The Judge was not convinced to order that the First Defendant disclose all the WhatsApp messages in unredacted form as sought by the Claimant. 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. Given these statements the judge found that the First Defendant's solicitors had adopted an approach to relevance which was too narrow. Adding, however, that they considered them unlikely to be of any particular significance to the issues in dispute in the proceedings. 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."įollowing 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". 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). The Claimant submitted that the redactions were unjustified and sought an order that 17 of the chains be disclosed to its solicitors unredacted.ĭue 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 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. 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. This point was recently reiterated by Mr Justice Trower's judgment in JSC Commercial Bank Privatbank v Kolomoisky and others EWHC 868 (Ch). Parties should be prepared to explain the basis on which redactions have been applied and therefore the decision making process should be recorded.Ĭrucially 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. If both apply, the information can be redacted and the information withheld from the other parties. Only if it is irrelevant does the second consideration of whether the information is confidential arise. The first requirement is that the information proposed to be redacted must be “irrelevant” to the issues in the proceedings. Privileged information can always be redacted, but for irrelevant information it is a two stage test. In summary: a party can redact a document or part thereof if it is irrelevant and confidential or it is privileged. The DPS does not change the test in relation to what can be redacted but clarifies and codifies the position. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement." (1) irrelevant to any issue in the proceedings, and confidential orġ6.2 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. 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):ġ6.1 A party may redact a part or parts of a document on the ground that the redacted data comprises data that is. It had a passing reference in CPR 31 and its accompanying practice direction (31APD.6) but there was little specific guidance to its application. Historically, the rules around redacting parts of documents - by way of withholding inspection - did not get much focus. Parties – in the midst of a dispute – have to trust that redactions have been applied appropriately based on the counterparty's solicitor's assurance. Redacting information in documents subject to disclosure has always been a slightly contentious issue. Disclosure - What information can be redacted?.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |