Aqua Global Solutions Ltd v Fiserv (Europe) Ltd

Under Civil Procedure Rules 1998, r 31.14, a party ordinarily has an entitlement to inspect a document directly mentioned in a statement of case and materially relevant to the issues. The respondent bears the burden of showing why inspection should be refused or restricted. Confidentiality, privilege, irrelevance, proportionality and necessity may justify restrictions, but confidentiality should ordinarily be addressed by suitable safeguards. Where the document’s meaning and relevance depend on its contents as a whole, selective redaction may be inappropriate. A confidentiality ring can protect commercially sensitive information while preserving the parties’ ability to conduct the litigation effectively.

Aqua Global Solutions Ltd claimed that Fiserv (Europe) Ltd had exceeded the permitted use of the claimant’s software when licensing it to Tesco Personal Finance. The claimant sought inspection of the unredacted Tesco Licence Agreement, which was expressly mentioned in the Defence and was relevant to licence scope, maintenance charges and the restrictions applicable to the sub-licence.

A heavily redacted copy had been supplied. Following an earlier consent order creating a confidentiality ring, the defendant argued that the inspection application had been compromised and that the remaining material was irrelevant or confidential. The central issues were whether the application remained open, whether inspection should be refused or limited, and whether disclosure of the entire agreement subject to confidentiality safeguards was appropriate.

1. Application under CPR 31.14. The inspection application remained extant. The earlier consent order adjourned the application while the parties explored a compromise. It did not compromise the application itself. Clear and unequivocal language would have been required for that result.
2. Entitlement to inspection. The court distinguished the obiter observations in Danisco A/S v Novozymes A/S (No. 2) [2012] FSR 22. That case concerned a lengthy dossier, a modified patent disclosure regime and limited argument. By contrast, the present application concerned a single commercial agreement directly mentioned in a statement of case and directly relevant to issues for trial. The approach in Rubin v Expandable Ltd [2008] 1 WLR 1099 supported a broad, cards-on-the-table approach.
3. Although r 31.14 used unqualified language, the court retained power to decline or restrict inspection. Examples included privilege, confidentiality requiring safeguards, and very large volumes of documents where necessity and proportionality justified refusal. Where a document was directly relevant and mentioned in a statement of case, the respondent had to provide particularly cogent reasons for resisting inspection.
4. Confidentiality and redaction. Tesco’s commercial interests could be protected through a confidentiality ring, undertakings and restrictions on use, together with an order preventing non-party access to the document on the court file under CPR 31.22(2). The agreement’s provisions had differing degrees of relevance, but its meaning had to be assessed as a whole. Redaction was therefore neither necessary nor desirable. The entire Tesco Licence Agreement was to be disclosed to the claimant’s legal advisers and specified individuals subject to confidentiality protections. The claimant’s expert might later be admitted to the ring.
5. The defendant’s application was dealt with by an order under CPR 31.22(2), but not in its wider terms, and an order was made under CPR 5.4C(2).

First-instance decision. No prior appellate decision is stated in the judgment.