COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL

In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not be an issue sprung on the court for the first time at trial.

” … it is in general unsatisfactory for questions as to the extent of redactions to be first raised at trial.  The general position under the CPR is that cases should be managed in such a way that by the time the parties get to trial they should know what the evidence is on which they will each be relying, and procedural matters should have all been resolved. “

THE CASE

The claimant brought actions as the assignee of various debts. In each case parts of the assignment the claimant relied on to prove the title to sue were redacted, those parts regarded as being “commercially sensitive”.   The defendants appealed on the grounds that the court should not have allowed the claimant to rely on redacted documents to prove title.

GUIDANCE ON REDACTION GENERALLY

The Court of Appeal considered the guidance given  Henderson LJ in Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 (“Hancock”).
43.            As can be seen all parties took Hancock as their starting point.  We do not therefore have to consider which parts of the judgment are strictly part of the ratio of the decision by which we are bound, and which are to be regarded as obiter, as we received no argument inviting us to depart from anything Henderson LJ there said.
44.            For our part we consider that Hancock provides sufficiently clear guidance for future cases.  Without attempting to re-write that guidance, it can in our view be summarised as follows:
(1)             Where the Court is called upon to resolve a question of construction of a contractual document, the document must in all normal circumstances be placed before the Court as a whole: [74].  The starting point must always be that the entire document should be made available to the Court: [89].
(2)             But it may be obvious that some parts, such as the details of third party transactions, can be omitted or blanked out.  In such a case a clear explanation must be given of the nature and extent of the omissions and the reasons for making them: [74].  In general, irrelevance alone is not enough to justify redaction; there must be some additional feature such as privacy or confidentiality: [74].
(3)             Mere confidentiality can seldom, if ever, justify redaction, but provisions can be redacted if it is obvious that on any reasonable view the provisions in question would be completely irrelevant to the question of construction, and the reasons for taking that view are clearly and fully articulated by the solicitor for the party seeking that redaction: [75].
(4)             But redactions on the ground of relevance should either be forbidden or if permitted at all convincingly justified and kept to an absolute minimum: [89].  Except in the clearest of cases, the question of relevance to the process of construction is one that the Court should be left to decide for itself: [89].
(5)             In a sentence, in all normal cases, the entire document should be placed before the Court and if, exceptionally, any redactions are made, they should be fully explained and justified by the party making the redaction, with sufficient particularity for the Court to be able to rule on the need for redaction if it is challenged: [89].
45.            We add a few comments on points that emerged in the course of oral argument.  First, the Hancock guidelines are directed at a case where the Court is required to construe a document.  But quite what is required in any particular case must be heavily dependent on the context: as Henderson LJ observed in argument, context is all-important.  If for example there is a classic difficulty of construction that needs to be resolved – a provision that on its face is open to more than one competing interpretation – then we suspect that it would be difficult to justify withholding other parts of the same instrument as experience shows that arguments on construction are often wide ranging, and not infrequently draw on comparisons with other parts of the same instrument, even if dealing with a different aspect of the parties’ agreement.  That is the context of Lord Hodge’s statement in Wood v Capita at [10] that in ascertaining the objective meaning of the parties’ language, the Court must consider the contract as a whole.
46.            But the present cases are not like that.  The Court is not being asked to resolve the meaning of an ambiguous provision, or choose between competing interpretations.  Instead the question is a very limited one: does the document before the Court effect an assignment of the relevant debt or not?  That undoubtedly requires the Court to consider the meaning and effect of the provisions relied on, but that does not usually present great difficulty, and it is far more likely that a clear and convincing justification can be made out that other parts of the same document are entirely irrelevant to that question.  We accept, for example, Ms Pennifer’s submission that in a typical invoice factoring agreement, provisions dealing with the obligations of the original creditor and the factor to account to each other are unlikely to have any relevance to the question whether the document effects an assignment of the relevant debts.  We therefore accept the submissions of Mr Riley and Ms Pennifer that there is no absolute rule that the whole document should always be disclosed in unredacted form if asked for, as indeed Hancock itself makes clear.  The ultimate question is always whether it is possible for the Court to reach a safe conclusion on the effect of the document: if it cannot, it would be unfair to the other party for the Court to proceed on the basis that the document had a particular effect, but if it can, there is no reason why it should not do so, and it would be unfair on the party relying on the document to refuse to do so. 
47.            Second, it is in general unsatisfactory for questions as to the extent of redactions to be first raised at trial.  The general position under the CPR is that cases should be managed in such a way that by the time the parties get to trial they should know what the evidence is on which they will each be relying, and procedural matters should have all been resolved.  This is of course a counsel of perfection which cannot always be attained in practice, but in cases like the present where it is clear from an early stage that the claimant claims as assignee, the claimant’s title is put in issue, and the claimant intends to rely on a redacted document to prove the assignment, the defendant should in our view raise the issue well before trial if he seeks to object to that being done, either at a case management conference or by way of interlocutory application.  It will usually be obvious from disclosure that the claimant does not intend to provide an unredacted copy of the document; and that is the opportunity for the defendant to object to the claimant seeking to rely on a redacted document to prove its title.
48.            We hope that this is sufficient to provide practical guidance to parties and judges for the future.  It does not however directly answer the questions raised in these appeals where (save for the Simpson case) the hearings below took place before the Hancock guidance was available.  We will look at the individual appeals in due course, but in summary we think the resolution of these appeals must turn on the question identified in Hancock at [91]: can the Court in the circumstances safely resolve the question of construction (or in the present cases the question whether the instrument is effective as an assignment) on the material before it?  If it concludes that it cannot, then the claimant will not have proved its title, and its claim will fail.  But if it can, we see no reason why it should not do so.
REDACTION ISSUES WERE RAISED OPPORTUNISTICALLY
All of the appeals by the defendants were dismissed.  In one the court held that the redaction issue was raised opportunistically.
160.         In summary, once the factual issue of whether there had been another assignment had been resolved, the Thompson companies had no real basis for disputing that Bibby had acquired title to the relevant debts, and did not identify any issue of construction that required examination of the unredacted assignment agreement.  Thereafter the issue of redaction was raised opportunistically and tactically, with a view to obstructing and delaying the claim, as best illustrated by Mr Tinnion’s admitted intention to ambush Ms Pennifer with a new argument on redaction at the ineffective first hearing before DJ Phillips.  The District Judge and HHJ Kramer were right to reject the defence so advanced for the reasons they gave.