Factual and Procedural Background
This judgment concerns the claimant's application for further orders relating to the first defendant's disclosure of 26 chains of WhatsApp messages. These messages were obtained from images of the first defendant's mobile phones and disclosed in heavily redacted form. The claimant argued that many of the redactions were unjustified and sought an order requiring 17 of these message chains to be disclosed unredacted to its solicitors.
The original disclosure orders were made by Judge Mann on 26 June 2020 under CPR PD 51U, ordering extended disclosure with specific Issues for Disclosure and models of disclosure (Model D and Model E) to be applied. The Issues for Disclosure related to control and ownership matters involving the first and second defendants and other entities connected to the claimant's claim, including employee loyalty post-nationalisation in 2016.
The court's jurisdiction to grant further relief arises under paragraph 17 of CPR PD 51U, which permits additional orders where there has been or may have been failure to comply adequately with extended disclosure orders. The claimant must show that such orders are reasonable and proportionate.
Legal Issues Presented
- Whether the redactions applied by the first defendant to the disclosed WhatsApp messages were justified under paragraph 16.1(1) of CPR PD 51U, specifically whether the redacted data was irrelevant to any issue in the proceedings and confidential.
- What is the appropriate relief where there is doubt as to the justification for redactions in extended disclosure, particularly in relation to WhatsApp messages from the first defendant.
- Whether the court should order full unredacted disclosure, a confidentiality club (Hollander order), inspection by the court, or a further review of redactions with additional explanation.
Arguments of the Parties
Claimant's Arguments
- The claimant contended that many redactions were unjustified and that the first defendant and its solicitors had adopted an unduly narrow approach to relevance, focusing only on specific Issues for Disclosure rather than any issue in the proceedings.
- The claimant argued that WhatsApp messages between the first and second defendants about their business relationship and control over joint assets were relevant, even if not directly related to the claimant's specific transactions.
- Communications between the first defendant and the claimant's pre-nationalisation CEO were relevant to control issues and indicative of ongoing influence post-nationalisation.
- Other WhatsApp communications with individuals connected to the claimant's affairs were relevant as narrative background or directly to control issues.
- The claimant submitted that the narrow interpretation of relevance taken by the first defendant's solicitors failed to appreciate the broader scope of what could be relevant under paragraph 16.1(1).
First Defendant's Arguments
- The first defendant, through its solicitors, Fieldfisher, maintained that the redacted data was irrelevant to any issue in the proceedings and confidential, justifying redaction under paragraph 16.1(1).
- Fieldfisher explained that redactions related primarily to unrelated commercial transactions and other unrelated commercial information.
- They increased the number of unredacted messages after correspondence with the claimant but maintained that the majority of redacted messages were irrelevant and confidential.
- The first defendant resisted full unredacted disclosure and the establishment of a confidentiality club due to concerns about disclosure obligations in other jurisdictions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| WH Holding Ltd v E20 Stadium LLP [2018] EWHC 2578 (Ch) |
Justification for redactions and court’s vigilance when many documents are heavily redacted; court may inspect documents or require further explanation. |
Used to support the principle that heavy redactions justify greater court scrutiny and to outline possible remedies including inspection or confidentiality clubs. |
| Recovery Partners GP Limited v Rukhadze [2021] EWHC 1621 (Comm) |
Use of Hollander order (confidentiality club) for disclosure of redacted documents to named lawyers for further review. |
Referenced as an example of a remedy where documents are disclosed confidentially to legal teams to resolve disputes over redactions. |
| Bank Austria AG v Price Waterhouse [1997] CLY 464 |
Supporting authority on court inspection of documents in disclosure disputes. |
Discussed in WH Holding as a precedent for court inspection of disputed documents. |
| Atos Consulting v Avis plc [2007] EWHC 323 (TCC) |
Further authority on inspection and disclosure principles. |
Discussed in WH Holding as part of the court’s approach to disclosure and inspection. |
| Eurasian Natural Resources Corpn Ltd v Dechert LLP [2020] EWHC 1002 (Comm) |
Requirement for a detailed schedule explaining the basis for each redaction, including whether it is on grounds of irrelevance and confidentiality or privilege. |
Adopted to require a clear explanation for each redaction to avoid overly general descriptions. |
| UTB LLC v Sheffield United [2019] EWHC 914 |
Clarification regarding claims to privilege and the need for precise explanations rather than generic labels. |
Used to reinforce the need for accurate and complete explanations of redactions. |
| Astra Asset Management UK Limited v MUSST Investments LLP [2020] EWHC 1871 (Ch) |
Emphasized that generic descriptions such as 'irrelevant and confidential' are insufficient without accurate and complete explanations. |
Supported the court’s view that detailed explanations are necessary for redactions to be justified. |
Court's Reasoning and Analysis
The court analysed the scope of paragraph 16.1(1) of CPR PD 51U, which permits redactions only if the redacted data is irrelevant to any issue in the proceedings and confidential. It distinguished between the initial identification of documents for disclosure (based on Issues for Disclosure) and the narrower question of whether parts of those documents can be redacted. The court found that the first defendant and its solicitors had wrongly equated relevance with the narrower Issues for Disclosure rather than the broader concept of any issue in the proceedings.
The court accepted the claimant’s submission that the first defendant’s approach to relevance was unduly narrow and that many redacted WhatsApp messages were likely relevant to issues such as control, ownership, and employee loyalty, even if they related to commercial matters not directly within the Issues for Disclosure. The court highlighted examples where communications between the first defendant and key individuals (including the claimant’s pre-nationalisation CEO and other significant persons) were relevant to understanding control and relationships impacting the proceedings.
While the court acknowledged that not all messages would necessarily be relevant, it was not persuaded that blanket unredacted disclosure was appropriate at this stage. It also rejected the immediate use of a confidentiality club (Hollander order) due to concerns about cross-jurisdictional disclosure obligations, and declined to inspect the documents itself, considering that not the most satisfactory approach.
Instead, the court ordered a further detailed review of the redactions, requiring the first defendant and its solicitors to prepare a schedule identifying for each redacted WhatsApp message the recipient, date, time, and a generic description of the subject matter, excluding confidential irrelevant information. This schedule must be verified by a witness statement. The court deemed this review reasonable and proportionate given the limited disclosure from the first defendant’s own sources and the case’s complexity. If disputes remain, the claimant may seek further relief under paragraph 17 of CPR PD 51U.
Holding and Implications
The court's final decision is to ORDER A FURTHER REVIEW OF THE REDACTIONS applied to the WhatsApp messages disclosed by the first defendant. The first defendant must instruct its solicitors to prepare a detailed, verified schedule explaining each redaction with sufficient information to allow proper assessment of relevance. Full unredacted disclosure and a confidentiality club order were declined at this stage, as was court inspection of the documents.
The direct effect of this decision is that the first defendant must reassess its redactions with a broader and more appropriate understanding of relevance under CPR PD 51U and provide clearer explanations. No new precedent was established; rather, the decision reinforces existing principles regarding disclosure, redactions, and the court's supervisory role in ensuring compliance with extended disclosure orders.