The approach that a party involved in litigation should take to the redaction of documents has long been shrouded in uncertainty. However, some guidance on this front has been given in the recent case of Ian George Nicoll v Promontoria (Ram 2) Limited [2019] EWHC 2410. In an increasingly complex area of law, a reminder of the basic principles regarding the correct (or, more accurately in this case, incorrect) approach to take to redactions is useful. In a post GDPR world, the issue of when content should be redacted is something that we are likely to see courts grapple with more and more. Angela Milner (Senior Associate, Knowledge Development Lawyer for Commercial Disputes) examines the decision.

Factual background

Mr Nicoll, the appellant in the case, had previously taken a loan in excess of £10m from the Co-operative Bank. That loan was then assigned to Promontoria (Ram 2) Limited (Promontoria), the respondent. When Mr Nicoll did not repay the loan, Promontoria commenced proceedings against Mr Nicoll in the Insolvency and Companies Court (the IC Court). The case was subsequently transferred to the High Court where it came before Mr Justice Mann.

One of the issues before Mr Justice Mann was whether an interim decision by the IC Court judge to allow Mr Nicoll to pursue points concerning the validity of a deed of assignment was permissible.

He ultimately found in favour of Promontoria. However, in delivering his judgment, Mr Justice Mann made numerous scathing comments about Promontoria’s approach to redactions. In his view, the “excessive caginess” displayed by Promontoria could well have jeopardised its chances of success.

The approach taken by Promontoria to redactions

It was commented that Promontoria had adopted a “neurotic” approach to redactions, going as far as redacting clauses in the deed of assignment and related documentation regarding jurisdiction and the rights of third parties, purporting to do so on the basis of relevance. It also chose to redact one or two words within a clause which, as a general rule, is “completely inappropriate” (particularly as the clause in question contained important definitions which went to the issue of whether there had been a valid assignment).

Mr Justice Mann went on to criticise Promontoria’s decision to redact details of the limits associated with various financial facilities and noted that commercial sensitivity “by itself is not a reason for redaction if the material is relevant”.

The judgment makes it clear that an overly zealous approach to redactions leaves “judges feeling uncomfortable” and gives rise to unnecessary and “time-wasting” debates. If bad enough, it can go further and “encourage suspicion”.

The worst implication of such an approach is that it could result in an adverse outcome for the party concerned. This is clear from the following observation by Justice Mann: “If there were any relevant factual certainties which remain as a result of Promontoria’s excessive caginess about redactions then it would certainly not be appropriate to lean in Promontoria’s favour in relation to them.”

Comment

Partner, Lucy Ward comments:

“This case serves as a cautionary reminder to clients and practitioners of the dangers associated with taking an overly enthusiastic approach to redaction. It provides a welcome reminder of the basic principles that are often overlooked in practice.”