R the Counsel General for Wales v The Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lady Justice Nicola Davies,Lord Justice Dingemans |
| Judgment Date | 16 February 2022 |
| Neutral Citation | [2022] EWCA Civ 181 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal No: C1/2021/0802 |
and
[2022] EWCA Civ 181
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lady Justice Nicola Davies
and
Lord Justice Dingemans
Appeal No: C1/2021/0802
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Lord Justice Lewis and Mrs Justice Steyn [2021] EWHC 950 (Admin)
Royal Courts of Justice, Strand
London WC2A 2LL
Helen Mountfield Q.C. and Mark Greaves (instructed by Director of Legal Services, Welsh Government) for the claimant
The defendant and interested parties did not appear and were not represented
Hearing date: 16 February 2022
Sir Geoffrey Vos, Master of the Rolls:
Introduction
This judgment concerns the violation of an embargo on the publication or disclosure of the contents of an Approved Judgment provided in confidence to the parties and their counsel and solicitors.
The draft judgment in this case was sent by the clerk to Lady Justice Nicola Davies on the usual terms to counsel's clerks at 13.40 on 4 February 2022. Two of the three counsel representing the appellant were Ms Helen Mountfield QC and Mr Mark Greaves (the “Barristers”), who practice from Matrix Chambers (“Matrix”). The email attaching the draft judgment was sent to the clerking team at Matrix. It included the following:
This draft is confidential to the parties and to their legal representatives. Neither the draft 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. No action is to be taken (other than internally) in response to the draft before judgment has been handed down in court. A breach of any of these obligations may be treated as a contempt of court.
The header to the draft judgment itself included a statement in a substantially similar form, save that it said expressly that “the Practice Direction supplementing CPR Part 40” applied to the draft judgment.
CPR PD40E, which establishes the procedure for circulating judgments to counsel for corrections, provides as follows:
2.4 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.
2.5 Where a copy of the draft judgment is supplied to a party's legal representatives in electronic form, they may supply a copy to that party in the same form.
2.6 If a party to whom a copy of the draft judgment is supplied under paragraph 2.4 is a partnership, company, government department, local authority or other organisation of a similar nature, additional copies may be distributed in confidence within the organisation, provided that all reasonable steps are taken to preserve its confidential nature and the requirements of paragraph 2.4 are adhered to.
2.7 If the parties or their legal representatives are in any doubt about the persons to whom copies of the draft judgment may be distributed they should enquire of the judge or Presiding Judge.
2.8 Any breach of the obligations or restrictions under paragraph 2.4 or failure to take all reasonable steps under paragraph 2.6 may be treated as contempt of court.
At 14.49 on 8 February 2022 (the day before the draft judgment was due to be handed down in court), Ms Elizabeth Bousher, senior practice manager in Matrix, (Ms Bousher) emailed a letter (the Letter) to the clerk to Lady Justice Nicola Davies with the following text:
It has been brought to my attention that our Matrix press release in relation to the Judgment due to be handed down tomorrow on the matter of R (Counsel General for Wales) v Attorney General has been uploaded too early. This was due to a miscommunication within Chambers and we are very sorry for this vast administrative oversight. The text that was posted online is written below and was taken down immediately when this error was discovered.
The Court of Appeal has dismissed the appeal of the Counsel General for Wales in his application for permission to seek a declaration as to the proper construction of the Government of Wales Act in the light of the UK Internal Markets Act. The Court of Appeal held that the application was premature and should be tied to a specific piece of Senedd legislation. The Counsel General is seeking permission to appeal to the Supreme Court. Helen Mountfield QC and Mark Greaves represented the Counsel General with Christian Howells.” [sic]
The draft judgment was not included and has not been released.
We apologise profusely to the court for this mistake and will take steps internally to make sure this error is never repeated. Counsel will be available to make our apologies in person to the Court.
I responded to the Letter by writing to the Barristers personally on 11 February 2022. I said that the Letter had explained that the outcome of the case was made the subject of a press release from Matrix posted, as I thought, on Matrix's website, in violation of the Court's embargo on 8 February 2022. I said that the court found inadequate the explanation that this violation had been “due to a miscommunication within Chambers”. I explained that the Court of Appeal, like other Courts, operated on the basis of a system of trust between judges and Counsel and that adherence to judges' directions was central to that trust: “[i]t was counsel's personal responsibility to ensure that the court's directions [were] adhered to”. I referred to the strict provisions of CPR PD40E. I sought a written explanation as to (i) what precisely went wrong within Chambers and how such a serious error could have occurred, (ii) the names of each individual person within Chambers, whether barristers or staff, who had access to the embargoed judgment and for what purpose they had such access, (iii) who drafted the press release and posted it and where and for how long, and (iv) the precise steps that you propose to ensure that there is no repetition of the mistake. Finally, I indicated in my response that we intended to hold a hearing at the earliest opportunity to hear oral representations as to what occurred and what consequences should follow.
The Barristers responded as directed by my letter at Noon on 14 February 2022 providing the court with a summary of their responses to my questions and witness statements from each of the Barristers and Ms Boucher. I shall deal with the contents of those statements in a moment. Yesterday, a further witness statement from Rachel Southern, Head of Marketing and Strategic Development at Matrix, was filed.
We held the hearing that I had directed in my letter today on 16 February 2022. It was attended by Ms Mountfield QC and Mr Greaves in person. Notwithstanding that we gave the other counsel in the case, the solicitors and the parties the opportunity to attend, only Diane Dunning, the solicitor within the Welsh Government Legal Services attended.
I am, therefore, delivering this judgment having received written and oral representations as to what occurred and what consequences should follow.
The Barristers' explanation for what happened
The Barristers' witness statements explain that, once their clerks had received the password-protected copy of the draft embargoed judgment, they were sent it and the password (by separate email) on the same day (Friday 4 February 2022). Ms Venetia Tate, a Marketing Assistant at Matrix emailed the Barristers at 10.09 on Monday 7 February 2022 headed “News Item” in the following terms: “I understand you are in Court tomorrow for the case of Wales v AG. Would you like a news item to be uploaded onto the website? If so would you be able to draft some text or shall we write something and send to you for approval?”
After that email, Ms Mountfield drafted the text recorded above and sent it to Ms Tate at 11.03 on Monday 7 February 2022. On the following day, Tuesday 8 February 2022 at 10.09 (which was still almost 24 hours before the hand-down fixed for 10.00 on Wednesday 9 February 2022), Ms Tate emailed the Barristers again saying: “Would you prefer I did not post about it on social media?” Ms Mountfield responded one minute later saying: “I'm easy either way”, and Mr Greaves responded two minutes after that saying: “I think it is probably worth posting on social media, just due to the importance”. At 10.30 the same day, Ms Tate responded to the Barristers saying: “Thanks for confirming. I'll post on social media this morning”.
It can be seen immediately from this email exchange that the Barristers each had two opportunities to...
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