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Ennis Property Finance Limited v Thompson & Another

February 2018

I refer to the recently reported case of Ennis Property Finance Limited v Thompson & Another which involved a point of law relating to disclosure of documents.
 
The facts of this particular case are that Ennis purchased a debt from Mr and Mrs Thompson’s bank and was seeking to enforce that debt against Mr and Mrs Thompson.
 
However, the principles of this case could apply to any type of litigation. 
 
In, this particular case Ennis in the course of the disclosure process under the Court Rules, disclosed to Mr and Mrs Thompson certain documents that contained redacted material. In other words, they disclosed the documents but hid some of the contents.
 
Mr and Mrs Thompson applied to the Court for the whole complete documents to be disclosed. Ennis argued that they were entitled to hide certain material because it contained commercially sensitive information. Mr and Mrs Thompson argued that unless they were permitted to see the concealed material, they would not know whether that material afforded Mr and Mrs Thompson any support for their defence of the claim.
 
The Judge in this case found that:-

  1. The rules provided that the documents had to be disclosed but this did not mean that all of the information in the documents had to be disclosed;

  2. There had to be a balance struck between confidentiality of certain material on the one hand and the duty to disclose on the other;

  3. On the facts of this particular case, the material redacted did not adversely affect Ennis’ case or support Mr and Mrs Thompson’s case.

The last point is probably the most important. These cases are fact specific. Where documents are produced with some elements concealed, how can the receiving party know whether the concealed material will help their case or not without having to trust the disclosing party?
 
Should the onus be on the disclosing party to ask the Court for permission to redact material that they do not want to disclose, rather than on the receiving party to have to apply to the Court to compel the disclosing party to provide the redacted material?

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