Steven Ellis & Ors v John Benson Limited

This judgment concerns a breach of an embargo on the publication or disclosure of the contents of a draft judgment, provided in confidence to the parties and their legal advisors.

The draft judgment in this case was sent by my clerk on the usual terms to the legal advisors of the parties at 11.22am on 28 July 2025. The covering email said the following:

“Dear all

Please find enclosed the draft judgment from Mr Justice Freedman in the above case. As per the opening paragraph at the top front page this draft judgment is in confidence. THIS IS NOT TO BE DISTRIBUTED.

Any suggestions about typographical changes (agreed) needs to be provided on a separate word document to me at [REDACTED] by 12noon on Monday 4 August 2025. Additionally an agreed order also needs to be provided by 12noon on Monday 4 August 2025.

The judgment will be handed down remotely by email on at a time and day to be determined with no need for attendance.

Thank you.

Kind regards”

The draft judgment was headed as follows:

“IN CONFIDENCE AND SUBJECT TO EMBARGO

This is a draft judgment to which CPR Practice Direction 40E applies. The judgment will be handed down be handed down electronically, in accordance with the Practice Guidance dated 16 December 2021 on a day and time to be determined. [This draft is confidential to the parties and their legal representatives. Neither the draft itself 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.]

As explained in Counsel General v. BEIS (No. 2) [2022] EWCA Civ 181, the draft judgment is only to be used to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and draft orders and to prepare themselves for the publication of the judgment. A breach of any of these obligations may be treated as a contempt of court.

The parties' lawyers should by 12noon on Monday 4 August 2025 submit to the clerk to Mr Justice Freedman at [REDACTED] typing corrections and other obvious errors (nil returns are required). The official version of the judgment will be available from the clerk after hand down.”

CPR PD40E sets out the procedure for circulating judgments to parties for corrections, as is set especially at paras. 2.4 to 2.8.

On 29 July 2025, Mr Butler KC very properly sought confirmation that competition law barristers who had advised about aspects of this case could be treated as the parties’ legal advisors and therefore circulated the judgment subject to the embargo.

On 30 July 2025, Mr Butler KC wrote an email to my clerk at 6.21pm to be passed on to me which read as follows:

“Dear Judge,

I am sorry to have to inform you that there has been a breach of the embargo.

It seems that Mr Benson did not properly understand that “parties” means only the litigants. He believed that the term extended to anyone who had participated in the case, i.e. witnesses, and informed the witnesses who gave evidence on the Defendant’s behalf of the outcome.

Since learning of the breach, by means of an e-mail from Mr Hodge of Aquabridge timed at 9.20am today, my instructing solicitor has worked quickly to ascertain what has happened and to minimise its impact by procuring undertakings from Mr Benson and (so far) 7 of the 9 other witnesses. He has also obtained a witness statement from Mr Benson setting out exactly what has occurred. That statement is attached. The undertakings are exhibited to Mr Benson’s Statement.

As set out in this statement, Mr Benson is profoundly apologetic for his misunderstanding.

Mr Benson has been left in no doubt of the seriousness of this matter.

I am extremely sorry to find myself having to communicate in these terms.

Yours Sincerely,

Andrew Butler”

The witness statement of Mr Benson dated 30 July 2025 stated the following:

1.

“On 28 July 2025, a draft of the judgment was shared with the parties and their legal representatives. I understand that it was expressed to be in confidence ‘for the parties and their legal representatives’, and that it would not be distributed beyond that.

2.

At 09:10 on 29 July 2025 my solicitor telephoned me to inform me about the decision, and drew my attention to the embargo. At 09:28 July 2025 my solicitor also forwarded the e-mail from the Court containing the draft judgment and further details of the embargo

3.

On 29 July 2025, I sent an email to the Defendant’s witnesses informing them of the outcome of the trial. I did not send them a copy of the draft judgment. I just informed them of the outcome.

4.

I had wrongly assumed that as they had attended the trial (some of them on more than one day) to give evidence, that they were a party to the proceedings and the outcome could be shared with them. I did not check this with my legal representatives.

5.

I confirm that beyond the above, I have not discussed the judgment, its substantive content or the outcome of the trial with any other person(s). I have not told the Defendant’s office staff, and I have not told any of my personal friends or contacts.

6.

On 20 July 2025, my solicitor Mr Grant was contacted by Mr Hodge of Aquabridge, the Claimants’ solicitor. Mr Hodge informed Mr Grant that non-parties were aware of the outcome of the case and that he believed I was responsible. A copy of that e-mail is exhibited at page 1 of the exhibit with this statement labelled JB4.

7.

Mr Grant immediately contacted me to take instructions, and I informed him of the position.

8.

Mr Grant informed me that I should not have shared the outcome with the Defendant’s witnesses. I promptly signed an undertaking to the Court not to share the contents or substance of the draft judgment with any person other than the Defendant’s legal representatives.

