A High Court judge has warned that the use of draft judgments for marketing and PR planning is strictly forbidden, in a case involving a series of embarrassing embargo breaches by Fieldfisher.
Delivering a narrative judgment exploring how Fieldfisher came to send the confidential embargoed draft judgment (CEDJ) in a high-profile judicial review to four national journalists, Mr Justice Fordham said a PR executive had made a “big mistake” in treating a CEDJ like an embargoed press release.
He identified a series of embargo breaches by publicity and media manager Nicola Pearson and the lead partner in the case, head of serious injury Jill Greenfield, alongside “shortcomings” by Pearson, Greenfield and general counsel Andrew Dodd, who was called in belatedly by Greenfield to advise on whether sending the CEDJ to journalists was permitted.
However, while Fordham said one instance of providing the CEDJ to a journalist “may” have amounted to contempt because it happened after Dodd had sounded the alarm, he was “satisfied… that further steps are neither necessary nor proportionate”.
“The primary purpose of contempt proceedings – to secure compliance with the court embargo – stands achieved,” he wrote. “The seriousness with which the court treats these matters stands fully communicated and acknowledged.”
He added that the court had “received sincere and heartfelt apologies, expressions of remorse and embarrassment…” and that he was satisfied it wouldn’t happen again. “Lessons have been learned,” he concluded.
Commenting on the case, Michael Evans, joint managing director of Byfield Reputation Counsel, said: “This is a good reminder to the PR community working in and with law firms that a court embargo is completely different to a media embargo and judgments should not be circulated ahead of time.
“It’s important that firms have in place appropriate processes to manage this. The onus however needs to be on the lawyers on a case to control those processes, unless their PR people have been specifically trained in how and when to publicise judgments appropriately.”
The case in question was a judicial review brought by scout leader Sean Glaister and assistant leader Mary Carr challenging an inquest verdict that teenager Ben Leonard had been unlawfully killed when he fell off a ledge in North Wales during a scout trip.
Fieldfisher acted for the Leonard family for the inquest and the judicial review.
After the judgment was handed down, Fordham held a one-day hearing to investigate the circumstances surrounding the embargo breach, which came to light when the BBC’s George Herd contacted The Scout Association about the draft judgment.
While noting that Greenfield’s practice “has not tended to encounter CEDJs”, the judge said she had not fully understood the embargo’s terms and had failed to issue clear instructions to Pearson about the need for confidentiality.
Fordham acknowledged Pearson was not a lawyer and was described in the evidence as a “highly valued colleague within Fieldfisher” who had assisted the Leonard family in the inquest and court proceedings with “skill and sensitivity”, but observed that she “did not read the court embargo; nor did she ask anyone for help in understanding what it meant”.
Pearson had, however, kept Greenfield informed of her PR and marketing plans.
As well as sending the CEDJ to four national journalists, embargo breaches identified by the judge also included emails to journalists that hinted at the outcome and contained quotes from the judgment, an interview Greenfield held with a journalist in which they discussed the judgment and internal marketing preparations, including the recording by Greenfield of a marketing video and the writing of a briefing.
The judge made a distinction between Pearson’s legitimate responsibility to prepare the Leonard family for the case’s outcome and the PR and marketing activity, which is expressly forbidden.
Fordham also raised questions about Fieldfisher’s actions once Dodd had confirmed Greenfield’s suspicion the CEDJ shouldn’t have been distributed, particularly their failure to inform the court about the breach until after it came to light.
The judge wrote: “The true problem was recognised immediately by Mr Dodd when he was asked. But I think I can be confident that – had Mr Herd not said what he said to TSA – this court would never have known of any breach.”
He added: “The court needs to be confident that it will be informed of a breach, fully and promptly, warts and all.”
In February 2022, the Master of the Rolls, Sir Geoffrey Vos, warned law firms and chambers not to breach embargoes after Matrix accidentally issued a press release a day before the ruling was handed down.
Vos said there was anecdotal evidence that embargo breaches were becoming more frequent.
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