In Decura IM Investments LLP v UBS AG, London Branch [2014], the High Court judge was asked to consider a number of complaints made regarding the defendant’s disclosure exercise, i.e. how they had dealt with disclosing the evidence in support of or harmful to their case (previously called discovery).
As any party to proceedings will know, disclosure is a vital part of the litigation process. Apart from witness evidence, it’s possible the single-biggest decider of the outcome (it’s really only trumped where the Court is being asked to consider a case of pure law — unusual these days).
Redaction or marking out of documents is not that common place, and usually arises in specified circumstances, like legal advice privilege or matters of national security. What this case highlights though are some important practical points.
- It’s important that you and your legal advisers understand fully your and their obligations arising from any court order. If you’re not sure, it’s as well to ask.
- The importance of liaising with the other side over disclosure, and raising any issues that cannot be agreed, at an early stage. The last thing you want to find is that the case gets put off because of late or wrong disclosure.
- The costs implications.
- If you are going to redact documents it’s important to explain the basis for the redaction and not just assume that it will be understood by the other side or the judge. It’s as well to make a careful note and to have the original copy to hand to make sure you remember yourself!
Ultimately, and it goes without saying, redaction is not to be used to avoid disclosing documents that are prejudicial — disclosure is a warts and all exercise — but there are occasions where redaction is appropriate. If you’re not sure, then you should seek advice from the outset.