Key takeaways
Excessive redactions can undermine disclosure duties
Heavy redactions may prompt judicial scrutiny, especially if they obscure relevant content or make documents unintelligible.
Legal privilege and relevance must be balanced
Parties must clearly distinguish between privileged content and irrelevant material, and be prepared to defend their approach.
Poor redaction practices may lead to cost penalties
If redactions are found to be unjustified or overly cautious, parties risk adverse cost orders and reputational damage.
Parties to litigation are typically required to disclose documents on which they rely as well as documents that may adversely affect their own case or that of another party. Documents may be withheld from inspection in certain circumstances, such as where a document is privileged (e.g. communications between the party and their solicitors), and disclosable documents may be redacted if, for example, a relevant document contains some irrelevant material.
A party wishing to dispute a claim to withhold inspection may seek a review of the relevant documents by the court (CPR 31.19(5)). In WH Holding Ltd, West Ham United Football Club Ltd -v- E20 Stadium LLP [2018], the High Court considered the circumstances in which it may be appropriate for the court to carry out such a review and emphasised the importance of exercising caution when redacting disclosable documents.
Background
The defendant, E20 Stadium LLP (E20), owns the stadium built for the London Olympics and Paralympics in 2012 (Stadium).
On 22 March 2013, West Ham United Football Club (West Ham) entered into a 99-year concession agreement under which E20 granted certain concessionary rights to West Ham to use the Stadium during the football season (concession agreement).
A dispute arose regarding the number of seats that West Ham was entitled to use under the concession agreement. West Ham alleged that E20 was in breach of the concession agreement and legal proceedings were issued.
Disclosure
The parties were required to carry out disclosure in January 2018. E20 disclosed 7,501 documents (with further documents being disclosed subsequently as part of E20’s ongoing disclosure obligations). Of those documents disclosed, 413 were redacted for privilege and 3,720 contained redactions which were stated to be for ‘irrelevance and/or commercial sensitivity’.
In July 2018, West Ham issued an application under CPR 31.19(5) seeking further information in respect of 323 of the redacted documents. E20’s lawyers responded detailing the reasons for each redaction and accepting that 95 of the documents could be disclosed fully.
At the hearing of West Ham’s application, it was agreed that further steps would be taken in an attempt to resolve the issue over redactions. Those steps included re-reviewing 33 documents which contained redactions both for privilege and for other reasons. E20’s lawyers were to identify whether any of the redactions could be reduced or removed, and proceeded to make a number of changes to the redactions accordingly.
It was further agreed that West Ham would identify a sample of 20 documents which had been redacted for irrelevance and that the parties would endeavour to agree a process for determining whether and to what extent those redactions had been properly made. Those documents were reviewed by a senior lawyer for E20 and he set out a schedule setting out his conclusions. The reason for each of the redactions for relevance was explained and it was suggested that some of the redactions could be removed in the interests of transparency or to enable West Ham to understand the wider redaction process or because they had been made in error.
West Ham continued to challenge the basis upon which E20’s documents had been redacted for irrelevance. It was asserted that E20’s lawyers had approached the exercise of redaction for relevance too heavy-handedly and with too narrow a view of what material might potentially be relevant to the issues in dispute. Further, the results of certain redactions had been to make the disclosed parts of the documents unintelligible.
Inspection by the court
The court cited numerous authorities on the appropriateness of exercising the court’s right to inspect documents withheld from inspection pursuant to CPR 31.19. The court considered that inspection by the court should be a last resort and, where the documents are withheld for reasons of privilege or relevance, agreed that the court should proceed in the following stages:
the court should consider the evidence produced in respect of the application
if the court is satisfied that the right to withhold inspection of a document is established by the evidence and there are no sufficient grounds for challenging the correctness of that asserted right, the court will uphold the right
if the court is not satisfied that the right to withhold inspection is established because, for instance, the evidence does not establish a legal right to withhold inspection, then the court will order inspection of the documents
if sufficient grounds are shown for challenging the correctness of the asserted right then the court may order further evidence to be produced on oath or, if there is no other appropriate method of properly deciding whether the right to withhold inspection should be upheld, it may decide to inspect the documents
if it decides to inspect then having inspected the documents it may invite representations
The decision of the High Court
The Court held that West Ham had established that there were sufficient grounds to challenge the correctness of the redactions and it was just to exercise the court’s discretion to inspect the documents. Therefore, the situation fell within the fourth category identified above. The heavy redaction of a large number of documents justified the Court adopting greater vigilance to ensure that the right to redact was not being abused or too liberally interpreted.
The Court considered that there was an obvious risk that reviewers may, entirely honestly, have taken an excessively narrow view of the potential relevance of documents or of the need to disclose it to make intelligible information that was required to be disclosed. The possibility that errors of approach or judgment might have occurred was borne out by the fact that modifications were made to the redactions upon the various reviews.
Further, the Court held that the court’s reluctance to inspect documents arises strongest where documents are withheld on the grounds of privilege; here, significant redactions were on the grounds of irrelevance. There were no viable options for the unredacted documents to be seen on a confidential basis by West Ham’s lawyers, as West Ham’s lawyers were involved in a number of disputes against E20 and, whilst the documents in question may not be relevant to the present dispute, the documents may be relevant to other disputes.
The High Court judge proceeded to inspect a sample of the documents to determine whether they were relevant. He found that the redactions had been properly made, though some modifications or removals were necessary to ensure consistency and intelligibility. E20’s lawyers were instructed to carry out a final review to ensure relevance and consistency of the remaining 323 documents.
Whilst the Court was satisfied that the end redaction of documents was largely correct, it took a number of reviews and a number of material changes to the overall level of redactions to get there. Therefore, E20 was ordered to pay 50% of West Ham’s costs.
Clear warning from the Court
In reaching its decision, the Court gave a clear warning to parties involved in litigation:
‘given the difficulties and suspicions to which extensive redaction inevitably gives rise, parties who decide to adopt such an appropriate in disclosure must take enhanced care to ensure that such redactions are accurately made, and must be prepared to suffer costs consequences if they are not’.
