The Court of Appeal allowed an appeal by the plaintiff, GE Capital Corporate Finance Group, against the decision of Mr Justice Ferris, granting one of the defendants, Arthur Andersen & Co, permission to inspect the complete documents disclosed in the action.
Mark Barnes QC (Freshfields) for the plaintiff; David Unwin (Herbert Smith) for Andersens.
LORD JUSTICE HOFFMANN said that when serving their list of documents on Arthur Andersen & Co's solicitors, the plaintiff's solicitors drew attention to the fact that in some cases they had disclosed copy extracts of documents.
In relation to the documents concerned, there were no claims to privilege; the blanking out was solely on the ground of irrelevance.
The blanked-out passages contained details of financial transactions which did not relate to any question between the parties in the action: see Order 24, rule 2(1) of the Rules of the Supreme Court.
The judge took the view that if the document was relevant, the other party was prima facie entitled to see the whole of it. But it had long been the practice that a party was entitled to seal up or cover up parts of a document which he claimed to be irrelevant: see Bray's Digest of the Law of Discovery (2nd edn, 1910) at p55.
The oath of the party giving discovery was conclusive unless one could see from the documents produced that the claim of irrelevancy must be wrong: see Campagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, and Jones v Andrews (1888) 58 LT 601, per Cotton LJ.
The Peruvian Guano test was to be applied to the information contained in the covered-up part of the document regardless of its physical or grammatical relationship to the rest.
Relevant and irrelevant information might be contained in the same sentence. Provided the irrelevant part could be covered without destroying the sense of the rest or making it misleading, a party was permitted to do so.
LORD JUSTICE LEGGATT and LORD JUSTICE DILLON gave concurring judgments.Reuse content