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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Glaister & Anor, R (On the Application Of) v Assistant Coroner For North Wales [2025] EWHC 1018 (Admin) (30 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/1018.html Cite as: [2025] EWHC 1018 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
B e f o r e :
____________________
THE KING (GLAISTER and CARR) |
Claimants |
|
- and ASSISTANT CORONER FOR NORTH WALES |
Defendant |
|
and (1) FAMILY OF BENJAMIN LEONARD (2) THE SCOUT ASSOCIATION |
Interested Parties |
____________________
for Fieldfisher LLP, Jill Greenfield and Andrew Dodd
David Halpern KC (instructed by DAC Beachcroft LLP) for Nicola Pearson
Ben Smiley by written submissions (instructed by Clyde & Co LLP) for the Leonard Family
The other parties did not appear and were not represented
Hearing dates: 18.3.25
Further evidence: 25.3.25
Draft judgment: 14.4.25
____________________
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
FORDHAM J:
Introduction
i) The CEDJ was circulated by my clerk on 20.1.25 at 10:23. Hand-down of the finalised judgment was scheduled for 30.1.25 at 10:00.
ii) On 29.1.25 at 13:27 my clerk received an email from Mr Hodivala KC, saying that an individual at TSA had been approached for comment by a journalist who appeared to have a copy of the CEDJ. An attached email from a BBC journalist to TSA (29.1.25 at 12:46) said "I have had a draft embargoed copy ahead of its official publication". I was also shown an earlier email to TSA from a Guardian journalist (12:59 on 28.1.25) which said "I hear judgment is going to be handed down on Thursday". That earlier email had not been taken by Kennedys to indicate receipt of the CEDJ or knowledge of the outcome.
iii) The Court responded. I alerted all legal representatives (29.1.25 at 13:56), sharing the emails. I invited, and received, observations as to next steps. On my behalf, the BBC journalist was contacted by the Judicial Press Office (29.1.25 at 15:02) and by Kennedys (at 16:07): see §26 below.
iv) At 15:31, Jill Greenfield of Fieldfisher emailed to say that "a breach has been identified within Fieldfisher". On 30.1.24 at 00:23 Mr Richmond KC emailed with further information: that "the source of the breach of the embargo" was Nicola Pearson, "a Publicity and Media Manager at Fieldfisher"; that "upon discovering the breach" Ms Greenfield had taken "urgent action" and "immediately instructed Ms Pearson" to "name each of the individuals who had been sent the judgment", to "contact each of them to notify them of the embargo" and to require them "to return" the CEDJ; that Ms Pearson "has complied" with those instructions; and that copies of the CEDJ "have been returned."
v) The finalised judgment was duly handed-down on 30.1.25 at 10:00. It is [2025] EWHC 167 (Admin).
Dual Enquiry
The Position of the Media
The Duty Immediately to Report a Breach to the Court
All recipients [of a CEDJ] need to understand clearly Any breach of an embargo must be drawn to the court's attention as soon as it is identified.
This was repeated in Match Group LLC v Muzmatch [2022] EWHC 1023 (IPEC) at §39.
Shortcomings
i) By way of context, I record that Ms Greenfield is an experienced solicitor but her practice has not tended to encounter CEDJs; that she clearly and correctly told the Leonard Family that they could not discuss the judgment or outcome with anyone (20.1.25 at 18:15); that she gave a verbal explanation along these same lines to Ms Pearson (24.1.25 at 11:20); and that upon learning that the CEDJ had been sent to Steve Morris at the Guardian she reached out to Mr Dodd promptly for his guidance (28.1.25 at 11:01). Nevertheless, there were in my judgment the following shortcomings on the part of Ms Greenfield. First, on and after receiving the CEDJ from the Court (20.1.25 at 10:23), Ms Greenfield did not ensure that she fully understood the Court Embargo. That meant she was not aware that internal marketing-preparations were impermissible. It also meant she was "not sure what the rules are" (27.1.25 at 12:06) regarding "embargoed" disclosure to journalists. Secondly, when emailing the CEDJ to Ms Pearson (27.1.25 at 11:59), Ms Greenfield did not give clear written instructions, notwithstanding that Ms Pearson is a non-lawyer whose roles within the firm included external-facing media and marketing roles. Thirdly, Ms Greenfield did not step in and stop Ms Pearson's communicated plans to send the CEDJ to journalists (from 27.1.25 at 12:04); to send quotes to journalists (from 27.1.25 at 14:34); and to carry out internal marketing-preparation steps (from 27.1.25 at 17:16).
