Redactions and Waiver of Privilege: High Court Provides Guidance

By on 2023-10-09

The long-running battle between the Serious Fraud Office (SFO) and Eurasian Natural Resources Corporation (ENRC) has hit the headlines again.  The most recent Judgment (which can be found here) concerns ENRC’s challenge to certain redactions to a report disclosed by the SFO.

The report in question (the Byrne Report) set out the SFO’s findings following an investigation into allegations that employees of the SFO improperly leaked sensitive information acquired in the course of its investigation into ENRC to journalists and other third parties.  The SFO disclosed the Byrne Report to ENRC, but with redactions made to it on the basis of three distinct grounds:

  • Privilege;
  • Irrelevance and confidentiality; and
  • Public interest immunity (PII), as certified by the then director of the SFO.

ENRC made an application to challenge the redactions on each of these grounds, and the High Court considered these in turn.


ENRC made two substantive arguments regarding the redactions made on the basis of privilege.  ENRC argued that either the High Court should inspect the redacted material to determine whether privilege had been properly claimed, or, alternatively, the SFO should be ordered to provide an additional explanation for the basis on which it asserted the privilege claimed, above the explanation that it had already provided in accordance with Practice Direction 57AD (PD57AD).

Application for Inspection

It was common ground that the Court may inspect documents if “necessary” to determine whether the privilege claimed exists (see further, paragraph 14.3 of PD57AD), and the High Court cited Sir Geoffrey Vos C’s (as he then was) Judgment in UTB LLC v Sheffield United Ltd and others [2019] EWHC 914 in this regard.

Nevertheless, the High Court rejected ENRC’s application, noting that, while the Byrne Report is a single document and the number of challenged redactions on the grounds of privilege are limited, “this is not of itself sufficient to warrant an inspection of a document absent other factors which tend to support inspection” (Judgment, paragraph 54).  The Court noted that it had to be “cautious and mindful of the danger of looking at documents out of context at the interlocutory stage”, and that “the nature of the challenges raised in this case would … require the Court to have knowledge of the context which as referred to above, would probably not be apparent merely by reading the relevant sections in the Byrne Report in order to assess the claim to privilege”.  Accordingly, the Court ruled that it would not be necessary or desirable to inspect the redactions to determine whether privileged had rightly been claimed.

Application for an Additional Explanation

As noted above, ENRC applied in the alternative for an order requiring the SFO to give an additional explanation of the basis on which it asserted privilege over redacted passages, so that it could “understand” the SFO’s position “and potentially come back to court to challenge again”.  ENRC sought “a description of the general nature or purpose of the information (and its corresponding relevance to the reasoning of the Byrne Report)” (Judgment, paragraph 57).

Paragraph 16.2 of PD57AD requires any redaction to be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process.

The Court noted that what is ordinarily required under paragraph 16.2 is a list of documents which have been redacted, which identifies for each the reason for the redaction.  The SFO had supplied a redacted copy of the Byrne Report, with codes indicating whether redactions had been applied for privilege or for confidential and irrelevant information.  For each of the privileged redactions, the SFO confirmed that it asserted litigation privilege arising from its criminal investigations into ENRC.

The Court rejected ENRC’s application, commenting that it is “difficult to see” how the explanations sought by ENRC “could be provided without defeating the very claim to privilege as it would in all likelihood require the SFO in effect to disclose the substance of the communication” (Judgment, paragraph 65).

Irrelevance and Confidentiality

ENRC also challenged redactions that had been applied for irrelevance and confidentiality, arguing that the information in question was likely to be relevant.

The High Court decided that, in determining relevance, the SFO had applied the test too narrowly; it had considered whether the material was relevant to the formal List of Issues for Disclosure, as opposed to whether the material was relevant to any point in issue between the parties.  The Court held that this was an error – material can only be redacted if it is not relevant to any point in issue between the parties, whether that be an issue in the List of Issues for Disclosure or not.  However, rather than the Court conducting a review of the redacted material at the interlocutory stage, the Court directed that the SFO’s lawyers conduct a further review of the redactions on the basis of irrelevance and confidentiality in light of the Court’s Judgment.


The SFO also applied redactions over the names of human sources who had provided information in connection with its criminal investigation on the basis of PII.  The High Court was satisfied that there was a public interest in protecting the identities of these confidential sources, which outweighed the public interest in the administration of justice.  The Court accordingly rejected ENRC’s application.

Key Takeaways

The three key points of interest arising from this Judgment are that:

  • The Court will generally take a cautious approach to exercising its discretion to inspect documents to determine whether the redactions had been properly applied;
  • The Court will not require a party to explain the basis on which material is redacted in such detail that it would defeat a claim to privilege; and
  • Material can only be redacted for irrelevance if it is not relevant to any point in issue between the parties, whether or not that issue forms part of the List of Issues for Disclosure.
Tags: Privilege
Harry Denlegh-Maxwell
Harry Denlegh-Maxwell focuses his practice on international commercial litigation and arbitration. He advises clients in complex, high-value, multi-jurisdictional disputes, from providing pre-dispute strategic advice, including on dispute avoidance and litigation risk, through to appeal. Harry counsels clients from a range of sectors including financial services, technology and life sciences. Harry also represents parties in significant competition litigation proceedings.




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