Disclosure under PD 51U: a rethink on redactions and relevance
The recent judgment in PJSC CB PrivatBank v Kolomoisky & others  EWHC 868 (Ch) - relating to Practice Direction 51U - has shed further light on the balancing exercise that parties to litigation must conduct between protecting sensitive information and complying with their disclosure obligations.
Trower J ruled that the first Defendant (D1) had taken an overly narrow approach to the relevance of a series of WhatsApp chats by only disclosing them in heavily redacted form. The justification and information – per individual WhatsApp message – that D1 was ordered to provide for any redactions it wished to maintain may well give parties pause for thought going forward about being too liberal with the black marker pen.
PD51U provides a pilot scheme for disclosure in the Business & Property Courts from 1 January 2019 for a period of four years. Pursuant to paragraph 16.1, a party may redact a part or parts of a document on the ground that the redacted data comprises data that is irrelevant to any issue in the proceedings, and confidential, or privileged. In accordance with paragraph 16.2, any redaction must be accompanied by an explanation of the basis on which the redaction has been undertaken, and confirmation (where a legal representative is involved) that the redaction has been reviewed by a legal representative with control of the disclosure process. Any party wishing to challenge the redaction must make an application to the court.
Such an application was the subject of the judgment in PrivatBank. The Claimant sought the unredacted disclosure of 17 out of 26 D1’s WhatsApp chats. When first disclosing the chats, D1’s solicitors fully or partly redacted all but 272 of around 6,209 messages. A further 150 unredacted messages were later provided. D1 sought to rely on paragraph 16.1(1), explaining that the redacted material was “information about unrelated commercial transactions and other commercial information unrelated to the issues in these proceedings”, and that the additional unredacted messages it provided were only arguably relevant to the issues for disclosure and unlikely to be of any particular significance to the issues in dispute. There was no specific explanation as to why specific chains had been redacted.
The Claimant proposed that if the judge was not satisfied he could inspect the unredacted documents himself before ruling on the redactions, or make a Hollander Order (whereby the unredacted chats would only be disclosed to named members of the Claimant’s legal team).
In this case, the Judge held that D1 had not adopted a broad enough approach to relevance and had misunderstand the distinction between the Issues for Disclosure (i.e. the need to disclose a document) and “any issue in the proceedings” referred to in paragraph 16.1(1). In particular, messages regarding commercial transactions with which the proceedings were not directly concerned were not necessarily irrelevant to an issue in the proceedings for the purposes of paragraph 16.1(1).
However, the Judge did not consider that blanket unredacted disclosure, a Hollander order or inspection by the Court were appropriate remedies. Instead, the relief ordered was that D1 review all redactions and identify (in a schedule verified by a witness statement) for each individual message 1) the recipient’s name, 2) the message’s date and time and 3) a generic description of the message’s subject matter. This was deemed reasonable and proportionate in this case in line with the factors in para 6.4 PD 51U.
While it remains that a court will generally be satisfied by a statement from a solicitor with conduct of the case that redactions have been properly made, where there have been heavy redactions of many documents, the court will adopt greater vigilance to ensure that relevance is not being approached too narrowly and the right to redact is not being too liberally applied.
It appears that vigilance is unlikely to result in an order for blanket disclosure, with the judiciary alive to the need to protect sensitive information in disclosed documents.
However, what may be a reasonable and proportionate remedy in one case, may be different in another. Failure to find the right balance the first time, and you run the risk of the Court ordering a time-consuming justification exercise further down the line.