Disputes Quick Read: Disclosure - What information can be redacted?

Briefing

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.

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