"You accused my clerk - time to get slammed"
A judge has lambasted a solicitor for appearing to blame a court clerk for leaking a judgment, when there had been no leak.
The mix-up stemmed from a patent claim by Optis Ceullar against Apple Retail in the High Court. Mr Justice Meade had circulated a draft judgment on 20 September, with the judgment scheduled to be handed down on 27 September.
The misunderstanding started when Mattia Fogliacco, the chief executive of Sisvel (a third party with an interest in the case) heard the decision was due to be handed down the following week. Fogliacco emailed Michael Friedman, the managing director of Optis, saying: "I hear Monday will be a big day for you guys. Keeping my fingers crossed!"
Upon receiving the email, Friedman called Fogliacco, mistakenly believing that Fogliacco was praising Optis for winning the case. Friedman then texted Gary Moss, a partner at EIP (the firm instructed by Optis) to say: "Sisvel just called to congratulate us on your win. Apparently Meade's office leaks like a sieve."
On 22 September Moss wrote to Meade J to inform the judge that his client had been contacted by a third party congratulating him about the result. "Accordingly it would appear that there has been a breach of the confidentiality directions contained in the draft judgment which you circulated earlier this week," wrote Moss. The partner also attached some of the text messages including the one referring to Meade's office leaking like a sieve.
Given the accusations of a leaky office,it was perhaps not surprising that Meade J didn't see the funny side when the court discovered it was all just a misunderstanding. In his judgment about the cock-up, Meade J said that he had directed an investigation to take place about the supposed leak, which was "a massive waste of time and money" and caused "completely unnecessary heartache and worry."
Meade J said that he felt "particular discomfort" over Moss' email being sent direct to his email address and not copied to his clerk. Moss had pointed out at the start of that email that he had decided not to go through the usual channels "for reasons which will become apparent". The judge assumed, in the context, that Moss had done that because "the attached texts accused my 'office', which in context could really only have meant my clerk, of perpetrating the leak and I was being invited to consider what to do about that without alerting my clerk."
Moss denied this was the reason, but the judge said "that is certainly not how I perceived it...at best, this was a disastrous lack of thought, which has caused, as will be understood, a great deal of concern and indeed distress, on my part, and more importantly on the part of my clerk."
The judge also slammed Optis' managing director, saying: "I simply cannot understand how Mr. Friedman could possibly have, with any care, captured what was said between him and Mr. Fogliacco as amounting to an assertion that my office leaks like a sieve."
Meade J also said it was "entirely unacceptable" that Friedman had phoned Fogliacco, after receiving his email. "If he thought Mr. Fogliacco knew the result, then Mr. Friedman's proper course was to contact Optis' lawyers," said the judge, "and if he thought that Mr. Fogliacco did not know the result, then he had no business contacting him at all in a conversation that was bound to touch on the outcome of the case."
"Significant errors of judgment" were made by EIP, concluded the judge, although he noted that the firm had not done anything "consciously wrong."
Meade J ordered Optis to pay Sisvel and Apple's costs of the hearing.