The Public Institution for Social Security v Banque Pictet & CIE SA & Others

Approved Judgment

This judgment concerns breaches of an embargo on the disclosure of the contents of a judgment provided in confidence to the parties and their lawyers. It raises issues considered very recently by Sir Geoffrey Vos, the Master of the Rolls, 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 (“ CGW”).

The judgment in question ( [2022] EWCA Civ 29) dismissed an appeal by the Claimant Appellant (“PIFSS”) against the judgment of Henshaw J dated 6 November 2020 (“the appeal”). Henshaw J had determined that the court did not have jurisdiction to try claims against eight Defendant Respondents and would decline to exercise its jurisdiction over two further Defendant Respondents.

The history of events

The judgment in draft form was sent to counsel on the usual terms on Tuesday 18 January 2022. The covering email stated that the draft was to be “treated in confidence”. The Approved Judgmentwas headed:

IN CONFIDENCE

This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down remotely by circulation to the parties or their representatives by email, and release to BAILII and the National Archives. The date and time for hand-down will be deemed to be 10.30am on Tuesday 25 January 2022.

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. The parties must take all reasonable steps to ensure that its confidentiality 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. A copy of the judgment in final form as handed down will be available on BAILII shortly thereafter but can otherwise be obtained on request by email to the Judicial Office ( press.enquiries@judiciary.uk)…

(“the Embargo”)

On 18 January 2022 PIFSS and all but two of the Defendant Respondents requested permission to circulate the draft further to identified Swiss legal representatives, subject always to the adherence by those individuals to the restrictions of CPD 40E. That permission was granted on 19 January 2022.

As set out, the date and time for hand-down was initially indicated as 10.30am on Tuesday 25 January 2022. By email on Friday 21 January 2022 the parties' solicitors were informed that the date and time for hand-down would be delayed to 10.30am on Wednesday 26 January 2022 and tasked with informing all parties and relevant individuals accordingly (including the Swiss lawyers). There is no suggestion that the revision in timing was not communicated as necessary. Hand-down duly took place at 10.30am on Wednesday 26 January 2022.

On 7 February 2022 Greenberg Traurig LLP (“GT”), solicitors for Mr Al-Rajaan, the main defendant in the proceedings but who was not a party to the appeal, wrote to Stewarts Law LLP (“Stewarts”), solicitors for PIFSS, copied to all parties to the main action. GT referred to and appended screenshots of material posted on the social media website Twitter from around 7.30am UK time on 26 January 2022. The tweets came from various Kuwaiti news outlets, and revealed the broad outcome of the appeal, namely that the court had confirmed that it did not have jurisdiction over PIFSS' claims against the Swiss banks/bank accounts involving Mr Al-Rajaan. GT contended that, in light of the fact that i) PIFSS and those instructing Stewarts were emanations of the Kuwaiti state and ii) PIFSS and those instructing Stewarts were the only parties based in Kuwait to have received the draft judgment, there was a “very strong inference” that the tweets were written as a result of a breach of the Embargo by PIFSS and/or those instructing Stewarts. The motivation was said to be “to head off the obvious bad press that would ensue from the Kuwaiti public being made aware that the Court of Appeal had ruled against PIFSS…”

Stewarts wrote to the court on 17 February 2022, enclosing GT's letter of 7 February 2022 and attachments, together with further related material identified by Stewarts through internet searches conducted after receipt of GT's letter. Stewarts identified the enquiries that it had made into the tweets (with counsel, within Stewarts, with PIFSS' Swiss lawyers and within PIFSS, including the Department of Legal Advice and Legislation (“DLAL”)). Stewarts stated that, on the basis of those enquiries, it had identified no basis for GT's allegation that the tweets were written as a result of a breach of the Embargo on PIFSS' side.

On the same day, the court emailed Stewarts, copied to GT, as follows:

“…It is clear that there has been a breach of the court embargo, which is a serious matter.

It is noted that counsel, the relevant lawyers at Stewarts, the named Swiss legal representatives and all individuals at PIFSS, including the lawyers within the DLAL, who were made aware of the outcome of the appeal prior to hand down have individually confirmed:

i) That they were aware that the draft judgment was subject to embargo;

ii) That they were not directly or indirectly responsible for publishing any of the tweets or providing any information to any of the sources who tweeted;

iii) That they have no other information regarding how the material might have come into the public domain prior to the hand down.

The court requires Stewarts to...