Redactions For Privilege, Irrelevance And Public Interest Immunity, And Waiver Of Privilege: High Court Provides Guidance

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege
• Author: Mr Julian Copeman, Maura McIntosh and Charlotte Benton
• Published date: 24 October 2023

In a recent decision, the High Court has considered various challenges to redactions on grounds of privilege, irrelevance, and public interest immunity (PII), as well as the question of when privilege will be lost by referring to a document in open court and/or in a party's statements of case: Eurasian Natural Resources Corporation Ltd v the Director of the Serious Fraud Office & Ors [2023] EWHC 2488.

Points of interest from the decision include:

• The court will generally take a cautious approach to exercising its discretion to inspect documents to determine whether redactions had been properly applied.
• While parties are required to explain the basis on which material is redacted for privilege, the court will not require an explanation to be provided in such detail that it would destroy the privilege claimed.
• As for redactions on grounds of irrelevance, material can be redacted only if it is not relevant to any point in issue between the parties - whether or not that issue forms part of the List of Issues for Disclosure.
• Confidentiality - and therefore privilege - may not always be lost in an entire document where parts of it are referred to in open court.
• Where the content of a privileged document is relied on in a party's statement of case, privilege will generally be waived but the party may be allowed a grace period in which to amend the pleading in order to avoid a broader waiver.

Background

The decision relates to ongoing proceedings brought by the claimant, Eurasian Natural Resources Corporation, against the Director of the Serious Fraud Office (SFO) and current and former SFO employees, in which the claimant alleges that sensitive information about the SFO's criminal investigation into the claimant had been leaked by SFO officers to journalists and other third parties.

In the proceedings, the SFO disclosed a report from an internal investigation, in which it was found that the third defendant (an SFO employee) had a "case to answer" in relation to the leaks. The SFO had made various redactions to the report on the basis of PII, privilege, and irrelevance and confidentiality, which the claimant sought to challenge. The claimant also sought a declaration that privilege had been waived over a separate document, due to it having been referred to in court and in the SFO's pleadings.

Decision

Inspection of privileged documents

Paragraph 14 of Practice Direction 57AD provides that the court may inspect documents if "necessary" to determine whether the...