Baigent v Random House & Anor

In October of last year, the court issued a new Practice Direction dealing with draft judgments. Until last year, and the Practice Direction, the rule was generally that the parties did not see a judgment in draft until an hour before it was handed down. The lawyers saw it in draft but were unable to take any instructions from their clients on any such judgments.

In a lot of cases, that of course, makes very little difference. However in some cases it can be significant. In this Division there are often actions which require complicated orders, and in reality it does pose a potential unfairness that a client is unaware of the result of what might be a long and detailed case only minutes before the judgment is handed down.

The court was mindful of that, and the court set up a working party, on which I was a member, under the auspices of the current Master of the Rolls to investigate whether that could be changed. That led to the Practice Direction which enabled lawyers to discuss draft judgments with their parties and any other people whom it was appropriate to discuss the draft judgment with, but on terms that they agreed to keep the judgment confidential, accept that it was still a draft judgment and was not effective until pronounced, and – of particular importance – to take no step on such draft judgment before the judgment became a final judgment. The latter is, of course, particularly important because some judgments might have financial significance.

Before the Practice Direction was promulgated, I had on occasions permitted release of draft judgments or similar items, but on one occasion I found there was a possibility that a client, having seen the draft judgment, had tried to take steps before the judgment was pronounced to frustrate the effect of the judgment.

All of this only works if people honour the requirement of the Practice Direction, that is to say, keep it to themselves. The Practice Direction makes it quite clear that any breach may be regarded as a contempt of court.

Shortly before I delivered judgment in this case, on 7^th April, “The Lawyer” had a scoop. It became aware of the case. I have had explanations as to how they became aware, and I accept those explanations for today and I have not sought any further enquiry. I accept that there is an argument that The Lawyer has not acted in contempt of court, but it is fair to say that the explanations given show that perhaps The Lawyer’s journalists ought to be more familiar with the law in relation to draft judgments than they apparently were on 7^th April (ie total ignorance).

I accept that The Lawyer’s holding company has acknowledged that; and I accept the apology of the journalists and The Lawyer for the publication, and I do that in the light of the fact that The Lawyer has also taken steps to train its journalists and to ensure that this kind of publication will not happen again.

The damage done was not of any significance. That might be because of the proximity of the judgment. It also might be because The Lawyer took steps to remove the entry on the website as soon as it was drawn to their attention.

For all of those reasons, I have felt it not appropriate to consider whether the matter should be taken any further. It would not be in the court’s interests, and I do not believe it would further the cause of justice, given the late publication of the result.

I have also decided that it is not in the interests of justice to seek to establish the identity of the journalist’s sources. In so doing, I acknowledge that journalists have a legitimate interest in publishing matters and a legitimate interest in publishing a scoop if they have it. But those two legitimate interests must not collide with clear legal principles.

I have given this judgment in the hope that it will be made public, and that journalists will appreciate in future that, unless there is a special order made, all draft judgments, as a result of the Practice Direction, are embargoed and cannot be published until the official judgment is handed down. As the Practice Direction makes clear, and as the warning on the head of the draft judgments make clear, publication of a draft judgment will be regarded as a contempt of court. Assuming that this ruling of mine is published, it will no longer be possible for journalists to be able to say they did not understand the effect of the issue of a draft judgment.

It is important that journalists take this on board and appreciate that in the future, if there is a breach which is serious -- and I should say that in saying that I am not saying that The Lawyer is in breach, because I have accepted what has been said today -- the consequences that might be visited upon such a publication and its journalists might well be quite severe. It is important that this mechanism -- which was designed by the courts to aid the parties to litigation -- is not abused, because if it is abused, the courts will have to withdraw it, and the result will be that clients will be inconvenienced. The courts may have to revert to the old practice of the clients only becoming aware of the result less than an hour before the hearing. For my part, I did not think that that was a very fair way of dealing with things, but if a privilege is given and is abused by a small number, it is generally taken away. I hope that journalists will bear this in mind in the future when they talk to their sources, who really ought to know better.