A recent decision of the Royal Court has reminded Jersey advocates of the personal professional responsibility they bear as officers of the Court. The case of The Representation of Itkin v Wood and Adam (as Joint Liquidators of Golden Sphinx Ltd) [2023 ]RC101 concerned the breach of an embargo placed by the Court on a draft judgment that had been circulated to counsel for the parties in advance of it being handed down formally by the Court. The embargo imposed in respect of the draft judgment was in standard terms which were expressed in a covering email which provided, inter alia, as follows:
“1. The judgment remains a draft judgment until formally handed down. It follows that the Court may make any changes which it wishes prior to the formal handing down.
- The draft judgment is confidential. It may be shown, in confidence, to the parties and other legal advisers but only for the purpose of obtaining instructions and on the strict understanding that the judgment, or its effect, is not to be disclosed to any other person.
- Because the judgment is a draft, and may be amended, the parties may not rely upon it for any purpose until it is formally handed down.”
Jersey counsel for Mr Itkin (the Representor) supplied a copy of the draft judgment and the email setting out the embargo to instructing US attorneys in California where related proceedings were on foot. Before the embargoed draft judgment had been handed down by the Royal Court, and in breach of the embargo imposed by it, the US attorneys caused the draft judgment to be filed on a public docket within these related proceedings before a Californian Court. In addition the US attorneys made submissions to the US court in connection with the draft embargoed judgment.
When this apparent breach of the embargo was drawn to the attention of Jersey counsel for the Representor, he took instructions and subsequently confirmed that there had indeed been a breach of the embargo. The Royal Court (Commissioner Sir William Bailhache sitting with Jurats Hughes and Ramsden) sat to receive the explanation offered on behalf of the Representor and to consider submissions made in respect of such explanations.
The Royal Court considered case law on very similar issues in England and Wales. Specifically, the case of R (Counsel General for Wales) -v- Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 was drawn to the Court’s attention by the Respondents. That was an English Court of Appeal case presided over by Sir Geoffrey Vos MR. That case concerned circumstances similar to the facts before the Royal Court, albeit that the terms of the embargo imposed by the English Court were not identical to those imposed in Jersey. They were, however, similar. In that English case a draft judgment had been supplied to counsel with the following accompanying embargo:
“This draft is confidential to the parties and to their legal representatives. Neither the draft nor its substance may be disclosed to any other person or made public in any way. The parties must take all reasonable steps to ensure that it is kept confidential. No action is to be taken (other than internally) in response to the draft before judgment has been handed down in Court. A breach of these obligations may be treated as a contempt of Court.”
In breach of the embargo London Chambers which represented one of the parties put out a press release in relation to the judgment due to be handed down. The press release described how the Court of Appeal had dismissed the appeal in that case and that the losing party was seeking permission to appeal that decision to the Supreme Court. The release went on to name counsel who had represented one of the parties to the appeal. The draft embargoed judgment was not included with the press release.
The senior practice manager of this set of Chambers apologised profusely to the Court for this mistake and indicated in considerable detail what steps had been taken internally to make sure that the error would never be repeated; and indicated that counsel in the case would be available to make apologies in person to the Court. Despite these profuse apologies, the Court did not consider the explanation that had been offered was adequate. The Court sought written explanations on several points. Subsequently there was a hearing attended by the two barristers in person who gave further explanations and their renewed apologies. Having heard these extensive explanations and personal apologies Sir Geoffrey Vos MR said:
“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.”
The Court of Appeal reviewed the decision of the Appeal Panel of the Supreme Court in A-G -v- Crossland [2022] 1 WR 367 where the majority held that the restriction (embargo) engaged Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but that it was necessary and proportionate:
“This restriction (embargo) was clearly necessary in order to achieve the legitimate objective of maintaining authority of the judiciary and judicial decisions and was a proportionate means of achieving that result.”
Having considered these English cases, the Royal Court in the Itkin case held that the purposes for which draft judgments are circulated in England and Wales are the same as those for which they are circulated in Jersey – to enable the parties to make suggestions for the correction of errors, to prepare submissions and to agree orders on consequential matters and to prepare themselves for the publication of the judgment. The Royal Court noted that the process is not for any other purpose unless the Court expressly gives its consent. The use for any other purpose is forbidden.
In relation to the duty imposed on lawyers in such matters, Sir Geoffrey Vos MR summarised the position:
“ It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that they are complied with.
