Mostyn: Unacceptable example of arbitrariness
The “inexplicable differences” in the embargo rules for draft rulings in the King’s Bench Division, Family Division and Crown Court are “completely unacceptable”, a High Court judge has said.
Mr Justice Mostyn directed that his decision in Gohil v Gohil & Ors [2023] EWHC 1567 (Fam) be sent to the civil, family and criminal procedure rules committees “with a request that they seek to harmonise the rules on embargoed draft judgments”.
The Family Division judge’s call came in a financial remedies case that began 21 years ago and was reopened over the husband’s non-disclosure of assets. The husband was also found guilty of laundering £25m and other offences, leading to a 10-year jail sentence.
The Crown Prosecution Service issued confiscation proceedings in which judgment will be handed down next month.
Mostyn J observed: “Although back in 2017 I had indicated that perhaps a way could be found for the same judge (maybe even me) to have heard the confiscation proceedings in the Crown Court in tandem with the wife’s financial remedy proceedings in the High Court, this was not possible to arrange.”
The Crown Court issued draft rulings entitled ‘Findings following confiscation proceedings’ which, “perhaps surprisingly”, contained no statement on its face “limiting who could be apprised of its contents”, Mostyn J said.
“Nothing was said explicitly by the judge that suggested that there was a prohibition on any party disseminating the contents of the draft judgments to anyone, although such a prohibition could be inferred.
“If that is so, Mr Gohil has breached the prohibition and may be technically in contempt of court because in his position statement he has told me a number of things about the contents of the draft judgments.”
The judge noted that, while KBD rulings came with “a suitably fierce warning” about the embargo and how breaching it was a serious contempt of court, there was nothing in the Family Procedure Rules or rubric on the front of rulings “which explicitly says that breach of this non-disclosure requirement is a contempt of court”.
He added: “However, the prohibition on communication of the contents of the draft judgment other than to clients is easily construed as having an injunctive character and so it is possible to infer a prohibition equivalent to that applying in the civil courts.
“That said, it is obviously highly undesirable that something as important as contempt of court should or could be derived from such ambiguous language.”
The position in the Crown Court was “even worse”, with no rule or practice direction on the use of draft embargoed judgments “and the judgments which are sent out in draft contain no warning rubric at all”.
Mostyn J said: “It is unacceptable that someone would almost certainly be in contempt of court if she discloses a draft KBD judgment to a journalist; might well not be if she discloses a draft Family Division judgment; but in all likelihood would not be if she discloses a draft criminal judgment. This is an unacceptable example of arbitrariness.”
This is the latest in a series of rulings on embargoed rulings. Last week, a local authority that sent out an embargoed press release about a High Court ruling that had not yet been handed down apologised to the judge.
Last month, the latest edition of the King’s Bench Division guide addressed the issue of embargoes for the first time following a spate of cases in which they were breached.
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