REDACTION OF RELEVANT DOCUMENTS TO BE DISCOURAGED: THINGS COULD TURN OUT BADLY FOR THE REDACTOR
In Nicoll v Promontoria (Ram 2) Ltd  EWHC 2410 (Ch) Mr Justice Mann was critical of a decision to redact elements of documents disclosed in an application to set aside a statutory demand.
“unnecessary and inappropriate redactions are capable of prolonging disputes quite unnecessarily, and the court has its own interests in making sure that that does not happen.”
The judge was hearing an appeal against a refusal to set aside a statutory demand in relation to assigned debts. Many of the relevant documents in the case had been redacted by the assignee. The appeal was not successful, however the judge made some observations about the practice of redacting documents.
THE JUDGMENT ON REDACTION
I would, however, wish to return to one of the recurring themes of this judgment, which is Promontoria’s redaction policy. Promontoria have redacted on the basis that material is irrelevant or commercially sensitive (my emphasis), according to Ms Widdowson’s evidence. Commercial sensitivity by itself is not a reason for a redaction if the material is relevant. Irrelevant material might be the subject of proper redaction whether commercially sensitive or not. However, over-enthusiastic and ill-thought out redaction of the kind which seems to me to have occurred in this case is not to be encouraged or supported. I have pointed out above some clauses which, although irrelevant to the debate, are clauses which in my view no reasonable litigant who did not want to encourage suspicion would want to redact. Redacting words in the middle of a relevant clause is highly questionable, at least in the absence of an explanation as to the nature of and reasons for the redaction so that their relevance or irrelevance can be judged by the other side. It seems to me that Promontoria’s judgment on redaction is questionable. When it produced the redacted form of the deed of assignment it understandably redacted details of a lot of non-Nicoll loans which were the subject of the deed from the Schedule. Mr Nicoll’s loans were identified in the Schedule, but there was still a redaction of an apparently single word in each description of the facility. When I questioned what that redaction was it turned out that what was redacted was a statement of the facility limits, and the explanation that was given was that they were irrelevant to the dispute and appeared in other documents. No confidentiality was claimed as against Mr Nicoll. In my view that redaction was completely misplaced. It is true that it was technically irrelevant, but then so was a lot of the other information appearing on those schedules. This sort of misplaced detailed redaction is not to be encouraged. The redactions in this case might have stood in the way of Promontoria’s succeeding. If Promontoria wishes to risk success by implementing an overly enthusiastic and inappropriate redaction policy, then to that extent that is a matter for Promontoria. It would be the loser if it turns out badly for it. However, it is also the case that unnecessary and inappropriate redactions are capable of prolonging disputes quite unnecessarily, and the court has its own interests in making sure that that does not happen. It is apparent from the list of authorities submitted to me that Promontoria is engaged in quite a lot of litigation about the portfolios of debts assigned by the Co-operative Bank and (apparently) other banks (indeed, the existence of a lot of litigation was a reason advanced by Ms Widdowson for the redactions – Promontoria dislikes the promulgation of information about the documentation and it is said that this happens to a significant extent), and it is to be hoped that its redaction policies do not give rise to further unnecessary and time-wasting debates in other cases.