JSC COMMERCIAL BANK PRIVATBANK V KOLOMOISKY AND OTHERS  EWHC 868 (CH)
In JSC Commercial Bank Privatbank v Kolomoisky and others the Court determined that the first defendant should re-review redactions applied to WhatsApp messages he had disclosed as he had adopted an unduly narrow approach to what was relevant.
Unless it is protected by privilege, material can usually only be redacted for court proceedings where it is irrelevant to any issue in the proceedings. This decision highlights the importance of the distinction to be drawn between "issues for disclosure" and "issues in the proceedings" when applying redactions.
The decision also shows the danger of adopting a narrow approach to extended disclosure under Practice Direction 51U (the disclosure pilot which applies in the Business and Property Courts) and the importance of giving an explanation for applying redactions.
The case was proceeding in the Commercial Court and was therefore subject to PD 51 U.
Originally, the first defendant disclosed 6,209 What's App messages. Only 272 messages were not redacted, and in a number of messages it was not possible to identify the counterparty. The reason he gave for the redactions was that the data fell under CPR PD 51U 16.1(1): it was irrelevant to any issue in the proceedings and confidential. He did not provide a more specific explanation in relation to the redactions.
Following the initial disclosure of the WhatsApp messages, the claimant sought an explanation and additional disclosure. This resulted in the defendant removing redactions from a further 150 messages, explaining that a re-review concluded that the further 150 messages were "at least arguably relevant to the issues for disclosure", although unlikely to be significant.
The claimant subsequently applied for an order, under CPR PD 51U 17, that the WhatsApp messages be disclosed unredacted, (subject to a confidentiality club) or that the defendant disclose certain specified chains.
KEY LEGAL POINTS
Trower J granted the claimants application and held:
- The approach adopted by the defendant in relation to redactions was too narrow.
- The defendant may have misunderstood the important distinction between "any issues in the proceedings" and "Issues for Disclosure".
- There may have been a failure to comply adequately with an order for extended disclosure.
The relief sought by the claimant was not appropriate given the facts of the case, he said; instead he ordered the defendant to re-review the messages, anticipating that the defendant would now disclose more messages following the re-review.