CL-2022-000456 - [2025] EWHC 1938 (Comm)

In conclusion:

The Claimants’ claims therefore fail.

ING’s Part 20 claim against Tecnimont also largely falls away, although there are some residual elements that will require further submissions in due course.

In Section XIII above, in the context of the oral evidence of Mr Fokin, I mentioned two documents that were the subject of significant redactions. While it has not been necessary to go into details in order to set out my conclusion on the issues that arose for determination, these were not isolated examples. A considerable number of documents disclosed by the Claimants were the subject of redactions, so that the Banks and Tecnimont, and the court, could not read their full text. A considerable number of further documents were disclosed into a confidentiality club, so that access to them (or their full text) was restricted to lawyers and a limited number of client representatives. In some cases, this occurred on the basis of a decision by the court that redaction or disclosure into the confidentiality club was appropriate. In many cases, it occurred without such a decision, or (at most) on the basis that documents should be disclosed into the confidentiality club on a provisional basis, subject to determination in the future.

In the course of the proceedings, and including the trial period, the status of a number of documents came to my attention. I had to rule on some of them (including the two documents discussed in Section XIII), in general deciding that they should not be redacted and were not confidential. For others (an important example being the Future of EuroChem memorandum), when the issue was raised, Mr Fenwick KC agreed that all redactions should be removed, without there being any need for argument. However, I am conscious that similar points have arisen in relation to many other documents which have not been brought to my attention.

I am also conscious that the fact that many documents were subject to redactions, and that others were subject to confidentiality restrictions that meant they could not be referred to in open court, at least until access to these documents had been raised with me in the course of the trial, has been problematic. It has made the parties’ preparation for trial more complex than would otherwise have been necessary. It has disrupted the trial process, slowing things down and requiring the use of additional time. In some instances, it came close to causing unfairness: here I have in mind the two documents already referenced, the redactions to which were removed only part-way through Mr Fokin’s evidence, in a way that prevented Mr Kitchener KC from cross-examining on them as fully as he would have wanted, because of the limited time that was practically available for Mr Fokin’s evidence (although I should say that Mr Kitchener KC managed extremely capably and with great forensic pragmatism, in difficult circumstances).

My overall impression was that the Claimants’ approach to disclosure was that any material that they did not wish to be seen, or at least to be seen by the general public, could be dealt with by redaction and/or the Confidentiality Club, on the basis that it would then be up to the Banks and Tecnimont to challenge the treatment of each relevant document, should they wish to do so, on a case-by-case basis.

This resulted in some documents being disclosed only in heavily redacted form, and many having to be treated as confidential, unless and until challenged. In some instances, the redactions affected entire sections of a document. In others, specific words or phrases were redacted in an otherwise unaffected sentence.

The fact that the redactions were carried out in this way is crucial to much of what I have to say:

In relation to some documents – the obviously important documents that had been disclosed only in redacted form, and the handful of truly significant documents in the Confidentiality Club that were referred to repeatedly – it was a practical necessity for challenges to be made by the Banks and/or Tecnimont. However, in relation to many other documents in the Confidentiality Club, it would have been excessively time-consuming to make such challenges. The Banks and Tecnimont preferred to muddle through, with the documents remaining in the Confidentiality Club.

This was so even though it meant that all the parties had (for example) to prepare both confidential and non-confidential versions of their written submissions. It also meant that everyone had to take great care when cross-examining and making submissions in open court, not to reveal the contents of documents that were still treated as being in the Confidentiality Club.

I should say that I am not making the lazy and unfair assumption that none of the documents that went into the Confidentiality Club truly belonged there, or that none of the redactions made were justified. I know that in many instances the Claimants had good reasons for behaving as they did. However, I am aware that by far the majority of the documents that I had to rule on were documents that I did not consider confidential; and that a significant number of documents went into the Confidentiality Club without it having been positively determined that they belonged there. This makes me concerned, without being sure either way, that there may have been many more documents in the Confidentiality Club, which I have not seen or ruled on, that should not have been there.

Against this background, it is necessary to say two separate things.

First, a fundamental long-standing feature of the judicial system of this country is the commitment to open justice. This has been remarked on in many cases (such as Scott v Scott [1913] AC 417 and Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38), and is enshrined in (for example) CPR Part 39. Parties who come to this country seeking justice are obliged to respect and share our commitment to open justice. It is part of the price of litigating here.

Under CPR Practice Direction 57AD, paragraph 16(1), redactions can only be made to non-privileged documents if the redacted material is (i) irrelevant and (ii) confidential. Both these criteria have to be satisfied.

The test for relevance is, in general, the text for standard disclosure in CPR 31.6, i.e. whether the relevant information adversely affects one party’s case or supports the other’s: see for example WH Holding Limited v E20 Stadium LLP [2018] EWHC 2578 (Ch), per Snowden J at [44]. However, where the relevance of a document is accepted, I consider that the disclosing party needs to think carefully before making redactions to the particular passages that make the document relevant. They must assess whether the redaction of any words or phrases in the relevant passages will adversely affect the reader’s understanding. In my view they must do so cautiously and, if in doubt, should not redact. Words that are necessary for the proper understanding of any relevant passage must, themselves, be relevant.

The test for confidentiality has been authoritatively considered and explained by an earlier judgment in Cavallari v Mercedes-Benz Group AG – that of Cockerill J: [2024] EWHC 190 (KB), at [34]-[50]. I do not attempt to summarise or paraphrase any of the important observations made by Cockerill J, but it is worth emphasizing the significance of her point at [41] that confidentiality can be lost. Something that may originally be confidential may lose its confidentiality; sometimes because it enters the public domain, but also because the simple passage of time may mean that it loses topicality and will no longer be capable of conferring any advantage on a competitor. In the context of this case, details of EuroChem’s current business activities and future intentions may have been confidential at one time, but not after they had passed into recorded history. In particular, a plan may be confidential while it is still being discussed and implemented, but when it has been acted on, with results that are visible to the world, its confidentiality is over. The five-year ‘rule of thumb’ referred to by Cockerill J at [42] is not a strict legal principle (certainly not in English law), and it has no application here.

Second, these criteria have to be applied scrupulously. It is not acceptable for the party giving disclosure to decide to err on the side of redactions and confidentiality, and then wait to see if any receiving party wishes to challenge its decisions.

To do so is not only inconsistent with the principle of open justice and the rules prescribed in the CPR, it has real consequences. It transfers the real decision-making burden to the receiving parties. It adds to the costs of those parties, and to the costs overall. In so far as it results in additional applications or interruptions to the trial, it leads to the loss of time. It thereby causes inconvenience to the court, and to other court users. These matters all have financial implications, which in an appropriate case ought to be reflected in the court’s approach to costs.

I do not know whether this is such a case. To what extent, if any, such consequences have been occasioned in this case, beyond the instances of the few specific documents that I have identified above or that I have ruled on in earlier interlocutory decisions, is something on which I will require further assistance from the parties. I look forward to receiving such assistance in due course, in their submissions on costs.

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