Court Orders Contempt Proceedings To Be Brought In Respect Of Possible Breaches Of Embargo On Draft Judgment

• Published date: 06 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Technology, Trials & Appeals & Compensation, Libel & Defamation, Fin Tech
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The High Court has decided on its own initiative to issue contempt proceedings on the basis that certain posts on the Slack messaging platform and the forwarding of an email may have disclosed the substance of a judgment while it was still under embargo: Wright v McCormack [2022] EWHC 3343 (KB).

Where a court is to hand down a reserved judgment, the usual practice is to provide a copy of the judgment to the parties and their legal representatives a few days in advance on confidential terms. This is usually referred to as providing a judgment under embargo.

The courts have become concerned that violations of the embargo are becoming more frequent, and Sir Geoffrey Vos MR in R (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 made clear that, in future, embargo breakers could expect to be the subject of contempt proceedings (see this recent post on Practical Law's Dispute Resolution blog).

This decision underlines the need for caution in making any communications which may be seen as relating to a draft judgment, before it is handed down, even if the communication is phrased as a hypothetical and the case and/or judgment are not referred to expressly.

Background

The underlying claim concerned libel proceedings. The claimant, Dr Wright, claims to be Satoshi Nakamoto ("Satoshi"), the inventor of Bitcoin. The defendant, Mr McCormack tweeted and said in a recorded discussion that Dr Wright was not Satoshi and that his claims to be Satoshi are fraudulent. Dr Wright brought a claim for libel against Mr McCormack. Dr Wright established at trial that some of Mr McCormack's publications were defamatory and caused serious harm to his reputation at the time when they were made.

Dr Wright did not establish in the proceedings that he is Satoshi. He did not have to because, once a claimant shows that a publication is defamatory and has caused serious harm to his reputation, it is for the defendant to establish that the publication is true. Mr McCormack initially advanced a defence that what he said about Dr Wright was true (among other defences), but later abandoned that defence (and others). The reason he gave for doing so was that the cost of a trial on that issue would be prohibitive for him.

Ordinarily, a claimant in Dr Wright's position would be entitled to substantial damages. In this case, however, the Judge (Chamberlain J) decided that Dr Wright should have only nominal damages...