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Ellis & Ors v John Benson Limited [2025] EWHC 2097 (KB)

August 10, 2025

Ellis & Ors v John Benson Ltd – High Court Ruling on Breach of Judgment Embargo

Factual Background

In Ellis & Ors v John Benson Limited [2025] EWHC 2097 (KB) the case involved a group of twenty claimants (Steven Ellis and others) who had sued John Benson Limited (“JBL”). After the trial concluded, the High Court circulated a confidential draft judgment to the parties’ legal representatives under a standard embargo. This embargo was clearly stated: the draft was marked “IN CONFIDENCE AND SUBJECT TO EMBARGO” and was not to be disclosed beyond the parties and their lawyers. The accompanying email from the judge’s clerk emphasised that the draft judgment was for the parties’ eyes only and “THIS IS NOT TO BE DISTRIBUTED.” In line with Civil Procedure Rules (CPR) Practice Direction 40E, the draft was provided so the parties could propose corrections or consider consequential matters before formal hand down, and it warned that any breach of these confidentiality obligations could be treated as contempt of court.

On 29 July 2025, Counsel for the Defendant, Mr. Andrew Butler KC, even sought clarification from the Court that certain advisers, competition law barristers who had assisted on the case, could be treated as part of the legal team and thus receive the draft under the embargo. However, on the following day it emerged that Mr. Benson, of the defendant company, had already breached the embargo. Believing mistakenly that parties included anyone involved in the case, Mr. Benson emailed the Defendant’s trial witnesses on 29 July to inform them of the outcome of the case. He did not circulate the judgment document itself, but he communicated the result to those witnesses, assuming this was permitted since they had testified at trial.

The breach came to light on 30 July 2025, when the Claimants’ solicitor informed the Defendant’s legal team that non parties had got wind of the judgment’s outcome. Mr. Benson’s misunderstanding was promptly reported to the judge by the Defendant’s counsel, and immediate steps were taken in response. Mr. Benson fully cooperated: he swiftly provided a detailed witness statement admitting and explaining his mistake, and he gave an undertaking to the Court not to further disclose the draft judgment’s contents. The Defendant’s solicitors also obtained confidentiality undertakings from 7 of the 9 witnesses who had received Mr. Benson’s email, in order to contain the breach. Mr. Benson was described as being “profoundly apologetic” for the incident. These events led the Court (Freedman J) to address the embargo breach and determine what consequences, if any, should follow.

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Legal Framework

Practice Direction 40E of the Civil Procedure Rules sets out the procedure for circulating draft judgments to parties under embargo. Such drafts are provided in confidence to allow parties to suggest corrections, prepare for consequential hearings, and get ready for the public release of the judgment. Until formal hand down by the court, no party or lawyer may disclose the draft or its substance to anyone not authorised. The draft judgment in this case explicitly reminded the parties that any breach of the embargo could be considered contempt of court, a serious offence.

The courts have stressed the importance of these embargoes. In HM Attorney General v Crosland [2021] UKSC 58 the Supreme Court explained that restricting disclosure of a draft judgment before hand down serves a vital purpose and is a proportionate limitation on open justice. It allows the court’s final published judgment to be accurate and authoritative, and maintains public confidence in the administration of justice. As the Supreme Court noted, an embargo is “clearly necessary in order to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result”.

Similarly, the Court of Appeal in The Counsel General for Wales v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 highlighted that breaches of embargo can have serious consequences. The impact of a breach will depend on the case, some judgments might contain sensitive personal information or market sensitive data, but in all instances the court must ensure that its judgments enter the public domain only at the appropriate time and in an appropriate manner. The embargo exists for good reason and compliance is expected of all parties. A knowing or reckless breach risks contempt proceedings, which can result in sanctions including fines or even imprisonment in extreme cases.

Judgment

Freedman J (High Court, King’s Bench Division) dealt with the matter as a standalone judgment on the embargo breach. He first addressed an evidential issue: the Claimants argued that the Court could not fully assess the seriousness of the breach without seeing the exact email Mr. Benson had sent to the witnesses, which had been partially redacted for privilege. The Defendant maintained that the redacted portions of that email contained privileged legal advice and were not relevant to the breach’s impact. The judge agreed that privilege had not been waived merely by this inadvertent disclosure to witnesses. He was satisfied that he could evaluate the gravity of the breach without inspecting the redacted content, and he declined to order disclosure of the full email.

