The Public Institution for Social Security v Banque Pictet & Cie SA & Ors

Factual and Procedural Background

This judgment concerns breaches of an embargo on the disclosure of the contents of a draft judgment provided confidentially to parties and their lawyers in a high-profile appeal. The appeal involved a Claimant Appellant ("Plaintiff") challenging a decision by a lower court judge who ruled that the court lacked jurisdiction over certain Defendant Respondents and declined jurisdiction over others. The draft judgment was circulated under strict confidentiality terms ("the Embargo") with a specified hand-down date and time, which was later postponed by one day.

Permission was granted to circulate the draft judgment to identified foreign legal representatives subject to embargo restrictions. Despite these measures, information about the appeal's outcome was published on social media before the official hand-down, prompting allegations of breach of the Embargo. The court initiated inquiries, requesting confirmations from all parties and their counsel denying responsibility or knowledge of how the information was leaked. One solicitor ("Mr Oliver") admitted to inadvertently breaching the Embargo by misdirecting a confidential message to a large group of international lawyers, although this was not linked to the social media leaks. The court subsequently directed parties to share their responses and make submissions on the matter, but no further applications were made.

Legal Issues Presented

1. Whether there was a breach of the court-imposed embargo on the draft judgment's confidentiality.
2. The appropriate response and remedies for breaches of such embargoes.
3. The extent of liability and responsibility among the parties and their legal representatives for the embargo breach.
4. The procedural steps to address and prevent future breaches of court embargoes on draft judgments.

Arguments of the Parties

Plaintiff's Arguments

• Denied responsibility for the social media leaks revealing the judgment's substance.
• Conducted internal and external inquiries, including with Swiss legal representatives, finding no basis for allegations of breach by the Plaintiff or their lawyers.

Defendant's Arguments

• Alleged a "very strong inference" that the Plaintiff or its lawyers were responsible for the leaks, given their unique access to the draft judgment and their connection to the region where the information was published.
• Maintained that the breach was serious and suggested further breaches beyond the admitted solicitor error must have occurred.

Solicitor Mr Oliver's Explanation

• Admitted to inadvertently breaching the Embargo by mistakenly sending a confidential message about the judgment to a large social group of international lawyers, rather than the intended smaller group of senior partners.
• Recognised post-facto that the communication was inappropriate and should have been reported to the court immediately.
• Asserted no connection between his error and the social media leaks, supported by confirmations from message recipients that no further disclosure occurred.
• Expressed deep regret and offered a full apology to the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the embargo on the draft judgment was clear and strictly enforced, designed to protect the integrity of the judicial process by restricting dissemination to purposes such as error correction and preparation for publication. The court found that breaches of this embargo had indeed occurred, as evidenced by premature disclosures on social media. However, the precise source of these leaks remained unidentified despite extensive inquiries and denials from all parties.

The court accepted the solicitor's admission of an inadvertent embargo breach through a misdirected confidential message, noting that this breach was promptly mitigated by deletion and that no evidence linked this incident to the social media leaks. The court emphasized the increasing frequency of embargo violations in the digital era and stressed the necessity for all recipients of draft judgments to fully understand the embargo's scope and the importance of exercising extreme caution in communications.

Given the lack of evidence connecting the admitted breach to the public disclosures and the absence of further applications or submissions, the court determined that no additional investigatory or punitive measures were warranted beyond the publication of this judgment.

Holding and Implications

The court held that breaches of the embargo on the draft judgment had occurred, including an admitted inadvertent breach by a solicitor, but that the source of the public leaks remained unproven and unidentified.

The court decided that no further steps beyond this judgment's publication were necessary, recognizing the gravity of embargo breaches while balancing the practicality and potential futility of further investigations. The decision reinforces the critical importance of strict adherence to court embargoes, especially in the context of electronic communications, and underscores the obligation to report breaches promptly. The ruling does not establish new precedent but serves as a cautionary reminder of the court's expectations and the consequences of embargo violations.