JSC COMMERCIAL BANK PRIVATBANK v IGOR VALERYEVICH KOLOMOISKY & Ors

Redactions in documents already identified for disclosure must be assessed against any issue in the proceedings, not merely the narrower Issues for Disclosure used to identify documents for search-based extended disclosure. Commercial communications may remain relevant as narrative background or evidence of relationships, control, loyalty and conduct even where they concern different transactions or post-date the events in issue. Where extensive redactions may reflect an unduly narrow approach to relevance, the court may require a further review and a sufficiently particular schedule explaining each maintained redaction. Blanket unredacted disclosure, confidential disclosure to lawyers or judicial inspection are discretionary alternatives. Relief must remain reasonable and proportionate under the Civil Procedure Rules 1998 and CPR PD 51U.

The claimant sought further disclosure orders concerning 26 chains of WhatsApp messages collected from the first defendant’s mobile telephones. Most messages had been redacted on the stated ground that they were irrelevant and confidential under CPR PD 51U para 16.1(1). The claimant argued that the redactions reflected an unduly narrow view of relevance, particularly because the messages could illuminate control of the claimant and related entities, continuing relationships with employees and associates, and post-nationalisation conduct.

The application engaged the court’s power under CPR PD 51U para 17 to address an actual or possible failure adequately to comply with extended disclosure obligations, together with the proportionality factors in para 6.4. The central issues were the proper scope of relevance for redaction and the proportionate form of further relief.

1. Application granted in part. The court found that there had been, or might have been, a failure adequately to comply with the extended disclosure order because the redactions appeared to have been assessed by reference only to the Issues for Disclosure and by reference to whether material was of particular significance. CPR PD 51U para 16.1(1) permits redaction only where the redacted data is irrelevant to any issue in the proceedings and confidential.
2. The Issues for Disclosure govern whether a document must be identified and disclosed under the relevant disclosure model. They do not define the separate question whether part of an identified document may be redacted. Once a document is disclosed, relevance is assessed against any issue in the proceedings.
3. Communications concerning transactions outside the immediate dispute may nevertheless be relevant. They may illuminate the nature and extent of business relationships, control, standing approval, employee loyalty and the conduct of persons connected with the claimant or related entities. Post-nationalisation communications may cast light on pre-nationalisation control. The relevance of such material may diminish over time, but subtle evidence remains capable of being relevant.
4. Where redactions are extensive, the court may adopt greater vigilance. Under para 16.2, the disclosing party should ordinarily provide a schedule identifying each redaction, the reason for it, and, where necessary, a clear generic explanation of the subject matter. The schedule may group redactions only where the recipient, date and time, and generic subject-matter description are identical within a chain.
5. Having regard to the overriding objective and CPR PD 51U paras 17.2 and 6.4, blanket disclosure, a Hollander-type confidentiality order and judicial inspection were not presently proportionate. The first defendant was instead ordered to procure a further review of all redactions against the broader relevance test and to provide a verified schedule. Further relief remained available if disputes persisted.