ii) By way of context, I record that Ms Pearson is a non-lawyer whose roles within the firm included external-facing media and marketing roles; and that she communicated to Ms Greenfield her plans to send the CEDJ to journalists (from 27.1.25 at 12:04); to send quotes to journalists (from 27.1.25 at 14:34); and to carry out internal marketing-preparation steps (from 27.1.25 at 17:16). Nevertheless, there were in my judgment the following shortcomings on the part of Ms Pearson. First, having received a verbal explanation (24.1.25 at 11:20) and then the CEDJ from Ms Greenfield (27.1.25 at 11:59), Ms Pearson did not read the Court Embargo; nor did she ask anyone for help in understanding what it meant. That was so, even when Ms Pearson decided to tell the client (Mrs Leonard) that it was permissible to speak to journalists about the CEDJ, contradicting the message to the family from Ms Greenfield. Secondly, Ms Pearson sent the fourth of four emails attaching the CEDJ (to Mr Hurst on 28.1.25 at 15:13) after receiving instruction from Mr Dodd (28.1.25, after 11:21) that it was impermissible to send the CEDJ to journalists. Thirdly, on the afternoon of 29.1.25 knowing that the Court was aware that the BBC had the CEDJ and the firm was aware that the Guardian had the CEDJ Ms Pearson did not say to Mr Dodd, Ms Greenfield or Mr Richmond KC that she had also sent it to ITV (Mr Scott) and the Press Association (Mr Hurst).
iii) By way of context, I record that Mr Dodd responded promptly (28.1.25 at 11:21), making clear to Ms Greenfield and Ms Pearson that the Court Embargo did not allow the CEDJ to be sent to any journalist, and instructing that communications with journalists about the judgment be shut down. He also promptly discussed the matter with Ms Greenfield, Mr Richmond KC and Ms Pearson (on 29.1.25 at 14:24) after being alerted to the Court's email. Nevertheless, there were in my judgment the following shortcomings on the part of both Ms Greenfield and Mr Dodd. First, having established (on 28.1.25 at 11:21) that Ms Pearson had sent the CEDJ to Steven Morris at the Guardian, Mr Dodd and Ms Greenfield did not obtain the full picture ("find out what happened with care, urgency and rigour"); or inform Counsel; or report the position to the Court (pursuant to the obligation described at §7 above); or provide clear written instruction to Ms Pearson. Secondly, knowing (on 29.1.25 at 13:57) that the Court was now aware that the BBC had the CEDJ, Mr Dodd and Ms Greenfield did not tell Mr Richmond KC that they had known of a breach the previous day.
Breaches
i) The following conduct of Ms Pearson constituted a breach. First, her actions in sending two external emails to journalists which implied the outcome: 24.1.25 at 11:44 to Louis Goss at the Daily Telegraph; and 24.1.25 at 12:55 to Rajeev Syal at the Guardian. Secondly, her actions in sending the CEDJ externally to four journalists: (i) 27.1.25 at 12:46 to Steven Morris at the Guardian; (ii) 27.1.25 at 13:05 to Phil McCann at BBC North West; (iii) 27.1.25 at 13:07 to Timothy Scott at ITV; and (iv) 28.1.25 at 15:13 to Pat Hurst of the Press Association. Thirdly, her actions in providing quotations and content to journalists: 28.1.25 at 10:53 to Mr Scott (ITV); 28.1.25 at 11:00, 14:44 and 21:04 to Mr Morris (Guardian); 29.1.25 at 12:40 to Mr Hurst (PA). Fourthly, her actions in the organising (on 28/29.1.25) of marketing-preparation steps for the firm. These were a video interview on 29.1.25 (shortly after 12:00) given by Ms Greenfield and the writing of a case study. These steps involved disclosure of the substance of the CEDJ to the firm's Social Media Executive (Kieran Kaey) and Digital Marketing Manager (Alaa Akwan).
ii) The following conduct of Ms Greenfield constituted a breach. First, her actions in commenting on the outcome of the case in an interview with Mr Morris (28.1.25 at 10:00). Secondly, her actions in approving quotations and content (28.1.25 at 14:44) for Mr Morris. Thirdly, her actions in participation in the marketing-preparation steps, by giving the internal video interview on 29.1.25 (shortly after 12:00).
The Court Embargo
Note the box on page 1.
