New Court Ruling over disclosure of documents in debt cases

[sidley]

Saw this in the Times today. I know it relates to small business loans, but could the judges ruling affect all debt cases where the debt company refuse or redact commercially sensitive documents in support of their case?

Sorry, if I'm breaking any copy write over this article.

sidley*

[jaguarsuk]

It would be interesting to see what the judge actually said in his ruling and whether that could apply to all cases of debts.

[sidley]

I have just found the Appeal Judges full reasoning it can be found here:


http://www.nabcustomersupportgroup.o...montoria--oak-

This is so far the most interesting part of the Judgement:

(ii)*The primary attack

1.The Emanuels’ primary position was more extreme. Through their counsel, the Emanuels contended that Promontoria Oaks failure to produce the Deed of Assignment in its original form meant that the claim had to fail, even if, on the face of it, the documents showed a good chain of title. In written submissions, the point was put thus:

12. The Emanuels have put in issue the validity and enforceability of the Deed of Assignment They have only agreed to the redacted copy of the Deed being included in the trial bundle without prejudice to that contention.

13.Promontoria suggest in their pleading that commercial sensitivity/confidentiality reasons have dictated the redactions they have made and they refuse to disclose any further documentation

14.The simple point here is that it is not good enough, when a challenge is made to the validity of a document, to seek to adduce a heavily redacted copy on grounds of alleged commercial confidentiality (confidential communications has never been a ground for claiming privilege: see commentary in The White Book, Vol 1 at 31.3.36). Furthermore, those grounds are not accepted by the Emanuels, and are not supported by the evidence that Promontoria have served.

15.The Emanuels are entitled to see the originals of all relevant documents which are challenged, without any redactions, yet Promontoria do not seek to produce such documents as an exhibit to the evidence of Mr Breen [the witness called by Promontoria Oak].

16. It follows their claim must fall at the first hurdle.

17.The court could make that determination at the outset or having heard evidence.

[jaguarsuk]

It certainly seems that it could apply, but in para 59 he basically says how debt purchasers can disclose and still protect commercial sensitivity.

...and it is for the disclosing party to come to the court to seek an order protecting confidence whilst ensuring the document is disclosed.

All that would achieve is they'll make the application and a defendant would be stuck with the cost, if like in this case it looks as though there is some flaw in the assignment chain I'd be more keen to try it.

[sidley]

jaguarsuk


...and it is for the disclosing party to come to the court to seek an order protecting confidence whilst ensuring the document is disclosed.[56]

[56] In competition and intellectual property cases the use of confidentiality rings is prevalent.

I wonder whether he was referring to the above as a reason for redaction or non disclosure