Redactions in Disclosure

Johnersh

My Knowledge Management team have brought an interesting Court of Appeal case to my attention this morning.  It is Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 - link to the judgment here: https://www.judiciary.uk/wp-content/uploads/2020/07/Hancock-draft-judgment-final-14-July-2020.pdf

Obviously the network of contracts are key in these cases, since the parking charges raised are said to be contractual. 

• In most parking cases there is no disclosure or very late disclosure.  When it comes, it is often "thin" or contains redactions, which those representing the claimant parking companies often claim to be essential for commercial sensitivity or similar. 

 **No Dice**

The Court of Appeal are now clear that such a response won't cut it and care needs to be taken with redactions where the Court are being asked to interpret the contract.  See paras 74 & 75.

...The document must in all normal circumstances be placed before the court as a whole...

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Helpful though that is, do bear in mind that it is not a panacea.  In my view (and it's just my view) it MAY be perfectly appropriate for, say, a supermarket to conceal what they are paying a parking company in cash terms, but it is harder to see a valid reason to conceal the names of parties to contracts, signatures which reveal whether they are properly executed and dates of validity, for example.

Make of that what you will.  It could be helpful in the right case. 

DoaM

Is that appeal addressing what's submitted to the court or what's submitted to the other party? (I recall many times the PPC saying they'll submit an unredacted contract to the court but not to the defendant). I agree that PPCs tend to over-redact their contracts (such as they are) so as to (try to) mislead a defendant.

Fruitcake

Excellent work. I am of the same opinion that redacting the amount of monies paid in the circumstances above is acceptable, but not hiding the name of a signatory or their alleged position in a company that is party to the contract. 
Omitting the name of the "client" or location is another favourite of the scammers which should also be challenged.

Johnersh

@DoaM they need to have an essential reason to redact. The approach of "we'll sue you and show a judge our evidence later" basically compels a hearing. Hardly costs appropriate. This provides a good basis to challenge such points and I would say, to seek wasted costs. 

Umkomaas

A Tesco Judgment. Every little helps. And helpful it is. Thank you @Johnersh.🙂

Castle

Johnersh said:

@DoaM they need to have an essential reason to redact. The approach of "we'll sue you and show a judge our evidence later" basically compels a hearing. Hardly costs appropriate. This provides a good basis to challenge such points and I would say, to seek wasted costs. 

That would also extend to the Car Park signs themselves, (AKA the "contract" between the PPC and the Driver).

Umkomaas

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Can that be read as the contract principal would need to provide written authorisation for any redactions?  And if so, that would need to be on a case by case, contemporaneous basis, rather than a coverall paragraph of the contract signed at inception?

Fruitcake

Umkomaas said:

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Can that be read as the contract principal would need to provide written authorisation for any redactions?  And if so, that would need to be on a case by case, contemporaneous basis, rather than a coverall paragraph of the contract signed at inception?

That's a good point. How can the scammers unilaterally decide what should be redacted without first checking with their "client" to see if they actually want anything to be redacted, especially if it is the "client's" data that is being redacted?

Umkomaas

Fruitcake said:

Umkomaas said:

Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...

Can that be read as the contract principal would need to provide written authorisation for any redactions?  And if so, that would need to be on a case by case, contemporaneous basis, rather than a coverall paragraph of the contract signed at inception?

That's a good point. How can the scammers unilaterally decide what should be redacted without first checking with their "client" to see if they actually want anything to be redacted, especially if it is the "client's" data that is being redacted?

If it is the case, the PPC will be pushing for as much redaction as they currently undertake, if so, then the above appeal would surely bounce that out?  Even if it is for minor, inconsequential redaction, the contract principal is going to get mighty peed orf having to sign contemporaneous authorities for each court case involving his land, and especially given the volume of court cases across E&W, almost all having a contract up for examination in court. This could be fun!

Johnersh

Without wishing to over think it, I see it simply as the court ensuring they have a complete picture of the evidence - it is not for someone else to decide what is relevant for them to see - particularly if they are relying on that same document 

nosferatu1001

Yep, thats how I see it as well. 
Unilateral to me would mean it would have to be with the agreement of the court what can be redacted. Not up to one party on their own. Nothing to do with the landholder.