The box on page 1 contained this text, within which Counsel General was a hyperlink to a Court of Appeal judgment:
IN CONFIDENCE AND SUBJECT TO EMBARGO. This is a draft judgment to which CPR40PDE applies. The judgment will be handed down electronically (in accordance with the Practice Guidance dated 16.12.21) at 10am on Thurs 30.1.25. 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 Court will wish to hand down its judgment in an approved final form, and at the same time make an Order disposing of the case. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (nil returns are required), together with any submissions on unagreed consequential matters and a draft Order (agreed to the extent possible), to the clerk to Fordham J [email], by 12 noon on Tues 28.1.25 so that changes can be incorporated (if accepted) in the handed down judgment, all consequential matters resolved in the judgment and the Order made. The official version of the judgment will be available from the clerk after hand down.
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.
24 [J]udgments are handed down in draft under embargo 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 itself or its substance beyond those that I have specifically mentioned is forbidden (unless the court expressly gives consent)
26 [D]rafting press releases to publicise chambers is not a legitimate activity to undertake within the embargo. It would be different if a corporate party wished to issue a press release immediately on hand down to explain to the public what had occurred in the judgment. But barristers (and solicitors) are not parties to the proceedings; they are legal representatives, who are provided with the draft judgment to make suggestions for the correction of errors and to prepare submissions and agree orders on consequential matters. They have no need to prepare themselves for the publication of the judgment, as an individual or other party might need to do. Of course, counsel and solicitors can properly assist and advise their client to make such preparations but that was not what happened in this case.
28 Each of para 2.4 of CPR PD 40E, the standard rubric on draft judgments and the standard form e-mail sent out with judgments are in mandatory form. The latter two documents say that: "The parties must take all reasonable steps to ensure that it is kept confidential" [P]ara 2.4 of CPR PD 40E provides that "neither the draft judgment nor its substance is [to be] disclosed to any other person or used in the public domain", and "no action is [to be] taken (other than internally) in response to the draft judgment, before the judgment is handed down". Counsel and solicitors are personally responsible to the court for ensuring that these mandatory requirements are adhered to. It is their duty to explain those same obligations on the parties to their clients.
There are passages drawing attention to Counsel General in the Administrative Court Judicial Review Guide 2024 at §11.6 (freely accessible online); in the King's Bench Guide 2024 §14.33 (freely accessible online); and in the White Book 2024 §40.2.3. Articles on Counsel General appeared in the Law Society's Gazette at 2023 120(7) p.6; and the New Law Journal 2022 172 (7971) pp.9-10. The Court of Appeal had itself reinforced the message on 22 March 2022, in Banque Pictet at §18.
About the Journalism Embargo
The meaning of the term 'under embargo' in journalism. I generally work directly with individual journalists rather than circulating press releases, but in my previous roles, I would regularly send around what press officers and journalists refer to as "embargoed press releases". This refers to press releases which are sent to news reporters to alert them ahead of the scheduled release of the information. The original custodian of that news sets the date and time on which it will be released. Reporters agree to not publish any news about it until the date and time agreed. The term "embargo" carries a different and non-legal meaning in this context. This practice is to allow multiple media outlets to report the story simultaneously, rather than one journalist having a 'scoop'. Sending an embargoed release allows journalists to research the story and to interview the parties before the embargo ends. It also might be to ensure reporting coincides with the publication of an academic paper, for example. It relies on sufficient information being shared to pique a journalist's interest to report the story. This is a recognised and trusted way of working between press officers and journalists. There is no formal or legal repercussion for a journalist who breaks an embargo in this context, but it would damage the relationship between the parties and may undermine the journalist's reputation.
Ms Pearson is here describing an "original custodian of news" who chooses to use a Journalism Embargo to set a date and time on which that "news" will be released. The "trusted" journalist is said to "agree" with the custodian. If the "trusted" journalist breaks the agreement, the repercussions are not "formal" or "legal". Rather, it could cause damage to "the relationship" between the custodian and the journalist; and it could undermine the journalist's reputation. These are the elements within the description. But there is not a single element, within the description, which reads-across to the Court Embargo.
The Court Embargo is Fundamentally Different from the Journalism Embargo
Express Terms of the Court Embargo
i) First, the CEDJ is expressly "confidential". Its circulation is highly restricted. That expressly means "the draft" and its "substance". They are both expressly "confidential to the parties and their legal representatives". They are expressly not to be "disclosed to any other person or made public in any way". A journalist is an "other person". Disclosure to a journalist is forbidden. That is independent of whether the judgment or outcome would be being "made public". There is an express duty on the parties, who "must take all reasonable steps to ensure that it is kept confidential". The Court Embargo and Counsel General make clear that this "all reasonable steps" duty applies to all parties and all lawyers, not just particular types of party (CPR40PDE §2.6).
ii) Secondly, the permitted use of the CEDJ is expressly restricted to the specified purposes. The CEDJ "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". No part of these stated purposes extends to allowing persons who are not "parties" to "prepare themselves for the publication of the judgment". That would include a journalist.
