In a reserved judgment handed down on 11 April 2022 in JSC Commercial Bank Privatbank v Kolomoisky [2022] EWHC 868 (Ch) Trower J held that the approach adopted by the first defendant’s solicitors to redaction of their client’s WhatsApp messages was or may have been premised on an incorrect approach to establishing the relevance of such messages. Trower J ordered a further review of all of the redactions applied to the 6000+ messages and directed that the first defendant instruct his solicitors to produce a schedule setting out headline details (for example dates, times, participants and a generic description of subject matter) in respect of each message in respect of which redaction was sought to be maintained.
The underlying dispute concerns allegations by the claimant, a bank wholly owned by the state of Ukraine, that first and second defendants (“D1” and “D2”) orchestrated the fraudulent misappropriation of over US$1.9 billion during their tenure as owners of the claimant.
The original disclosure orders were made by Mann J on 26 June 2020 under CPR PD 51U. The Issues for Disclosure included issues relating to (a) the control exercised by D1 and D2 over the claimant; (b) D1 and D2’s ownership and control of other entities and assets relevant to the claimant’s claim, for example the borrowers and the third to eighth defendants, in respect of which Model E disclosure was ordered; and (c) D1 and D2’s knowledge and involvement in the transactions relating to the claimant’s claim. Model D disclosure, including disclosure of narrative documents, was ordered in relation to other Issues for Disclosure and sub-issues falling within categories (a) and (c).
When D1’s WhatsApp chats were first disclosed in June 2021, they comprised 350 pages of chats with a total of c.6,209 messages, all but 272 of which had been redacted or partially redacted (at [15]). In a number of instances, it was not possible to identify the counterparty to the chat. D1’s solicitors confirmed that the redactions had been applied on the ground that the redacted data is irrelevant to any issue in the proceedings and confidential (such that they fell within para 16.1(1) of PD 51U). No specific explanation was provided as regards individuals messages: the material was said to be “information about unrelated commercial transactions and other commercial information unrelated to the issues in these proceedings” (at [15]).
Following correspondence, on 8 March 2022, D1’s solicitors wrote disclosing further information, both in relation to the identity of the counterparties to the WhatsApp messages and by increasing the total number of unredacted messages from 272 to 422 ([16]). D1’s solicitors described these as a small number of messages in respect of which they accepted that it was “at least arguable that they may be relevant to the issues for disclosure” ([16]). However, they said that they considered them unlikely to be of any particular significance to the issues in dispute in the proceedings ([16]). The claimant applied for an order that D1 produce all of the WhatsApp messages in unredacted form.
Trower J held that:
- There was an important distinction between identified Issues for Disclosure and “any issue in the proceedings”. This was a distinction which it appeared that D1’s solicitors may have misunderstood. It appeared likely that, when considering whether redactions ought to be applied to a document in accordance with ¶1 of PD51U, D1’s solicitors had done so by reference to the Issues for Disclosure. They were wrong to do so. Issues for Disclosure relate to the identification of relevant documents. Once a document has been identified as relevant a redaction can only be justified if the redacted text is both confidential and irrelevant to any issue in the proceedings (whether captured by the Issues for Disclosure or not) (see [8] and [19]).
- D1’s solicitors had taken an “unduly narrow” view of the scope of what was capable of being relevant to any issue in the proceedings for the purposes of para 16 of CPR PD 51U and this could be illustrated by the examples, upon which the claimant had relied, of material that had been unredacted following D1’s solicitors’ re-review of redactions (at [20]-[33]). For example, some of the material in a WhatsApp chat between D1 and a then-employee of the claimant which had been unredacted had a bearing on the ownership and control of an entity which was an issue in the proceedings and was one which D1’s solicitors would have known the claimant considered to be important.
- In light of D1’s solicitors’ approach, “there has been or may have been a failure adequately to comply with an order for extended disclosure” such that the jurisdiction to grant relief under ¶17 of PD 51U was engaged (at [34]). Trower J considered that it had not yet reached the stage whereby disclosure of all WhatsApp messages in unredacted form (whether subject to a ‘Hollander order’ style confidentiality club or otherwise) was justified, although his Lordship did not rule out such possibility (at [34]-[35]). Trower J considered that the appropriate relief was that D1’s solicitors carry out a full re-review of all redactions applied to WhatsApp messages and produce a schedule in respect of those messages in respect of which redactions were sought to be maintained setting out the names of the recipient, the date and time of the message and a generic description of the subject matter of the exchange without (at [38]).
- Such relief was proportionate in the particular circumstances of these proceedings, including most especially the very limited disclosure of documentation from D1’s own sources and the nature and complexity of the case (at [39]).
A copy of the judgment is available here.
On this application, the claimant was represented by Tim Akkouh QC and David Baker, instructed by Richard Lewis and Rebecca Wales of Hogan Lovells LLP. James Willan QC, Christopher Lloyd and Catherine Jung of Essex Court Chambers are also instructed by the claimant.
