Mr Justice Meade Highlights The Importance Of Confidentiality When Dealing With Draft Judgments

• Published date: 14 October 2021
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Patent, Trials & Appeals & Compensation
• Law Firm: Marks & Clerk
• Author: Nicholas Fischer and Trevor Crosse BSc

Mr Justice Meade recently handed down a short but important judgment dealing with issues of confidentiality which arose following circulation (but before hand-down) of a draft judgment. A copy is available here.

This decision related to a suspected leak of the draft judgment from an earlier trial between the parties (Optis Cellular v Apple Retail [2021] EWHC 2564 (Pat), known as "Trial F"), handed down at the end of September as part of an ongoing SEP and FRAND dispute.

The decision serves as a stark reminder to practitioners and their clients of the importance of maintaining the confidentiality of draft judgments and limiting the number of people who have access to them.

The issue arose after the draft judgment in Trial F had been circulated to the parties' lawyers. One of the barristers acting for Optis had shared the date of hand-down (which was not confidential) with a barrister who happened to be acting for Sisvel, another SEP holder who had an interest in the result. Subsequently, the CEO of Sisvel, Mr Fogliacco, emailed the Managing Director of Optis, Mr Friedman (who was a friend and commercial contact) to say "I hear Monday will be a big day for you guys" and that he was "keeping [his] fingers crossed".

Mr Friedman thereafter called Mr Fogliacco. However, this call proceeded on the basis of a significant miscommunication between the two- Mr Friedman was apparently under the impression that Mr Fogliacco knew the result of the trial, when in fact he was merely aware of the upcoming hand-down date. Following the call, Mr Friedman informed Optis' legal representatives of the "leak" of the decision, and of his belief that the source of the leak was the judge's "office". Optis' lawyers in turn informed the judge of the "leak" but did not, at least initially, mention Mr Friedman's assertion that it had come from the judge's office.

It is not necessary to go into all of the facts of the case, but in summary what followed was a costly, time-consuming, and unpleasant investigation by the judge and the parties' representatives to identify the source of the leak. As it turned out there had been no leak at all. The judge was clearly not at all impressed - not least as it had been suggested that he or his staff may have been responsible.

Having investigated the matter, Meade J found that significant errors of judgment had been made, and noted (at paragraph 73 of his judgment) that:

"The point to learn is that in a situation such as this what must be done is to...