Redaction of Documents in Civil Proceedings

Posted by Joanne Thompson on
The recent decision of the High Court in Ennis Property Finance Ltd v Thompson and Thompson [2017] EWHC 3263 (Ch) gives guidance on the redaction of documents in litigation.

The Claimant was suing on loan agreements and guarantees which were made between the Defendants and the Bank of Scotland. The Claimant claimed it had title to sue the Defendants following the purchase of the debt from the Bank of Scotland. There were a series of documents to record that purchase including a Purchase Deed which it sought to rely on which and which referred to six other documents.

During the disclosure process, the Claimant disclosed the documents but in a redacted form to conceal matters which the Claimant considered to be irrelevant and commercially sensitive. The Defendants applied to the Court for copies of the documents to be provided in an unredacted form as their position was that the redacted elements of the documents could contain information calling into question the validity of the assignment of the debt to the Claimant.

The Defendants argued that the redactions could not be made on grounds advanced by the Claimant and could only be made on grounds of privilege or public interest immunity since the introduction of the Civil Procedure Rules in 1998.

The Judge dismissed the Defendants' application. She considered relevant case law and concluded that there was a continuing acceptance, since the introduction of the CPR, of redacting documents which do not fall within the test for standard disclosure set out in CPR 31.6.[1]

The Judge also concluded that there was a need for the Claimant to also redact commercially sensitive information on the basis that it would be disproportionate and commercially dangerous to provide sensitive material without redaction. Whilst the Judge accepted that there were safeguards set out in CPR 31.22 (which controls how disclosed documents are to be subsequently used), she held that these were not absolute and may cause irreparable harm to the Claimant if they were disregarded. On the facts, she also considered that the redactions were disclosable.

Comment

The approach adopted by the Court in this case is fairly uncontroversial and reinforces that the practice of redacting documents can continue based on whether they are disclosable within the proceedings and to protect confidential information.



[1] CRP 31.6 requires a party to disclose only–

 

(a) the documents on which he relies; and

 

(b) the documents which –

 

(i) adversely affect his own case;

 

(ii) adversely affect another party’s case; or

 

(iii) support another party’s case; and

 

(c) the documents which he is required to disclose by a relevant practice direction.

About the Author

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Joanne is a Senior Associate in the Cardiff Litigation and Dispute Resolution Team with extensive experience of advising private, public and education sector clients on a wide range of commercial and corporate disputes, including procurement challenges, judicial reviews, breaches of contract, negligence, nuisance, defamation and breaches of confidence and non-compete/restrictive covenant clauses.

Joanne Thompson
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