Promontoria (Oak) Ltd v Nicholas Michael Emanuel & Anor.

Where a claimant relies on a contractual instrument to establish title as assignee, the whole instrument should normally be available to the court. Exceptional redactions must be kept to a minimum and clearly justified. Irrelevance alone will usually not suffice, and confidentiality does not justify withholding relevant material.

There is, however, no automatic rule excluding a redacted instrument. The decisive question is whether, in its procedural and factual context, the court can safely determine its effect on the evidence available. If it can, the court may find title established; if it cannot, the claimant fails to prove title. Objections to redactions should ordinarily be raised before trial.

Promontoria (Oak) Ltd brought possession and money claims as assignee of Clydesdale Bank plc’s rights under a legal charge. It relied on a redacted assignment deed. The Recorder admitted the deed and found that Promontoria Oak had proved title.

On appeal, Marcus Smith J held that the Recorder had been entitled to find title proved on the evidence, but also held that the redacted deed should not have been admitted: [2020] EWHC 104 (Ch). In a later judgment, he left the Recorder’s order unchanged because Promontoria Oak was registered as proprietor of the charge: [2020] EWHC 563 (Ch).

Both parties appealed. The court heard the appeals with three related assignee claims, addressing the common question of how a court should deal with a redacted document relied on to prove title to sue.

1. Promontoria Oak’s appeal was allowed. The Recorder had been entitled to admit the redacted assignment and to find, on the evidence before him, that Promontoria Oak had title to sue. Marcus Smith J’s contrary conclusion could not be reconciled with his dismissal of the challenges to the sufficiency of that same evidence.
2. The court reaffirmed the guidance in Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907. A contractual document to be construed should normally be produced in full. Redactions require a clear and particular explanation. They must be confined to material that is plainly irrelevant, and normally require an additional justification such as privacy or confidentiality. Confidentiality alone cannot justify withholding relevant material.
3. That guidance is not an inflexible admissibility rule. The question is whether the court can safely determine the document’s effect in the context of the issue before it. An assignment issue may be limited to whether the document transfers the identified debt, rather than a dispute requiring construction of competing meanings throughout the instrument. If the court cannot safely decide that issue, the claimant has not proved title. If it can, fairness does not require rejection of the document merely because it is redacted.
4. A debtor sued by an assignee may put title in issue. Under section 136(1) of the Law of Property Act 1925, the debtor may seek enough of the assignment to verify a valid absolute assignment and that payment will give a good discharge. That entitlement does not extend to irrelevant and confidential parts. Confirmation from the assignor will commonly remove any practical risk of double payment.
5. Parties should raise objections to redactions through case management or interlocutory applications, rather than for the first time at trial. The Emanuels’ cross-appeal, concerning registration of the charge as an alternative basis for title, was unnecessary to determine.

The court also dismissed the related appeals in Samra, Simpson and Bibby.

• Court of Appeal (Civil Division): Promontoria Oak’s appeal was allowed. The Emanuels’ cross-appeal was not determined: [2021] EWCA Civ 1682.
• High Court, Chancery Division: Marcus Smith J held that the Recorder had been entitled to find title proved, but allowed the appeal on the admissibility issue: [2020] EWHC 104 (Ch). He subsequently left the Recorder’s order unchanged on an alternative basis: [2020] EWHC 563 (Ch).
• County Court: Recorder Willetts admitted the redacted assignment and gave judgment for Promontoria Oak.