iii) Thirdly, the CEDJ is expressly a confidential "draft" judgment. The contents of the judgment to be handed down have not been finalised. Those contents may change. It is the finalised judgment which will be the Court's "approved" judgment. The document says "Confidential Draft Judgment", not "Confidential Judgment". It is expressly stated that this is "the draft"; that the Court "will wish to hand down its judgment in an approved final form"; that the CEDJ is to be "used to enable the parties to make suggestions for the correction of errors"; that the deadline for suggestions is so that "changes can be incorporated", if they are "accepted" by the Court; and that the "official version of the judgment will be available from the clerk after hand down". The CEDJ is not the Court's judgment. It will not become the Court's judgment. It is not a document being held ahead of its publication. What is published is the approved judgment.
A Big Mistake
Embargoed Disclosure to Journalists is a Breach
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.
Mr Younas makes clear that he is deeply remorseful and wholeheartedly apologises to the court for his actions regarding this disclosure of information to journalists. His explanation is that he honestly believed that he could communicate the outcome of the case and share a press release with journalists provided it was done on a strictly confidential basis and provided the information was not published before the judgment was formally handed down. He comments that, when he worked in banking, it was common for embargoed information to be dealt with in such a manner.
As the Court said (§34):
the outcome of the case was not something that should have been the subject of press releases sent to journalists prior to the formal handing down of the judgment, even on terms that they respected the embargo.
It was a breach of the Court's embargo to send an EPR [Embargoed Press Release] to the press, communicating substantive content from the CEDJ. This was a breach, notwithstanding that the publication at 09:15 on 11 July 2022 was not to the public at large but to a portion of the press; that it was premature by 45 minutes; that it bore an 'embargo' of its own, as to reporting to the public; and that there was no press reporting until after 10am indeed not until 13:06 on 11 July 2022. Mr Parker Humphreys mistakenly thought that a press release could be sent out prior to hand-down, with an 'embargo on reporting' prior to 10am. This sort of 'media embargo' is standard practice for other announcements in the course of the Defendant's general business, where Mr Parker Humphreys would usually liaise with journalists to issue press releases. His approach was a "media embargo" rather than a "court embargo".
Indications and Quotes were a Breach
Further Communications as Further Breach
Internal Marketing-Preparations were a Breach
Shortcomings as to Clarity and Proactivity
The Implications of Inadequate Clarity and Proactivity
i) First, it means that the Court was only alerted to the breach of the Court Embargo because a journalist (Mr Herd) happened to contact another party (TSA) and happened to refer to having received a copy of the CEDJ. There is a striking email from Ms Pearson to Mr McCann (29.1.25 at 14:12) in which she says "I think you passed on the judgment to George [Herd] without telling me, which is the problem". That is not the "problem". The "problem" is that the CEDJ and outcome were being shared with journalists by Ms Pearson. The true problem was recognised immediately by Mr Dodd when he was asked. But I think I can be confident that had Mr Herd not said what he said to TSA this Court would never have known of any breach. The firm did not tell Mr Richmond KC or the Court on 28.1.25 after 11:21. There was no plan to do so. The matter was addressed internally within the firm, and in communications with journalists. The Court was never involved in this matter by Fieldfisher. Fieldfisher was involved in the matter by the Court. And that was all because of the alert from TSA. For their part, Mr Richmond KC like Mr Hodivala KC knew that the Court needed promptly to be informed. The Court needs to be confident that it will be informed of a breach, fully and promptly, warts and all: see §7 above. The Court recognises that "this can be embarrassing and painful, but it is essential" (Optis Cellular at §19). Adverse findings or comments will always be accompanied by appropriate judicial acknowledgment of a party's candour and proactivity. There is here something more fundamental that any criticism or praise of any individual or organisation. The integrity of the justice system is always, for lawyers, a higher calling. I am confident that the lawyers at Fieldfisher understood, and understand, that. I am reassured by what I have been told about new measures within the firm.
ii) Secondly, it means there was no prompt and clear picture of exactly what had happened. If there had been proactive clarity, Fieldfisher would have had a clear and prompt handle on exactly what had been done. For example, the firm would have been able to tell the Court and Mr Richmond KC which journalists had been sent a copy of the CEDJ. As it happens, the Court was told of "a breach", and was given an impression of "urgent" action taken "upon discovering the breach" and "immediately". I am satisfied that Mr Richmond KC would not for his part have been using that language had he been made aware that in fact the firm had known of the breach more than 24 hours earlier.
iii) Thirdly, it means the Court was hampered in what it could do, and when it could do it. A message was sent to Mr Herd at BBC Wales by the Judicial Office (29.1.25 at 15:02) and by Kennedys (at 16:07), on my behalf: see §26 below. This could, and would, have been sent to others. But the only indication to Kennedys and to the Court of a journalist having received the CEDJ from Fieldfisher was Mr Herd of the BBC.
