Match Group, LLC v Muzmatch Ltd
| Jurisdiction | England & Wales |
| Judge | Nicholas Caddick |
| Judgment Date | 04 May 2022 |
| Neutral Citation | [2022] EWHC 1023 (IPEC) |
| Docket Number | CLAIM NO. IP-2020-000080 |
| Court | Intellectual Property Enterprise Court |
[2022] EWHC 1023 (IPEC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
INTELLECTUAL PROPERTY LIST (CHD)
INTELLECTUAL PROPERTY ENTERPRISE COURT
EUROPEAN UNION TRADE MARK COURT
Nicholas Caddick Q.C.
(sitting as a Deputy High Court Judge)
CLAIM NO. IP-2020-000080
Tim Austen (instructed by Browne Jacobson LLP) for the Claimants
Jessie Bowhill (instructed by Bristows LLP) for the Defendants
Hearing on the papers
Nicholas Caddick Q.C. (sitting as a Deputy High Court Judge):
This judgment relates to a breach of the embargo on disclosures relating to a draft judgment.
The law
The embargo applies by reason of para.2.4 of Practice Direction 40E to the Civil Procedure Rules, which provides that:
“A copy of the draft judgment may be supplied, in confidence, to the parties provided that—
(a) neither the draft judgment nor its substance is disclosed to any other person or used in the public domain; and
(b) no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down.”
The serious nature of this embargo is clear from the decision of the Court of Appeal in R (on the application of the Counsel General for Wales) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 (“the CGW case”). In that case, Sir Geoffrey Vos MR, having reviewed the relevant law, at [24], stated that:
“It is important, therefore, to understand why judgments are handed down in draft under embargo in the first place. Some insight is gained from the passage cited above from Crosland. 1 That suggests that the process is to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment. The process is not for any other purpose and dissemination of the judgment or its substance beyond those that I have specifically mentioned is forbidden (unless the court expressly gives consent).”
And, at [29], that:
“It is the personal responsibility of counsel and solicitors instructed in a case in which an embargoed draft judgment is provided to ensure that [the mandatory provisions of CPR PD40E] are complied with.”
Finally, at [31(v)], he commented that:
“…in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E.”
The Court of Appeal revisited the issue more recently in The Public Institution for Social Security v Banque Pictet & Cie SA [2022] EWCA Civ 368 (“the Banque Pictet case”) where, notwithstanding the final comment of Sir Geoffrey Vos MR in the CGW case, it decided against initiating any contempt proceedings. The case concerned some breaches of an embargo where the culprit was unidentifiable and the court decided that it would probably be a fruitless exercise for it to initiate further action. The case also concerned a breach of the
embargo by a lawyer for one of the parties who had sent a WhatsApp message stating that “we just won” to various fellow partners in his firm and (by mistake) to 41 international lawyers. In respect of this, the court decided not to take further action because the person concerned had provided a full apology and, as regards his disclosure to the 41 international lawyers, the breach was due to an inadvertent error which he had corrected before any damage had been done.The present case
In the present case, the issue arises in relation to the draft judgment in which I set out my reasons for finding in favour of the Claimants (“Match”) in relation to their claims of trade mark infringement and passing off.
The draft judgment was sent to the parties by email on 12 th April 2022 with the following emboldened heading:
IN CONFIDENCE
1. This is a judgment to which the Practice Direction supplementing CPR Part 40 applies.
2. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain.
3. The parties must take all reasonable steps to ensure that the confidentiality of this draft is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court.
4. The court will hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing as a separate Word document or by a separate email. (Nil returns are required) to the clerk to Nicholas Caddick Q.C. by via email at [ omitted], by 4pm on 19 April 2022 so that changes can be incorporated, if the judge accepts them, in the handed down judgment.
