In re a barrister
Dame Victoria SharpPresident of the King’s Bench DivisionJudgment
2 February 2023
President of the King’s Bench Division
The issue before me has been referred to the court by a barrister who accepts s/he has acted in breach of an order made by the court (the confidentiality order) in certain proceedings (the proceedings).
That confidentiality order was designed to prevent information about the claimants in the proceedings from being made public because if this happened, it could put the claimants at risk of harm.
An order had been made at the outset of the proceedings that the claimants should not be identified directly or indirectly, and that the court file should be closed to non-parties pursuant to CPR 5.4C(4)(a). The judgment handed down at the end of the proceedings included confidential annexes, and by the confidentiality order, the judge ordered that those annexes were to remain confidential to the parties and their legal advisors. The two orders made by the court to which I have referred, remain in force.
After the judgment was handed down, it was emailed to all counsel in the usual way by the judge’s clerk. The judgment included the confidential annexes. The barrister forwarded the email and the attachment to the chambers’ marketing team without looking at the attachment: that team then prepared a judgment summary and both the summary and the judgment, including the confidential annexes, were put on the chambers’ website where they remained for some time.
The issue came to light when a third party saw what was on the website; and once alerted, chambers acted promptly to remove from their website the material which should not have been there. It subsequently came to light that the barrister had also forwarded the judgment and the confidential annexes to a person on a work placement in chambers. Confirmation has since been received by the barrister from that person that these documents were not forwarded on to anyone else and these documents and the email from the barrister, have been deleted.
It follows from the foregoing that in this case there were three breaches of the confidentiality order: when the confidential annexes were forwarded to the chambers’ marketing team; when the confidential annexes were placed on the chambers’ website and when the confidential annexes were forwarded to the person on work placement in chambers.
Breaches of a court order may be treated as a contempt of court. Compliance with court orders is also a cornerstone of professional duty, and integral to the working relationship between the Bar and the court which facilitates the administration of justice.
The barrister has written to the court, explaining what happened, acknowledging that s/he had acted in breach of the confidentiality order and has expressed sincere apologies for what has occurred. The barrister’s senior clerk has also told the court that measures have now been put in place to ensure that the judgment is no longer available on the chambers’ website and that all other versions of the relevant web page will be rendered inaccessible. This has been confirmed by an IT expert chambers has instructed to deal with this matter. What cannot be known however, is whether any further copies of the judgment were made whilst the judgment and the annexes were accessible on the chambers’ website, and whether any such copies have been retained.
I have been told that the arrangements in place when the breaches occurred have been changed. Chambers no longer posts copies of judgments on its website but instead publishes links to other websites where the judgment is publicly available; and any summaries of judgments are only published after express approval from the barrister concerned (if the barrister does not respond, this is not regarded as approval).
These breaches were undoubtedly the result of carelessness on the part of barrister and a systemic flaw in the chambers’ arrangements. Those arrangements delegated decisions about what was put on the chambers’ website (judgments and summaries of them) to chambers’ staff, and were not subject to effective control by the barristers concerned.
I accept that these breaches were not intentional and that the barrister assumed that the judgment sent by the judge’s clerk did not include the confidential annexes. But having regard to the terms of the confidentiality order, when the barrister received the email and the attachment from the judge’s clerk, the barrister should not have forwarded it on, without checking what they had received. The responsibility for what then occurred, that is, the breaches which I have identified, resides with the barrister.
The barrister has stated their intention to report all these matters to the Bar Standards Board. While what has happened here is serious, I am satisfied that this is the appropriate course to be followed; and no further steps need be taken by the court.
It has been necessary to hold this hearing in private in accordance with CPR 39.2(3). It is also necessary, in accordance with CPR 39.2(4), for the identity of those concerned in the matter being addressed today (including the parties’ representatives) not to be disclosed.
This is because the hearing involves confidential information and publicity would damage the confidentiality; because the court considers it to be necessary to secure the proper administration of justice and because non-disclosure of the identities of those concerned is necessary to protect both the confidential information and the interests and the identities of the claimants. This case has exposed an issue which it is necessary to deal with in a judgment given in open court, but this can only be done under circumstances that do not undermine the orders the court has already made.