- William Kanaan
Redacting documents where court is asked to construe their meaning or effect
The Court of Appeal has considered whether a party may redact parts of a document which the court is asked to construe solely on the basis of a solicitor's statement that those parts are irrelevant.
The Court distinguished between rules applying on disclosure of documents, and those applying when the court construed a document. In relation to discovery, only relevant documents and parts of documents that are relevant should be disclosed.
However, when a court is asked to construe a document, the default position was always that the document in its entirety should be available.
Redactions on the grounds of irrelevance should be not be permitted, but if they are to be redactions, then they should be convincingly justified and kept to a minimum.
The court considered that a solicitor could give a certification that the redacted parts were not relevant but they should not pre-judge which parts of a document might assist the court in construing it (unless the redacted parts could not reasonably have any bearing on the case).
It is in some circumstances possible to redact a document for reasons of, for example, privilege, protecting privacy or confidentiality. However, confidentiality alone would not justify redacting provisions that were relevant in a document which the court had to construe.