Dispute Resolution analysis: The Court of Appeal has considered a further case in which a litigant has breached the embargo imposed on reserved judgments. In light of the nature of the breach in this case and the response to it, no sanctions were imposed and no further investigations were required.
InterDigital Technology Corporation v Lenovo Group Ltd  EWCA Civ 57
What are the practical implications of this case?
This is a judgment which offers a note of caution about two matters. First, the importance of strict and complete observance with the embargo imposed on draft judgments when circulated to the parties. This extends not only to the judgment itself but also the outcome reflected in it. It applies both to legal representatives and to the litigants as well as persons working for litigants. It confirms that liability for contempt of court for breaching such an embargo is considered by some commentators to be strict. Second, the dangers posed by reading complex emails using mobile devices whilst not at work. It is relatively easy in such circumstances to overlook points of detail contained within the body of such emails. Finally, however, it emphasises that Courts will look favourably on persons who candidly and promptly recognise their mistakes and draw them to the attention of the Court at the earliest opportunity.
What was the background?
This judgment concerns litigation between InterDigital and Lenovo, pursuant to which Lenovo challenged the validity and essentiality of a patent belonging to InterDigital. The patent was held to be valid at trial and Lenovo appealed. The appeal was heard on 14 and 15 December 2022. On Friday 13 January 2023, judgments were circulated in draft following the practice set out in PD40E. The drafts included the usual heading warning the parties that the draft was "confidential to the parties and their legal representatives", that "neither the draft itself nor its substance may be disclosed to any other person or made public in any way" and that "a breach of any of these obligations may be treated as a contempt of court". The draft was initially sent to the parties' counsel, counsel's clerks and one representative of each of the solicitors' firms. Counsel's clerks then forwarded the drafts on to two other solicitors at the firm representing InterDigital, Gowling WLG. Gowling circulated the draft on to individuals at InterDigital in a manner which was not criticised and, in so doing, reminded the individuals in the strongest terms about the need to keep the drafts confidential. Mr Steve Akerley, the Deputy General Counsel and Head of Intellectual Property at InterDigital saw the email from Gowling on his mobile phone. Without forwarding the drafts, Mr Akerley informed Mr Mike Levin, a solicitor at Wilson Sonsini Goodrich & Rosati of the outcome of the appeal. He told Mr Levin that the information was confidential but he could tell the core team at Wilson Sonsini Goodrich & Rosati. That team had been working cooperatively on the litigation but was not the legal representative in the litigation itself. That was Gowling. On Sunday 15 January 2023, Mr Levin congratulated a solicitor at Gowling on the outcome of the appeal. Gowling immediately recognised that this was evidence that there had been a breach of the embargo and took steps to notify the Court of Appeal.
What did the court decide?
The Court of Appeal noted that Mr Akerley candidly recognised that what he had done was in breach of the embargo. They took on board Mr Akerley's explanation that he had received the draft judgment on his mobile phone and in his eagerness to learn the outcome had failed to head the clear warnings given to him in the covering email drafted by Gowling. There was no intention on the part of Mr Akerley to flout the embargo. Nevertheless, liability for contempt of court is argued to be strict in certain commentaries. The Court of Appeal concluded, therefore, that Mr Akerley's actions may have been a contempt. However, in light of the circumstances as a whole, including the limited nature of the illegitimate disclosures to professionals associated with the case, the fact the draft judgment itself was not sent, the lack of public disclosure and the fact the illegitimate disclosures themselves were effected with their own warning to preserve confidence, it was not appropriate for any further steps to be taken in relation to this matter. Mr Akerley accepted his errors and apologised. Any further investigations would be disproportionate to any need to uphold the Court's authority.
- Court: Court of Appeal (Civil Division)
- Judge: Lord Justice Birss, Lord Justice Warby and Lady Justice Falk
- Date of judgment: 30 January 2023
Originally published by LexisNexis.
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