Action and redaction: equal and opposite?

For tytoc collie, finding a claimant called ABC
was literally a piece of cake

tytoc collie has seen some strange things in his time, but never a judgment quite like this. It's in the case of ABC Ltd v Y [2010] EWHC 3176 (Ch), in which Mr Justice Lewison -- one of the Patents Court judges for England and Wales -- gave judgment in the Chancery Division today.

The judgment is so heavily censored (or "redacted", as the text reads) that it's quite difficult to follow in places, and it's so full of Xs and Ys that it reads like an algebra textbook.  At the heart of the matter is an application by someone who was not a party to proceedings. As the judge put it:

"Between November 2006 and June 2008 proceedings were on foot in the Chancery Division. [X] was not a party to those proceedings. They were proceedings between five companies [redacted] and Mr [Y], in which the five companies sought injunctions against Mr [Y] restraining him from disclosing or misusing confidential information. Those proceedings resulted in at least three orders of judges of this Division, including the Chancellor, following hearings in private. During the course of the proceedings on 27 September 2007, at another hearing in private, Master Bowles made an order that, subject to further order, non-parties might not obtain documents on the court file. The proceedings were eventually compromised in June 2008. Under the terms of the compromise Mr [Y] submitted to an injunction in broad terms; and withdrew allegations made against the five companies and/or their directors, officers, members etc and in particular withdrew all allegations of improper conduct made in the High Court proceedings. Part of the compromise was a comprehensive confidentiality agreement. Following the compromise a consent order was made by Chief Master Winegarten on 25 June 2008. A redacted version of that order is in evidence. The order does not state that it was made at a hearing in private; and the body of the order does not direct that the hearing be in private. The order includes an undertaking by Mr [Y] to be bound by a permanent injunction preventing the use or disclosure of confidential information, which is defined in very wide terms. It also included an undertaking by Mr [Y] that he had deleted copies of confidential information from all electronic or reusable media (including mobile phones and handheld computer devices). The order recited that the parties had "agreed to the terms set out in the Schedule hereto (which Schedule is confidential and therefore not to be filed at court)". The operative part of the order included an order that Master Bowles' order relating to the sealing of the court file be made permanent.

[X] has now applied for permission to have copies of documents on the court file. [Redacted]
The ground of the application, according to the application notice, is that:

"… the documents are required in connection with other related ongoing proceedings [redacted].""

Lewison J refused the application with respect to all documents save Master Winegarten's order.  In the course of doing so, he reviewed the principles of open justice as well as Article 6 of the European Convention on Human Rights ("In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice"), the need to balance that provision against the entitlement to privacy under Article 8 of the same Convention and the extent to which publicity/privacy applies to interim orders.

It has been a big year for big confidentiality cases, says the Kat, who had his work cut out in trying to lick
Imerman v Tchenguiz and others [2010] EWCA Civ 908 into shape (see IPKat posting here) and is somewhat reminded of it now.  Then there was that spat over the identity of The Stig ...

ABC here and here
X factor here
Y chromosomes here