The consequences of a breach of 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 Royal Court also considered a second English Court of Appeal decision which had been drawn to its attention by counsel for the Respondents, Public Institution for Social Security -v- Banque Pictet & Cie SA and others [2022] EWCA Civ 368. The facts of that case were that the date for handing down the judgment had been put back by twenty-four hours from that which had first been intended, but there were in fact a number of screenshots of material connected with the draft judgment posted on Twitter around three hours prior to the intended time of handing down and publication of the judgment. Even though the embargo had been breached in this case by a matter of only a few hours, the Court nevertheless made a full enquiry as to how this had occurred. The Tweets revealed that there had been a breach (or breaches) of the embargo which were very serious in what was a high profile and high value case involving allegations of fraud on the part of multiple individuals and organisations. However, despite inquiries, the Court was unable to determine who had committed the breach or breaches which it regarded as the most serious.
One breach of the embargo – not linked to the damaging Twitter breaches – was by the leader of a team of solicitors with conduct of the litigation on behalf of one of the parties. He had sent a WhatsApp message to five senior equity partners in his firm in which he revealed the result of the draft embargoed judgment before the due time of its publication. The solicitor in question made an unreserved apology to the Court and expressed deep regret for the situation that had arisen. He took a number of steps to undo the damage which could have been caused by his breach.
It can readily be seen that the courts of England and Wales have taken an extremely serious view of breaches of these sorts of embargo. From the two English Court of Appeal cases referred to it is clear that those Courts required a full inquiry to be launched to obtain a precise forensic explanation of the circumstances which led to the breaches of embargo in question. In addition, and importantly, the lawyers in those two English cases made strenuous efforts to investigate matters in order to help the Court to understand what had transpired, and to show that additional future safeguards would be put in place to ensure compliance with court embargoes. Importantly, in those cases the solicitors and barristers made direct and unqualified personal apologies to the Court in respect of their own personal failings in their duties as officers of the Court.
The Royal Court in the itkin case took the same line, both in terms of the seriousness with which such breaches are treated, and the personal nature of the duty of a Jersey advocate in complying with embargoes of this type. On the facts of Itkin, it is clear that the initial explanation and apology supplied by the advocate whose side had breached the embargo did not go far enough, the Royal Court describing it as “…something less than fulsome.” The focus of this initial explanation had, in the view of the Royal Court, “…tended to suggest that the breach of the embargo was being minimised.” The Royal Court made known its concerns in this connection, but the subsequent explanations and apologies contained within the advocate’s affidavit which contained an unreserved apology and acceptance of personal responsibility for the embargo having been breached, eventually satisfied the Royal Court.
The Royal Court remained concerned with the conduct of the Representor’s US Attorneys and expressed the view that it would be desirable for the contents of its judgment to be supplied to the professional body which regulated their conduct in their home jurisdictions, to be dealt with as such body saw fit.
The Royal Court made it clear that it was the direct responsibility of the advocate, as an officer of the Court, to ensure that a breach of the embargo did not happen. The Court decided to take no further action in respect of the breach in this case, but it made it plain that it did not wish to understate the nature of the advocate’s responsibility. Speaking of the purpose and importance of the embargo, the Royal Court held:
“Its existence means that advocates of this Court who receive a copy of a draft judgment under embargo must be extremely careful about sharing it.”
The Royal Court expressed its general understanding of the complexity of conducting multi-jurisdictional litigation where draft judgments must be shared with other members of a legal team operating in other jurisdictions, but it went on to add:
“…if anything that emphasises the obligation on the Jersey advocate to ensure that all members of the team with whom he or she shares the draft judgment are fully aware of the terms of the embargo, and if there is not complete confidence that the embargo will be respected, then the draft judgment should not be shared unless the Court is specifically requested to give, and gives, its consent. We cannot be any clearer than that because ultimately the responsibility for breach of embargo rests with the Jersey advocate.”
These should be sobering words for advocates practising litigation in Jersey. The buck stops with the advocate and if a breach of embargo occurs the Jersey Court will look to the advocate to explain how it occurred and he or she will bear personal responsibility for it before the Court. This will require an advocate to take a firm and clear position with members of a wider legal team operating in jurisdictions outside Jersey. This is likely to mean that the Jersey advocate will be required to document the clarity with which he or she has explained the terms and seriousness of the embargo, and to take appropriate documented steps to demonstrate that he or she has procured compliance with the terms of the embargo in foreign jurisdictions. Nothing less than that will do. While this may present a degree of discomfort in having to adopt a potentially uncompromising position with colleagues from foreign jurisdictions who are working alongside the Jersey advocate in a multi-jurisdictional piece of litigation, the consequences for falling short of that standard are potentially very serious for the Jersey advocate, who owes his or her duties to the Jersey Court, and not to any foreign jurisdiction. There can be no doubt about this in light of this recent decision of the Royal Court.
Michael O’Connell from Ardent Chambers appeared for the Respondents in this case.