9.

Mr Grant also promptly sought similar undertakings from the Defendant’s other witnesses. At the time of writing, Mr Grant is in possession of signed undertakings from Wendy Smith, Andy Court, Lisa Charalambous, Rob Gerrard, Grant Bywaters, Jonathan Challis and Sajjad Hussain (i.e., 7 of the 9 other witnesses).

10.

I await similar undertakings Kevin Carrol and Roderick Stubbs (although I understand that Roderick informed Mr Grant that he had not opened my email anyway, and would delete it without reading it). I will use my best endeavours to secure those undertakings for the Court.

11.

So far as I am aware, the witnesses that were informed of the outcome have not told anyone else. I will continue to make enquiries and if I become aware of anyone else being aware of the outcome, I will use my best endeavours to secure similar undertakings from them.

12.

Finally, I would like to take this opportunity to apologise. I had not intended any discourtesy to the Court, Freedman J, or any of the other party. I honestly believed that I was not prohibited from sharing the outcome with the witnesses as they had been at trial. I did not appreciate that they were not “parties”. I have not discussed the outcome of the trial with any other person, nor shared the judgment with any other person (other that the Defendant’s legal representatives).”

In correspondence from Aquabridge Law, it was stated that Jackie Minter had found out about the result of the case (she was not a witness). Aquabridge Law said that three other non-witnesses had found out about the result, but their identity has not been disclosed, although there is continuing correspondence about the terms on which their identity would be disclosed by Aquabridge Law. Mr Benson says that he cannot comment on unidentified persons, but, in any event, he did not inform any of these people. He was willing to provide in unredacted form his emails which would show that he had limited his communications to witnesses. The inference is that a witness or witnesses informed about the result passed on the result to others. Mr Benson did not inform the witnesses about the embargo.

In HM Attorney General v Crosland [2021] UKSC 58 made observations about the specific purposes of the embargo and why it was a necessary and proportionate restriction engaging Article 10 of the European Convention on Human Rights:

“Furthermore, it [the embargo] was for the specific purpose of enabling the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and to prepare themselves for the publication of the judgment. It is important that the published text of a judgment of the court should be accurate, complete and in its final form. The restriction was clearly necessary in order to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result.”

The Court has also had regard to the decision of the Court of Appeal in The Counsel General for Wales v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181:

“30.

CPR PD40E exists for good reasons. The consequences of a breach of the 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.”

JBL and Mr Benson now accept that the permission to send a judgment to parties does not allow for the judgment or its effect to be communicated to witnesses. Mr Benson should not have passed on even the substance of the judgment to witnesses. In the light of the experience of this case, a legal representative may need to explain specifically who can and who cannot be shown the judgment. Attention needs to be given in each case as to who is a party and who is not. This arises particularly in the context of a party which is a body corporate or a partnership or an unincorporated association.

Even where someone is a party, consideration needs to be taken to ensure that each person notified knows of and understand the embargo. Further in respect of those persons entitled to see it, it is for a limited purpose, namely for the correction of errors, preparation of submissions on consequential matters and to prepare themselves for the publication of the judgment.

It is said on behalf of the Claimants that the Court cannot assess the seriousness of the breach of the embargo without sight of the email to the witnesses. It is said on behalf of JBL that the redacted text references privileged information about the advice that had been given to JBL before, during and following trial, and so disclosure of an unredacted version of the email would be entirely inappropriate.

If privileged information was shared with a third party in confidential circumstances, that would not usually end the privilege as between the party claiming the privilege and the rest of the world. The fact that the communication was a breach of the embargo does not lead necessarily to a different conclusion. I am not satisfied that privilege has been lost. In any event, I am satisfied that the seriousness of the breach can be assessed without sight of the unredacted email.

The Court is willing to accept that Mr Benson acted in a mistaken belief as to the effect of the embargo. However, the following features are to be noted:

Despite the above, there are a number of mitigating points to be made, namely:

Having regard to the prompt steps taken to limit the extent of the impact of the breach, insofar as this is possible, the immediate explanation of what occurred and Mr Benson’s apology, it is appropriate for the Court not to initiate committal proceedings.

This draft judgment will be published in due course, but not before publication of the main judgment, and in any event, not before it has been finally approved and handed down. At this stage and until further notice, this judgment remains subject to an embargo.

This case shows the importance of observing the embargo and seeking guidance including from the Court where there is any doubt. Further, without criticism of the solicitors for JBL, the history of this case shows that consideration should be given where appropriate on the facts of the case for the legal representative to identify and advise specifically who can and who cannot know about the judgment and the limited purposes for which it is to be seen. Having identified those individuals (who must be parties), each one should be informed and advised about the terms of the embargo.

For the reasons set out above, no further action will be taken by the court of its own motion.