Turning to the breach itself, the judge acknowledged that Mr. Benson had acted under a mistaken belief, but nonetheless found the breach to be objectively serious. In his judgment, Freedman J outlined several aggravating features of the incident:

Unreasonable Interpretation: It was unreasonable for Mr. Benson to think that witnesses who gave evidence for the Defendant were parties to the action entitled to see the draft judgment. The term parties in the embargo clearly referred only to the actual litigants, the Claimants and the Defendant, not third party witnesses.

Lack of Warning: Even though Mr. Benson erroneously treated the witnesses as if they were parties, he failed to inform them that the judgment was confidential and subject to an embargo. As a result, those witnesses were unaware of the need to keep the information secret.

Wider Dissemination: Because of this, the witnesses passed on the outcome of the case to others. At least one identified person who was not a witness learned of the result, and it was reported that up to three other unidentified individuals may also have been told. In other words, the breach extended the reach of the information beyond the initial circle of witnesses, contrary to the court’s embargo.

Risk of Further Spread: Although steps were being taken to secure undertakings from those involved, the Court noted there remained a real risk that the information could spread further. Once the confidentiality of the draft judgment was compromised, it was possible that other persons might now know the substance of the yet unpublished judgment.

Despite these concerns, the judge also recognised a number of mitigating factors in Mr. Benson’s favour:

Nature of the Case: The underlying judgment did not involve price sensitive or highly personal information that could have caused significant prejudice or harm by early disclosure. This reduced the potential damage caused by the breach.

Prompt Remedial Action: As soon as the Defendant’s solicitors became aware of the breach, they acted swiftly and responsibly. Within hours, Mr. Benson was advised to contact the witnesses and obtain confidentiality undertakings from them. The legal team immediately notified the Court of the issue and took steps to contain it.

Cooperation and Candour: Mr. Benson himself responded quickly and cooperatively. He prepared a witness statement within a matter of hours, candidly setting out exactly what had occurred and acknowledging his error. He also actively reached out to the witnesses to secure their written promises (undertakings) not to divulge the judgment further.

Unreserved Apology: Mr. Benson apologised unreservedly for the breach at the first opportunity, in his witness statement. He accepted that he had misunderstood the embargo rules and expressed genuine remorse for the lapse. The Court took this sincere apology into account, noting that Mr. Benson clearly now appreciated that witnesses are not considered parties for the purposes of draft judgments.

In light of the above factors, the High Court reached a balanced decision. Freedman J concluded that, although the embargo had indeed been breached, formal committal (contempt) proceedings against Mr. Benson were not necessary or proportionate in the circumstances. The Court was persuaded that Mr. Benson’s mistake was genuine, albeit mistaken, and that he had done everything one could reasonably expect afterwards to mitigate the breach’s effects. The prompt remedial steps and the absence of malice weighed heavily against pursuing punitive action.

Freedman J decided that no sanction would be imposed on this occasion beyond the delivery of this warning judgment. He declined to initiate committal proceedings for contempt, exercising the Court’s discretion to forgive the breach given the mitigation. However, the judge made clear that this leniency was tied to the specific facts, particularly the prompt containment and apology, and should not be seen as diminishing the seriousness with which such breaches are viewed.

Conclusion

The High Court’s judgment in Ellis & Ors v John Benson Limited serves as a cautionary tale about the strict duty of confidentiality attached to draft judgments under embargo. In this case, a misunderstanding led the Defendant’s principal to share the outcome of a judgment with witnesses, breaching the embargo. The Court acknowledged the breach as a serious matter but, due to the prompt remedial actions and sincere apology, chose not to punish Mr. Benson with contempt proceedings.

Freedman J’s decision highlights both the importance of complying with embargoes and the court’s willingness to consider context and mitigation. Parties and their legal teams must exercise great care to confine draft judgments to those permitted and ensure everyone involved understands the embargo’s scope. Even an inadvertent breach can risk undermining the authority of the court and the orderly administration of justice. Ultimately, this judgment underlines that while mistakes may be forgiven, the obligation to observe court embargoes is paramount, and any doubts about who may be told of a draft judgment’s contents should be resolved by seeking guidance before disclosure. The case stands as a reminder that breaching a judgment embargo can amount to contempt, and only timely and genuine remedial efforts are likely to avert serious consequences.

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This article is provided for general information only and does not constitute legal advice. The law and guidance may change and the application of legal principles depends on the facts of each case. If you require advice about your specific circumstances, please contact Carruthers Law.