25 July 2022
Disputes Quick Read – 29 of 87 Insights
Disputes Quick Read: Disclosure - What information can be redacted?
Redacting information in documents subject to disclosure has always been a slightly contentious issue. Parties – in the midst of a dispute – have to trust that redactions have been applied appropriately based on the counterparty's solicitor's assurance.
Historically, the rules around redacting parts of documents - by way of withholding inspection - did not get much focus. It had a passing reference in CPR 31 and its accompanying practice direction (31APD.6) but there was little specific guidance to its application.
The Disclosure Pilot Scheme (DPS) – which has recently been approved and will come into force as Practice Direction 57AD on 1 October 2022 – includes an express rule (PD51U.16):
"16. Redaction
16.1 A party may redact a part or parts of a document on the ground that the redacted data comprises data that is—
(1) irrelevant to any issue in the proceedings, and confidential; or
(2) privileged.
16.2 Any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement."
The DPS does not change the test in relation to what can be redacted but clarifies and codifies the position.
In summary: a party can redact a document or part thereof if it is irrelevant and confidential or it is privileged.
Privileged information can always be redacted, but for irrelevant information it is a two stage test. The first requirement is that the information proposed to be redacted must be “irrelevant” to the issues in the proceedings. Only if it is irrelevant does the second consideration of whether the information is confidential arise. If both apply, the information can be redacted and the information withheld from the other parties. Parties should be prepared to explain the basis on which redactions have been applied and therefore the decision making process should be recorded.
Crucially the test to determine whether information can be redacted turns on its relevance to issues in the proceedings, and not the list of issues for disclosure – which are likely to be narrower.
This point was recently reiterated by Mr Justice Trower's judgment in JSC Commercial Bank Privatbank v Kolomoisky and others [2022] EWHC 868 (Ch).
The judgment followed the Claimant's application for further orders in relation to the First Defendant's disclosure of 26 chains of heavily redacted WhatsApp messages. The Claimant submitted that the redactions were unjustified and sought an order that 17 of the chains be disclosed to its solicitors unredacted.
Due to the heavy redactions, and in light of there being limited other sources of documents from the First Defendant, the court followed WH Holding Ltd v E20 Stadium LLP [2018] EWHC 2578 (Ch) and despite the statement from solicitors felt justified in adopting greater vigilance to ensure that the right to redact was not being abused or too liberally interpreted.
When the WhatsApp messages were first disclosed a large proportion had been redacted or partially redacted on the basis that they were irrelevant to any issue in the proceedings, and confidential in line with PD51U.16.1(1). Crucially, the solicitors did not provide an explanation for each redaction but relied on a blanket explanation that the messages were "information about unrelated commercial transactions and other commercial information unrelated to the issues in these proceedings."
Following correspondence between the parties, the First Defendant's solicitors agreed to un-redact a small tranche of the WhatsApp messages stating that they accepted that it was "at least arguable that they may be relevant to the issues for disclosure". Adding, however, that they considered them unlikely to be of any particular significance to the issues in dispute in the proceedings.
Given these statements the judge found that the First Defendant's solicitors had adopted an approach to relevance which was too narrow. The solicitors should have assessed the application of redactions against all the issues in the proceedings and not just the Issues for Disclosure as appeared to be the case here.
The Judge was not convinced to order that the First Defendant disclose all the WhatsApp messages in unredacted form as sought by the Claimant. Instead, he ordered a re-review of the redactions of all the WhatsApp messages disclosed by the First Defendant "having regard both to the need to assess them against all of the issues in the proceedings and not just the Issues for Disclosure".
The Judge ordered that the solicitors should also provide an accompanying schedule for each redaction detailing: the names of the recipient, the date and time of the message and a generic description of the subject matter of the exchange. Despite that potentially being a time-consuming task, it was reasonable and proportionate given the First Defendant's limited disclosure from his own sources and given the nature and complexity of the case.
The judgment and subsequent order emphasises the importance of taking a balanced approach to redactions in the first instance by considering relevance in relation to all issues in the proceedings. Further, it is a reminder to adequately record the decision making process for each redaction, rather than rely on a blanket statement for groups of redactions.
In this series
New SFO Director announces bold plans to tackle fraud
21 March 2024
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First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
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CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
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Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
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The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
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Disputes Quick Read – developments in the fixed costs regime
3 May 2023
by James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
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Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
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Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
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Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
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Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
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Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
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Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
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Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
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Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
by Multiple authors
Related Insights
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Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
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