Suing on a redacted assignment

The Court of Appeal gave guidance on how judges should deal with cases in which the claimant needs to rely on an assignment of a debt in order to prove its title to sue as an assignee but had redacted, sometimes large, parts of the document of title on asserted grounds of irrelevance and confidentiality.

Debtors frequently raise these arguments as is reflected in the existence of four conjoined appeals about the same issues. The Court of Appeal in this case gave guidance to judges where there is a question of interpretation of a document:

  1. If the court is being asked a question of construction of a document the starting point is that the whole document should be before the court
  2. But it may be obvious that some parts, eg, details of third party transactions, can be omitted or blanked out but irrelevance alone is not enough for redaction, there must be some additional feature such as privacy or confidentiality
  3. Mere confidentiality alone can seldom, if ever, justify redaction – it would need to be completely irrelevant to the question of construction and the reasons for it must be clearly and fully articulated by the solicitor for the party seeking redaction
  4. But redactions on the ground of relevance should either be forbidden, or if permitted at all then should be convincingly justified and kept to an absolute minimum. It is for the court to decide questions of relevance.
  5. In a sentence, in all normal cases, the entire document should be placed before the court.

However, in the present cases the court was not actually being asked questions of construction arising from ambiguity or interpretation in a document, but whether each document before the court was sufficient to effect an assignment of the relevant debt on which the assignee could then sue the debtor.

On that point the court said that the ultimate question is always whether it is possible for the court to reach a safe conclusion on the effect of the document. If it can then it would be unfair on the party relying on the document for the court to refuse to give it effect.

The court also said that any argument about the extent of redaction should not be left to trial but raised at a case management conference or an interim application.

Promontoria (Oak) Ltd v Emanuel [2021] EWCA Civ 1682

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