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Can a party redact terms from a contract in making disclosure? Yes, but only with good reason

Posted on 13 December 2021

The English Court of Appeal has held that the principles governing a party’s entitlement to redact contracts the court is required to construe differ from those governing documents generally: Promontoria (Oak) Ltd v Emanuel [2021] EWCA Civ 1682 (18 November 2021).

The Court’s decision arose in the context of debt assignment agreements where the debtors argued that the claimants needed to reveal the full terms of the agreements to prove title to sue. The claimants disclosed the agreements but had redacted various terms on the grounds that they were irrelevant and/or commercially sensitive.

The long-settled rule for documents generally is a party can redact irrelevant parts of documents and that a certificate to that effect by the party’s solicitor is conclusive: G.E. Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172.

In this case, the English Court of Appeal said that different principles apply to contracts the court is required to construe. This is because the court must construe the contract in light of all its terms. As such (at [44]):

  1. the starting point is that the entire document should be placed before the Court;
  2. any redactions should be fully explained by the party making the redaction, with sufficient particularity for the Court to be able to rule on the need for redaction if it is challenged;
  3. redaction for irrelevance is generally not permitted or should be kept to an absolute minimum - usually something more is required to justify redaction; and
  4. confidentiality, privacy or other reasons may justify redaction, but even confidentiality without more should seldom justify redaction.

Applying these principles, the Court broadly held that the claimants were entitled to redact the debt assignment agreements to remove commercially sensitive information. While the Court suggested that certain redactions on the basis of irrelevance were not justified, this did not warrant interfering with the decisions of the courts below.