Metadata and redactions - Important features of disclosure.

Co-Authors

Last week the Supreme Court of Gibraltar handed down an important judgment in the Gibtelecom Limited v Gibfibre Limited & Others (2022/ORD/096) proceedings (the “Judgment”).

The Claimant, represented at the hearing on 11 September 2025 by Samuel Marrache and Brian Caetano of Hassans was successful in its applications and in resisting the Defendants’ application.

Two parts of the Judgment which do not appear to feature in any previously published judgment in Gibraltar relate to the provision of metadata with disclosed documents and the application of improper redactions to the same. As disclosure in complex commercial litigation proceedings increasingly involves issues relating to these two matters, the Judgment contains helpful guidance for parties engaged in the disclosure of electronic documents in such proceedings.

Metadata is defined in the Civil Procedure Rules (“CPR”) as “data about data”. It is information which is embedded in documents such as the date of creation, author and file name of the same. Often times this information is crucial in order to understand the relevance of a document (e.g., if the date of creation for a particular document cannot be ascertained from its contents).

The Claimant had complained that circa 75% of the documents disclosed by the Defendants lacked metadata and requested this to be provided for all documents, or at the very least, for non-email documents. The Defendants sought to resist this application by submitting that the CPR did not oblige them to disclose metadata.

At paragraphs 8 to 10 of the Judgment, Happold J found in favour of the Claimant and ordered the Defendants to disclose metadata for all non-email documents. In accordance with CPR 31B PD paragraph 33 it was held that “absent good reason, metadata should be included when electronic documents are disclosed”. Although the wording of paragraph 33 is not the language of obligation, Happold J agreed with the Claimant’s submissions that the word “should” was exhortatory, meaning that the Defendants could not simply refuse to provide the requested metadata.

As for redactions, the Claimant complained of improper and inconsistent redactions in the Defendants’ disclosed documents. Although inconsistencies are to be expected when large review teams review thousands of documents, the Claimant complained of clearly relevant material being redacted (such as pricing information and the recipients of important emails). No bad faith was alleged against the Defendants in this respect.

Ramsey J’s well-known test for challenging redactions in Atos Consulting Limited v Avis Europe plc [2007] EWHC 323 (TCC) was relied on by the Claimant, to submit that the Court could properly order inspection of the challenged documents in these circumstances.

A nuance in these proceedings is the fact that in January 2025 Happold J had ordered the creation of a counsel and expert only Confidentiality Ring. This means that documents which contain Confidential Information may be disclosed into the Ring, to avoid the clients (which compete with each other) from seeing those same documents.

On this basis, counsel for the Claimant relied on Hollander’s Documentary Evidence 13th edition (quoted in WH Holding Ltd v E20 Stadium LLP [2018] EWHC 2578 (Ch) at [31]), which states, in part, that:

“It will often be sensible to ask for the lawyers to see the original unredacted documents on terms that the contents are not communicated to the client. There can surely be no objection to this in any case where the redaction is not based on privilege.”

This presented a practical solution to the issues experienced by the Claimant i.e., the Defendants could disclose all their redacted documents, with those redactions removed, into the protections of the Confidentiality Ring. This would allow the Claimant’s legal team and experts to review these, without the risk of confidential information being seen by the client.

Happold J then dismissed the Defendants’ application at paragraphs 23 to 30 of the Judgment.

In sum, the Judgment sets out important practical guidelines for practitioners. The first is that absent good reason, metadata should be provided with disclosed documents. The second, is that if redactions are not properly applied the party disclosing those documents may be forced to disclose all of its redacted documents, with these redactions removed, to the other party’s lawyers for them to review (so long as these redactions are not made on the grounds of privilege).

Gibtelecom Limited was represented by Samuel Marrache and Brian Caetano at the hearing.