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10 January 2017 / by / in

Redaction

There is not much sense or guidance in English judgments on the subject of redaction. The term is not even mentioned in the index of The White Book. Accordingly, it is refreshing to get some guidance, albeit under Scots Law. Lord Tyre in Alliance v Fraser Currie [2016] CSGO 154 added a useful postscript on the subject as follows:-

“It is not uncommon in commercial actions for documents to be lodged that contain sensitive commercial information. Such documents may be founded upon or incorporated into the pleadings of a party and must therefore be lodged with the pleadings in accordance with the rules of court. Others may be produced voluntarily by a party in order to avoid the need for commission and diligence; this is clearly to be encouraged. No privilege attaches in either case to documents merely because they contain information that is commercially confidential. The court will not, however, require disclosure of sensitive commercial information that is not material to the issue to be determined. It may therefore be acceptable for a document to be lodged under redaction of sensitive or confidential information. Any such redaction should be limited to details meeting the above description, i.e. to confidential matters not material to the issue before the court.

In the present case, difficulties were caused by virtue of a decision by the pursuer to lodge a heavily redacted version of the sale agreement with CB. I accept that this document included confidential details with no relevance to the case, such as the purchase price paid by CB for the pursuer’s pensions business, the details of the selling solicitors’ bank account, and the list of names of customers whose pensions were transferred, and that there could be no reasonable objection to redaction of such information. However, very large sections were blacked out and I am far from satisfied that all of the redacted material was of a confidential or commercially sensitive character. To make matters worse, it transpired when an unredacted version of Clause 1 of the agreement (containing definitions) was produced in the course of the hearing that details which were relevant to the case including, for example, the definition of goodwill, had been redacted in the previously-lodged version. Other definitions with no sensitive character whatever (such as the meaning of “VAT”) had also been blacked out.

Practitioners should bear in mind that redaction of documents for reasons other than the exclusion of legally privileged material is under the control of the court. Redaction should be undertaken with care and practitioners are responsible for ensuring that it goes no further than is necessary to protect a party from disclosure of irrelevant confidential matters. If progress of a case were to be delayed by unnecessary redaction, there could be consequences for the redacting party as regards any expenses occasioned by the delay.”

John Bechelet

John specialises in commercial and civil fraud litigation. Admitted as a solicitor in 1983, John worked in private practice and in-house for a leading life assurance company before establishing Bivonas with Antony Brown in 1997. John has extensive experience in a wide range of courts and tribunals including the UK Supreme Court, the Court of Appeal and the Divisional Court. He has been involved in a number of important reported cases.

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