Bernadette Rogers v Andrew Wills

Dealt with on the papers

This judgment was handed down remotely at 10:30 am on 20 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

On 6 June 2025 I handed down my judgment in this matter (see [2025] EWHC 1367 (Ch)). Three days earlier, on 3 June 2025, I had circulated my draft judgment in this matter to the parties and their lawyers, in an email addressed to the parties' counsel. That email included these words (emphasis in original):

“Please note that the judgment remains a draft until it is handed down. It is also confidential to the parties and their lawyers until then, and must not be shared more widely or made public beforehand.”

In the usual way, the draft judgment itself set out at the top of the first page a warning about the embargo placed on such judgments. It began as follows:

“IN CONFIDENCE AND SUBJECT TO EMBARGO

This is a draft judgment to which Practice Direction E supplementing CPR Part 40 applies. It will be handed down on 6 June 2025 at 11 am remotely from Bristol Civil Justice Centre. 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 [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 draft was passed, perfectly properly, by the claimant's counsel to his instructing solicitors, who in turn emailed it to their client, the claimant. She was and is a party to the claim and therefore entitled under the terms of the embargo to see the draft. though not to pass it on to others. The covering email to her personal email account address from her solicitors said (in part, capital letters in the original):

“PLEASE NOTE, THE JUDGMENT IS CONFIDENTIAL AT THE MINUTE AND CANNOT BE SENT TO THIRD PARTIES, WHICH IS WHY I AM SENDING IT TO YOU ONLY”.

Since the email was sent by the solicitors only to the claimant's email address, and not to her husband's, the words “to you only” clearly referred to the claimant alone.

In passing, it may be noted that the terms of the embargo set out at the top of the draft judgment make clear that it is not only the draft judgment itself that must not be disclosed to third parties, but also the substance of the judgment. No doubt that would be implied anyway, but here it is made express. However, that element of the embargo is not made express in the letter from the solicitors to their (lay) client. Any solicitors who do not do this already really ought to do so in future. The clearer the instructions to the lay client are, the better.

But this was not the problem in the present case. The problem here appears to have been that, when the judgment was sent to the claimant's email account, it was forwarded on to the email account of the claimant's husband. I do not know enough about the circumstances in which the email to the claimant was forwarded to her husband. But I will assume that, as suggested, there was some kind of automatic forwarding in operation which had been overlooked.

If that is correct, that was plainly something which had been set up on the claimant's own email account. But the claimant's husband was not and is not a party, and therefore was caught by the terms of the embargo. He was, and remains, simply a witness, a third party. Nevertheless, on the same day (3 June 2025) the claimant and her husband sat down together, and studied the entire draft judgment, with a view to looking for typographical errors (as indeed the solicitors had invited the claimant to do).

This joint activity came to the knowledge of the claimant's solicitors, whose senior partner very properly wrote to the court (copying in the defendant's solicitors and counsel) to inform the court of what had happened. The senior partner said this:

“I write to notify the Court that our client's husband, Dr Jon Rogers, has had sight of the Judgment. Bernadette had been clearly advised not to disseminate the draft Judgment in any form (please see attached email as confirmation of the same) and did not deliberately or intentionally breach that obligation. However, due to some currently unidentified glitch, it was visible in Dr Rogers inbox. It is possible that the couple had historically set up an auto-forwarding function on their email account, which would certainly explain what has happened, but they cannot say for certain. If there was such an auto-forwarding function, this was not something that was previously known to Instructing Solicitors.”

The claimant and her solicitors both apologised, the former for her “unintended disclosure”, and the latter “for not having taken such steps as might have pre-empted or avoided this issue.” The court was assured that steps are being taken to ensure that inadvertent disclosure of this kind was not repeated. I accept these apologies, and also the assurance.

But lay parties, who ex hypothesi do not know the law, need to be advised by their solicitors about what to do if something goes wrong. It is a warning to all solicitors who pass on embargoed material to their clients to ensure that there is not an inadvertent forwarding (automatic or not) of such material to third parties, such as occurred in this case, and that, if something of the kind does occur, that the lay client seeks advice immediately.

I turn to consider the position of the claimant. As a party, she was entitled to receive the draft judgment and to consider it, with a view to making suggestions for correction of minor errors and giving instructions to her lawyers on consequential matters. She did not attempt to, and did not, pass the draft judgment knowingly to anyone else. Unfortunately, it nevertheless arrived in the email inbox of her husband.

Once he made her aware of this, however, she should have realised two things. The first was that there was a question as to how this had happened. The second was whether it was consistent with the embargo that her husband should have the draft. She cannot possibly have thought that this was some special arrangement which her solicitors had made for her husband to have a copy. That should have led her at the very least to contact her solicitors to ask whether there was any problem.

Unfortunately, she did not do so. I can easily acquit her of any charge of having deliberately passed this to her husband. I cannot so easily accept that she was blameless in not raising the issue. But I think her error was one born of ignorance rather than anything more serious. The lay parties to litigation really do have to understand that the circulation of draft judgments to them is a privilege intended to facilitate the most effective and economical way of handing down judgment. It only works because people are careful about what they do and what they know. If laypeople cannot deal with this, judges will not be able to trust them with draft judgments for the future.

The position of the claimant's husband is similar, but also different. He is a retired GP, and, although he is not a lawyer, he is a man of both education and intelligence, as I saw when he gave evidence before me. It is somewhat concerning that he evidently did not read the terms of the embargo set out at...