Redact or Not Redact, That Is the Question

Cotham School v Bristol County Council & Anor [2025] EWHC 1382 (Ch) is a blockbuster of a case, guaranteed to excite the passions of any English woman or man.  It concerns the status of a piece of land registered as a village green, the use of which as playing fields by a school is contested.  As the trial judge put it on 10 June 2025:

“Each side has tried its utmost to persuade the court that it is right. Each side has put in evidence and made arguments seeking to support a conclusion that, if it should not win, the consequences will be practically apocalyptic.”

You can almost hear the school song drifting over the roar of the burning torches and the clash of pitchforks.  But, you may be asking yourselves, “what has this to do with professional discipline?”

Tucked away at paragraphs 96 to 98 of the 110 page judgment, HHJ Paul Matthews, sitting as a Judge of the High Court, made the following observations in relation to the redaction of the trial bundles:

“I call attention to th[e] one matter which concerned me. This was that far too many of the documents in the bundle had been redacted, usually to remove names and other personal details of individuals. As a general proposition, this should not happen.”

The judge went on to say that:

“… in these modern times those who handle documents containing personal data (particularly in public sector occupations) are used to routinely redacting documents before allowing third parties to see them, because they do not wish to fall foul of data protection rules. But, in deciding a case like this, with events over many years to consider, and many people involved from different organisations, it makes the court’s job much more difficult if the identities of those sending or receiving letters or emails, or taking part in meetings, are anonymised from an excess of data protection zeal. I remind all parties (and indeed all readers of this judgment) that the data protection legislation contains wide exemptions for the use of personal data in legal proceedings, so that liability will not attach to the disclosure of personal data for the purposes of these proceedings: see eg the Data Protection Act 2018, section 15, Sch 2 paras 5 and 14.”

Further, given that:

• No special regime applies to the ordinary business of the Business and Property Courts (unlike the family courts where the interests and welfare of children is concerned);
• The case was not one where some special harm may have ensued from the disclosure of personal data, quite outside the data protection rules;
• Lawyers are well used to dealing with such cases, for example: by specific redaction (justified in advance); the non-provision of certain documents to the public; or, even the court sitting in private

“[t]here should be no such wholesale and general redaction of personal data as has taken place here.”

Section 15 of the Data Protection Act 2018 makes provision for exemptions as set out in the schedules. Paragraph 5 of Schedule 2 is entitled “[i]nformation required to be disclosed by law etc. or in connection with legal proceedings” and provides that:

“(3) The listed GDPR provisions do not apply to personal data where disclosure of the data—

(a)  is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings),

(b)  is necessary for the purpose of obtaining legal advice, or

(c)  is otherwise necessary for the purposes of establishing, exercising or defending legal rights,

 to the extent that the application of those provisions would prevent the controller from making the disclosure.”

Paragraph 14 provides that:

“(2) The listed GDPR provisions do not apply to personal data processed by—

(a)  an individual acting in a judicial capacity, or

(b)  a court or tribunal acting in its judicial capacity.

(3)  As regards personal data not falling within sub-paragraph (1) or (2), the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice judicial independence or judicial proceedings.”

No doubt we have all raised an eyebrow at overzealous redactions in hearing bundles, such that it is impossible to identify anyone who did anything at any time, regardless of whether they may have relevant evidence to give and need to be identifiable in order for that to be considered, let alone followed-up.

Armed with Cotham School v Bristol County Council, and the rallying cry, “as a general proposition, this should not happen!”, we might re-seize the commons.  Grab pitchforks and ready yourselves for a picnic on the village green (subject to the pupils and governors not staging a sit-in or a lock-out).