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The Chancery Division has ordered the disclosure of a confidential document referred to in the defendant’s defence under CPR 31.14. In doing so, it considered the meaning of ‘mentioned in’ a statement of case, applying the Court of Appeal’s decision in Rubin v Expandable and distinguishing this case from the Patent Court’s decision in Danisco v Novozymes.
Having ordered the disclosure of the document, but being aware of the confidential nature of the document and the third party’s interests in seeking to maintain that confidentiality, the court also addressed the extent to which the document should
be redacted, the formation of a confidentiality ring, protecting the documents from subsequent use under CPR 31.22(2) and restricting non-parties from being able to access the document from the court file without a court order pursuant to CPR 5.4C.
This judgment is interesting to practitioners on the potential risks in referring to documents in statements of case and ways in which confidential information can be protected in the context of disclosure.
Practical implications arising from Aqua Global Solutions Ltd v Fiserv (Europe) Ltd  EWHC 1627 (Ch) include:
The claimant applied under CPR 31.14 and CPR 31.15 and/or CPR 31.12 to inspect an unredacted copy of a confidential agreement between the defendant and a third party, Tesco (the document), which had been referred to in the defence.
The defendant had previously supplied a 'very heavily' redacted version of the document, justifying the redactions on grounds the majority of the document was irrelevant to the issues in dispute between the parties and that the document contained confidential
and commercially sensitive information which the defendant owed a duty to Tesco to protect.
There had, subsequently, been various discussions which had sought to resolve this issue and which had resulted in a draft consent order which included, among its terms, the creation of a confidentiality ring. However, ultimately the issue came before
The court directed the full, unredacted, document be disclosed, albeit subject to the terms of a confidentiality ring.
It also made orders under:
In coming to its decision, the Chancery Division considered the following key issues:
Both are dealt with in more detail below.
Chief Master March found the claimant had the right to inspect the document as the defendant had not demonstrated there were 'good grounds for limiting the right of inspection on the grounds of confidentiality or irrelevance'—the document was 'directly
relevant to issues which will have to be resolved at the trial of this claim' and the court was satisfied that Tesco's interests could be 'adequately protected in the course of this litigation so far as disclosure into the public domain of confidential
information is concerned' (paras  and ).
In ordering the disclosure of the document, the court had to ensure the interests of the parties were 'balanced so as to ensure that the Claimant is able to conduct this litigation without undue restrictions whilst preventing confidential information
being misused or leaking'.
Although it accepted the claimant was a potential competitor of the defendant and had 'shown an interest in entering into a commercial relationship directly with Tesco' it did not think the balance could be properly maintained without disclosure of the
document, albeit 'subject to confidentiality provisions in the form of undertakings provided to them and an express restriction preventing them, and the Claimant, from using information obtained from inspection of the document' (para ).
In doing so, the court:
applied the Court of Appeal's reasoning in Rubin, namely that, generally, a party's mentioning of a document in its pleadings is a form of disclosure and, as such, the other party ought to be entitled to inspect it (para )
For further guidance on inspecting documents referred to in statements of case, etc see Practice Note: Disclosure—inspection — Inspection under Rule 31.14—documents referred to in statements of case, witness statements, etc.
The court found that, although there were elements in the document which were of 'marginal' relevance to the issues in dispute, there were (as was accepted by the parties) parts of the agreement which were relevant to the claim and, therefore, it was
not 'necessary or desirable' to redact parts of the document—'it is axiomatic that the meaning of a document must be derived from a consideration of the whole document'. The court here considered this was not a case where it was obvious that
there were different subject matters as might, for example, be the case in board minutes (see below).
GE Capital Corporate Finance Group Ltd v Bankers Trust Co  2 All ER 993,  1 WLR 172
In coming to this decision, the court referred to Charles Hollander QC's suggestions, made in response to the Court of Appeal's observations in GE Capital v Bankers Trust that a party is entitled to redact parts of a document it considers irrelevant,
For further guidance on redaction, see Practice Note: Disclosure—confidential information — Redaction.
As above, the court ordered the document be disclosed subject to the terms of a confidentiality ring. Although it had not considered the terms of the order or the undertakings to be given, it did indicate that members of the confidentiality club were
likely to have to include the claimant's legal advisers, the claimant's in-house legal adviser, two named directors of the claimant and the claimant's expert.
The court also referred to the unsatisfactory nature of confidentiality rings where legal advisers are in possession of information they are unable to obtain instructions from their client on.
For further guidance on confidentiality rings, see Practice Note: Disclosure—confidential information—Confidentiality rings.
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Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.
Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.
In practice, Virginia acted in a variety of general commercial disputes covering areas including intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.
Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.
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