WH Holding Ltd & Anor v E20 Stadium LLP

Inspection of redacted documents under CPR 31.19(5) is ordinarily a last resort. The court should first assess the evidence supporting the claimed right to withhold inspection. Inspection may be ordered where there are sufficient grounds to challenge the correctness of the asserted redactions and no suitable alternative mechanism exists.

Redactions for irrelevance must be assessed by reference to the information contained in the redacted passage. They must not destroy the sense of the disclosed material or make it misleading. Extensive redaction, an excessively broad approach to commercial sensitivity, successive corrections and inconsistent treatment may justify closer judicial scrutiny. Relevance under CPR 31.6 does not extend to speculative material concerning general financial performance or unrelated disputes.

The claimants, WH Holding Limited and West Ham United Football Club Limited, applied for information about, and ultimately inspection of, documents disclosed by E20 Stadium LLP with passages redacted for irrelevance and commercial sensitivity. The challenge to privilege redactions was adjourned for determination by another judge.

The disclosed documents concerned the parties’ dispute over seating capacity under a 99-year concession agreement for the London Stadium. The claimants argued that the redactions obscured material relevant to E20’s reasons for refusing to seek consents for increased capacity, including cost, safety and good faith. E20 argued that its lawyers’ successive reviews justified the redactions and that inspection should be exceptional.

The central issues were whether the court should inspect a sample of the unredacted documents under CPR 31.19(5), and what material was relevant for standard disclosure.

1. Inspection ordered. The court exercised its power under CPR 31.19(5) to inspect a sample of documents redacted for irrelevance. The application fell within the fourth category identified in Atos Consulting v Avis plc [2007] EWHC 323 (TCC): there were sufficient grounds to challenge the accuracy of the asserted redactions.
2. The staged approach in Atos Consulting v Avis plc was adopted. The court should first consider the evidence; uphold the withholding claim if established; order inspection if the right is not established; and, where the correctness of the claim is sufficiently challenged, require further evidence or inspect the documents where no other proper method is available. Inspection may then be followed by representations from the parties.
3. The burden lay on the applicant to justify inspection. Ordinarily, a responsible solicitor’s evidence will suffice. Greater vigilance was justified here because a very large number of documents had been heavily redacted, reviewers had been instructed to take a broad approach to commercial sensitivity, and successive reviews had altered the redactions.
4. On inspection, the court applied the standard-disclosure test in CPR 31.6. Information was relevant if it adversely affected E20’s case or supported West Ham’s case. The relevant inquiry concerned E20’s reasons for refusing increased capacity and the pleaded cost, benefit, safety and good-faith issues. General financial information unrelated to the Stadium, and material concerning other disputes, was too speculative and would invite satellite litigation.
5. Following GE Capital Corporate Finance Group Ltd v Bankers Trust [1995] 1 WLR 172, redactions could be made only if the remaining disclosure was not rendered unintelligible or misleading. The court also required consistency in redacting materially identical passages in comparable documents.
6. Most sample redactions were upheld, but a limited number were modified or removed. E20 was ordered to conduct a final relevance and consistency review of the remaining challenged documents under Mr Sargent’s supervision. E20 was ordered to pay 50 per cent of West Ham’s assessed costs of the redaction application.