Redaction refers to the process of censoring pieces of information in a document. For example, a screenshot of text messages showing texts from different dates may be redacted where earlier information is irrelevant.
In the Business and Property Courts, redaction of information is permitted via paragraph 16.1, Practice Direction (“PD”) 57AD of the Civil Procedure Rules. Redaction is conditional and is therefore permitted only on the ground that the data to be redacted is either (1) irrelevant to the issue in the proceedings, and confidential, or (2) privileged.
Significant problems can occur during the disclosure process of any litigious matter, particularly where one or both parties disclose documents containing redacted information.
It is, however, possible to challenge redactions. Redactions based on confidentiality or relevance are particularly questioned, as well as legal professional privilege. Recently, the High Court ordered disclosure of WhatsApp messages to an independent law firm so that they could review whether the redactions should have been made or not (Lloyds Developments Ltd v Accor Hotel Services UK Ltd [2024] EWHC 1238 (TCC)).
The facts of Lloyds Developments v Accor Hotel Services
In this case, the claimant disclosed a pdf document of redacted WhatsApp messages in a “muddled or jumbled form”.. The court stated that reading the redacted WhatsApp messages was “impossible or incomprehensible” due to the order of the messages and redactions. As a result, the High Court ordered the parties to review the redacted WhatsApp messages, and for the claimant to provide a witness statement explaining how the PDF document was created to display the redacted messages.
The claimant acknowledged the requirement for a further review. The aim of the additional review would be to identify relevant messages in the plethora of ‘jumbled’ PDF documents and disclose them with appropriate, and possibly reduced, redactions. The claimant also conceded that they would need to supply the court with a witness statement outlining the details about how they conducted their search for texts and WhatsApp messages during the disclosure stage of proceedings. They did not, however, agree to explain the creation of the incomprehensible PDF document.
Neither of the parties could agree on who should review the unredacted document to determine its relevance and confidentiality, as well as privilege. The Court therefore ordered the messages to be reviewed by an independent firm of solicitors with no previous knowledge of the matter. The parties were ordered to work together to instruct a firm jointly, but the claimant would fund the independent firm’s review cost. The reasoning behind appointing the independent firm was to ensure proper disclosure of the messages and to mitigate against “confirmation bias” that would occur if the review was repeated by the lawyers who had originally redacted the information in the PDF documents.
The court ordered that it was important for the defendant to know how the “patently inadequate” PDF was produced. The order sought by the defendant, pursuant to paragraph 17.1(5) of PD 57AD, was in the court’s scope and was also “relevant, useful and/or proportionate” for the court to go ahead and make the order.
Practical considerations
On a practical point, applying to the court for a party to provide a statement summarising why they have redaction information on grounds or irrelevance can put the applicant in a better position to challenge redactions. It allows for the applicant party to pick apart the reasoning and prove to the court that the redactions are inappropriate. Successfully challenged redactions can often strengthen a case, and facilitate toward a settlement, particularly if the respondent obtained damages from their claim or defence. However, before pursuing applications to challenge redactions in documents, advice should be sought to explore strategic steps, bearing redactions in mind.
A redacted document is often flagged by the other party as soon as it is disclosed, as little to no explanation is provided as to why it is redacted. Whether they pursue an application to review the redacted information is a decision to be made by them, either based on strategy or general importance. Therefore, although a party can supply redacted documents during disclosure, they cannot rely on the premise that they will always remain redacted.
Expert legal advice should be sought prior to pursuing this type of satellite litigation to explore other strategic steps that can be taken.
Legal disclaimer
The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.
Before acting on any of the information contained herein, expert advice should always be sought.