
Any draft publication cannot be shared with the publisher/ journalist while still embargoed.
Advisors cannot use the draft to prepare any publication for the purposes of marketing their involvement.

What to do if there is a leak?

Inform the court and other parties immediately.
Take immediate steps to stem the breach where the source is known.
Investigate the breach or seek information from the party which is the cause of the breach.
Prepare a witness statement for the court setting out clearly what has occurred and provide to the court as soon as possible.

The consequences of breach can be contempt of court proceedings or cost or professional sanctions. The court has been critical of the parties' conduct in a number of recent cases demonstrating that it takes such breaches seriously. It is worth, therefore, ensuring that the appropriate steps are taken to minimise the risk of any breach.