REDACTING DOCUMENTS: MAY CAUSE ENQUIRIES TO BE MADE AND EXPLANATIONS MAY NEED TO BE GIVEN

One other aspect of the judgment of HHJ Lethem in Ivanoy -v- Lubble (Central London County Court 17th January 2020) is in the orders made after the judgment. It concerns the redaction of documents.

 

THE CASE

The primary issue in the case was whether the defendant should pay court fees when the claimant could have applied dispensation. However there were also issues as to whether the claimant had adopted the correct procedure.   The claimant had filed a witness statement and exhibited a letter. However certain parts of that letter were redacted.

 

THE JUDGMENT ON THIS ISSUE

The judge observed that part of a letter had been redacted, he felt that this required an explanation from the conducting solicitor.

“5. Mr Dunne observed that the Appellant had written to the Respondent a letter dated the 7th September 2018, which was annexed to the application, in which they curiously redacted the last two paragraphs, one of which apparently reads:
“Please note that if this offer is not accepted within 21 days then on day 22 a fixed costs bill will be drawn and served formally and the matter will proceed to assessment”
            Thus Mr. Dunne was able to suggest that the Claimant knew the correct procedure but chose not to follow it.  He went on to argue that the Claimant was trying to obtain an assessment through the back door and potentially circumnavigate the provisions of r.44.3.  A matter I return to.
6. At risk of digression I am bound to observe that I share Mr. Dunne’s unease at the conduct of the Appellant’s solicitors. It would be possible to interpret the redaction of the letter of the 7th September 2018 as a conscious attempt to hide from the court the fact that the Appellant had originally agreed with the Respondent that a detailed assessment was the appropriate forum to resolve the fees dispute.  For the next hearing I will order a witness statement from the partner with overall conduct of the case at the Appellant’s solicitors addressing why they felt justified in redacting the document, what thought they gave to the fact that it erased the concession to which I have just referred and that the court might be misled.  Having heard that explanation I will decide what, if any further action should be taken, which may include penalising the Appellant in costs.”

THE PREAMBLE

The judge’s concerns were reflected in the order made.

The preamble to the Order reads.

“The court noting that the Claimant has redacted a letter of the 7th September 2018 annexed to the application and it being asserted that the redaction masks a concession by the Claimant that the Defendant was right to assert that the matter should proceed by detailed assessment of costs. Thus the court being concerned to understand whether there was a potential for the court to be misled by the redaction, why the redaction was made and whether thought was given to the fact that the court could potentially be mislead.”

THE ORDER

The order reads.

“3. Not less than twenty one days prior to the hearing referred to in paragraph 4 of this order the partner with conduct of this matter on behalf of the Claimant shall file and serve a witness statement addressing the following issues:”
a. Exhibiting an unredacted copy of the letter of the 7th September 2018 unless it is argued that the Claimant has a right to redact the letter.
b. The reasons for redacting the letter.
c. What thought was given as to the possibility that the court would be misled by redaction.
d. Any other relevant matters.”