Bernadette Rogers v Andrew Wills [2025] EWHC 1524 (Ch)

[2025] EWHC 1524 (Ch)Case No PT-2023-BRS-000077IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLPROPERTY, TRUSTS AND PROBATE LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 20 June 2025
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
BERNADETTE ROGERSClaimantANDREW WILLSDefendant
Ben Haseldine (instructed by Kleyman & Co Solicitors Ltd) for ClaimantOliver Ingham (instructed by Lawcomm Solicitors) for DefendantDealt 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.

HHJ Paul Matthews :

[1]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.”
[2]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 … ”
[3]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.[4]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.[5]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.[6]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).[7]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.”
[8]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.[9]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.[10]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.[11]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.[12]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.[13]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 the top of the first page of the draft judgment, or that, if he did read them, he misunderstood them. The draft was stated to be “confidential to the parties and their legal representatives”. Yet the claimant’s husband must have known that he was neither of these.[14]I asked that the claimant’s husband make a witness statement setting out the sequence of events from his point of view. He did this by a witness statement dated 6 June 2025, in which I understand he was assisted by the claimant’s solicitors. I am grateful for this. In this statement, he refers to the matters which I have already mentioned, including receiving draft judgment in his own email inbox and reviewing it with his wife (the claimant).[15]He says in particular that “The email was sent to [the claimant’s] email address, but as I received it in my inbox (to my email address), I had understood I was blind copied into the email”. The incongruity of being sent an embargoed draft judgment by blind copy email does not seem to have occurred to him. That incongruity ought at the least to have put him on enquiry, so that he asked someone (in particular the claimant’s solicitors) whether he should indeed have received it. But he did not do so.[16]He also says that at 6:48 PM on 3 June 2025 he received an email into his inbox from claimant’s solicitors, containing suggested typographical errors to the judgment. This had also been sent to the claimant’s email inbox. At 7:10 PM Dr Rogers sent a message “into a WhatsApp group with my solicitors which we use for urgent communication”. (I do not know why he refers to “my solicitors”. Their client was his wife, not him.) Dr Rogers’ message in part read “Thanks for forwarding the draft judgment. Great news. Will Ben check the legal paragraphs?” The reference to “Ben” in this message is to the claimant’s counsel. The important point is that the claimant’s solicitors were now for the first time aware that the claimant’s husband had seen the judgment.[17]At about 12 noon on 4 June 2025 the claimant told her husband that the senior partner of her solicitors called her and told her that the draft judgment had only been sent to her, and that no one else should have read it. According to Dr Rogers, he was “somewhat confused by this as I had believed I had been blind copied into the email or perhaps that it had been forwarded on to me. When I read the email from [the claimant’s solicitors], I did not consider myself a ‘third party’.”[18]I have to say that I detect a degree of belligerence here. Dr Rogers does not explain why he did not consider himself to be a third party. He knew very well that he was not a party to these proceedings. He was simply a witness, and that was all. The mediaeval idea that man and wife are one person in law was exploded long ago. He had no proper basis for supposing that he was exempted from the embargo which prevented third parties from knowing about the draft judgment. And, yet, as I have already said, he did not raise any question, either with his wife, or with his wife’s solicitors, or with the court, as to whether he was entitled to see the judgment.[19]In my judgment, Dr Rogers, once he was aware that he had been sent a judgment which, according to its express terms, he was not entitled to see, should have done something to raise the matter, whether with his wife’s solicitors, or with the court, to find out what the position was. He did not do either of these things. In my judgment, this was a serious error on his part. He may wish to say that he did not realise that that is what the embargo said. And yet he downloaded and opened a document which at the top of the first page said “IN CONFIDENCE AND SUBJECT TO EMBARGO”. But, on the evidence which he has put forward, he did not go on and read the rest of the terms of the embargo. Instead, he went on to read the whole of the embargoed document.[20]I may say at once that I acquit him of any intention deliberately to breach the embargo. But I think he was wrong simply to continue, whether in the belief that he had been blind copied (which was not in fact true, but makes no difference in law whatsoever) or somehow was exempted from the express terms of the embargo (also wrong). A person who is in any doubt as to whether a court order requires that they do or do not do something should not just push blindly ahead. That person should stop whatever it is he or she is doing, and seek clarification. Dr Rogers did not do so.[21]I gave the opportunity to the defendant to make such submissions or comments as he wished. His counsel, having seen the witness statement of Dr Rogers, simply said this:
“ I do not make any specific submissions as to any steps the Court ought to take or not take.”
It is fair to say that there was a reservation as to the future, but I do not need to deal with this now. In these circumstances, I have to decide what I should do.[22]First of all, I do not consider that I should take any further steps in relation to the claimant’s solicitors. As to them, although I have suggested an improvement for the future, I do not think they failed in principle to bring home the obligation of confidentiality to that client, as was their duty. It is simply a pity that she did not understand its extent.[23]Secondly, in relation to the claimant herself, it appears from the material I have seen that she made no deliberate decision over the forwarding of the email to her to her husband. If there was automatic forwarding in operation, she had evidently forgotten about this. For the future, it is important that, in these days of modern technology, a party should not forget about the possibility of automatic forwarding.[24]But there is a third stage in my consideration, and that concerns both the claimant and her husband, Dr Rogers. I am going to assume, in their favour, that, despite the fact that they are intelligent people, they simply did not read the beginning of the document that they were sent, so as to inform themselves of the terms of the embargo, and thus raise in their minds the question whether Dr Rogers should be reading it at all. In my judgment, that failure was culpable. The document was headed “IN CONFIDENCE AND SUBJECT TO EMBARGO” and in capitals. If those words do not explain to the lay reader that here is something important that they should read carefully, then I do not know what the appropriate words might be.[25]Judgments are handed down in draft under embargo in order to enable the parties to make suggestions for the correction of errors, to agree orders on consequential matters if they can be, and to prepare submissions if they cannot, and to prepare themselves for the publication of the judgment, and not for any other purposes: R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, [24].[26]The embargo on disclosing the whole draft judgment applies just as much to disclosing any part or parts of it, even including short quotations: R (Glaister & Carr) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), [21]. Indeed, unless the terms of the embargo expressly so permit, even the substance of the judgment under embargo cannot be disclosed to other people at any time (however short) before the judgment becomes public: R (Kinsey) v Lewisham LBC[2022] EWHC 2723 (Admin), [11].[27]The breach of an embargo on a draft judgment is a serious legal matter, which may lead to proceedings for contempt of court, and punishment in appropriate cases. A potential breach of an embargo on a draft judgment must therefore be reported to the court as soon as it is discovered, by the person who discovered it: Optis Cellular Technology Inc v Apple Retail UK Ltd [2021] EWHC 2694 (Pat); Public Institution for Social Security v Banque Pictet [2022] EWCA Civ 368, [10](vi); Match Group LLC v Muzmatch [2022] EWHC 1023 (IPEC), [39]; R (Glaister & Carr) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), [7].[28]In other circumstances, I would have considered whether it was necessary to take the matter further. However, in the present case I bear in mind that, on the basis of the material before me, Dr Rogers did not in fact do anything other with the draft judgment but discuss it with his wife, the claimant, in order to identify potential suggestions for correction, and in particular did not transmit it to any other person. So, no real harm has been done. I also bear in mind the fact (though it is by no means conclusive) that the defendant does not seek to make any specific submissions as to steps that the court ought to take.[29]As a result, I will do nothing further on this occasion. But both the claimant and Dr Rogers should bear in mind that, when the court gives an instruction, it is intended to be followed. On a future occasion, the court may not be so generous.