5. The formal hand down of the judgment will take place on 20 th April 2022.
On 20 th April, very shortly before the formal handing down of the judgment, I was shown an email from Counsel for Match stating that Match had been approached by members of the press who were aware of the outcome of the case (namely that Match had been successful) and asking Match for its comments. The journalists concerned made clear that they would not publish anything prior to the formal handing down.
Later that same day, Jeremy Blum of Bristows LLP (the Defendants' solicitors) sent an email confirming that the Defendants had been the source of the journalists' information and indicating that he was obtaining more information with a view to providing a full explanation.
In response, I sent a message to the parties stating that:
I am grateful to the parties for drawing this matter to my attention so promptly.
I note that Mr Blum is seeking further information from his client. In view of the approach adopted by the Master of the Rolls in R (Counsel General for Wales) v Secretary of State for Business Energy and Industrial Strategy [2022] EWCA Civ 181, it would be helpful if Mr Blum could ensure that the court is provided with a full written explanation from those involved in the release to the press of information concerning the result of this case. It would also be useful to have an explanation of the steps taken to draw the clients' attention to the confidential nature of the draft judgment and its contents.
Once such information is available from Mr Blum and his client, it would be helpful if Match, having considered the information, could then comment on its stance in this regard.
Subject to the information and Match's response, I will consider whether a further hearing is needed or whether I can deal with the matter on the papers.
On the following day, 21 st April, I was provided with the 6 th Witness Statement of Mr Younas on behalf of the Defendants and the 4 th Statement of Mr Blum. I will deal in greater detail with the contents of these statements later in this judgment. In summary, Mr Younas described the actions that he had taken with regard to the draft judgment. He also accepted that there had been a breach of the embargo for which he apologised unreservedly. Mr Blum's statement explained what he had done to try to ensure compliance with the embargo.
On 25 th April, I received Match's response in the form of written submissions from Mr Austen. These make no criticism of Bristows but are highly critical of Mr Younas who, Mr Austen submits, had breached the embargo in “a calculated and flagrant manner for publicity purposes”. Despite this, Match's position is that it does not intend itself to initiate contempt proceedings. On 27 th April, I received the Defendants' written submissions in reply.
Having considered the witness statements and the parties' submissions, I have decided that it is appropriate for me to deal with the issues raised without a hearing and, instead, on the basis of the papers alone.
The position of Bristows
I will deal first with the actions of Bristows as the Defendants' solicitors and I will say, immediately, that I am fully satisfied that no criticism attaches to their conduct in this matter.
On 12 th April, having received the draft judgment but before forwarding a copy to his client, Mr Blum telephoned Mr Younas. In this call, he made it very clear that Mr Younas should not tell anyone about the outcome of the case without discussing it first with Mr Blum. This was because the draft judgment and the outcome of the case were confidential and on a “need to know” basis, otherwise there was a risk of contempt of court.
Later that same day, Mr Blum sent the draft judgment to Mr Younas. His covering email was as follows:
“Hi Shaz,
As discussed- PLEASE DO NOT TELL ANYONE YET OR DO ANYTHING WITH THIS JUDGMENT- we can discuss soon who you can tell in order to prepare for hand down. We/you have to keep this confidential until after hand down on 20 April. Otherwise it is contempt of court.
Password is: qwerty12422
Best
Jeremy”
Later, again that same day, Mr Younas emailed Mr Blum asking him to arrange to file applications to register new trade marks. However, Mr Blum declined, stating that:
……“On the TM registrations [ redacted] we can prepare the filing but not actually file anything until after 10.30am on 20 April. Point 3 on the Embargo at the top says:
No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court.
The only reason you are filing is in response to the draft so if we filed the new applications, I would worry the other side says you are in breach of the embargo.”
In a phone conversation with Mr...
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...with the greatest care, so as to avoid any inadvertent unlawful disclosure. Introduction. In Match Group LLC v Muzmatch Limited [2022] EWHC 1023 (IPEC), the High Court was concerned with a breach of the embargo on disclosures relating to a draft judgment and held (on the papers) that the ci......
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