The Court's Communication
Dear Mr Herd, I am writing from the Judicial Press Office on behalf of the Judge in the Glaister and Carr judicial review case. The Court's published cause list will include the case for hand down of the final, public judgment at 10am tomorrow: Daily Cause List [link]. Confidential draft judgments are the subject of strict embargos with contempt sanctions. These obligations are essential to protect the integrity of the judicial process. This is explained at the top of page 1 of all draft judgments in a box. It is also explained in the published Administrative Court Judicial Review Guide [link] at 11.6.8. One of the barristers in the case, in discharging professional duties to the court, has alerted me to an email which suggests you hold a copy of an embargoed draft judgment and/or are aware of its contents. This gives rise to urgent and serious concerns, undermining the integrity of the court process. I am asking that you confirm as a matter of urgency that no step will be taken by you, and that you alert me to any step of which you are aware, in relation to the confidential embargoed judgment or its contents in this case. You can of course consult your in house legal team for any further advice on this matter.
I record here that Mr Herd replied promptly (29.1.25 at 15:14) to "reassure the court that I am acutely conscious that nothing can be published or reported relating to His Honour's draft ruling until this is made public by the court and/or delivered by His Honour tomorrow". I record that there is no evidence that anything was disclosed in the public domain by any journalist ahead of the hand-down (as to which, see Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 [2024] AC 983 at §157).
The Fourth Email (28.1.25)
Internal Candour (29.1.25)
The First Enquiry Function
The Second Enquiry Function
i) The serious problem at the heart of this case lay in treating a Court Embargo like a Journalism Embargo. It has happened before (§§19-20 above). It was a serious error. Whatever went on at 15:13 on 28.1.25, the problem had originated out of a misapprehension.
ii) Ms Pearson is not a lawyer. She does not have legal training. The firm knew this. She was not given clear instruction. Even Ms Greenfield a Partner did not fully understand the Court Embargo. And Ms Greenfield had responded (27.1.25 at 12:06) to a communicated plan for disclosure to journalists. That response did not ask Ms Pearson to stop or wait. Ms Pearson was open with Ms Greenfield about the key steps: the plan to send the CEDJ to journalists; the plan to send quotes; the plan to convene interviews; the plan to conduct marketing-preparation steps. Ms Pearson has fully cooperated with this process. I record, as a point in her favour, that it was Ms Pearson who volunteered the information that she had advised Mrs Leonard that it was permissible to speak to journalists. That was a contradiction of what Ms Greenfield had told the Leonard Family. But it is an incident which did not feature in Mrs Leonard's witness statement (28.2.25) or in any document. It came from Ms Pearson herself (3.3.25). I also record that, in her second witness statement (25.3.25), Ms Pearson wisely took the opportunity to face up to gaps exposed at the hearing in her first witness statement. I found the second statement to have been more frank and forthcoming than was the first, on specific concerns about gaps in the narrative. The opportunity I offered was taken.
iii) It is right to recognise the nature of a narrative judgment which makes clear what has gone wrong. There is a strong public interest in a full and fearless enquiry, with comprehensive and candid disclosure. The process is burdensome and exacting. The issuing of a public domain judgment like this one serves the public interest, recognises why all of this matters, and is a public record of breaches, shortcomings and concerns. It "is itself an adverse outcome": R v Counihan [2024] EWCA Crim 799 at §36. The Court has received sincere and heartfelt apologies, expressions of remorse and embarrassment (as in Counihan at §35). I have received a helpful and relevant description of what it has been like, in human terms, to undergo this enquiry process. I accept all of this evidence. I accept the apologies. I can see no risk of repetition.
iv) In the particular circumstances of this case, I think the right focus to adopt is on considerations of necessity and proportionality. I am satisfied, having issued this judgment, that further steps are neither necessary nor proportionate. The primary purpose of contempt proceedings to secure compliance with the Court Embargo stands achieved. The seriousness with which the Court treats these matters stands fully communicated and acknowledged. Any sanction would be likely to be a limited one. All of these are important considerations: see Wright v McCormack [2023] EWHC 1030 (KB) at §39. So far as the Court is concerned, this judgment is enough. The enquiry has been undertaken. Sufficient clarity has been achieved. Lessons will have been learned.