Court proceedings, by their very nature, are public. Even documents filed in Court are publicly accessible. This creates a bit of a dilemma when documents are required to be filed in Court, but at the same time there may be confidential information involved in those documents.

How then can on go about to protect that confidential information?

This is especially important in cases involving intellectual property. It would be illogical for one to disclose confidential information in a suit that was commenced precisely to protect the same. Yet, the filing of the confidential information in Court would effectively be a disclosure.

One common way is to redact documents, and to explain to Court that the documents had to be redacted to preserve confidential information. Of course, one would naturally offer to show the document to the presiding Judge if there is any concern or doubt on the part of the Court as to whether the redaction was properly done.

However, in Tokai Corporation v DKSH Malaysia Sdn Bhd [2016] MLJU 621, the learned Wong Kian Kheong J (as his Lordship then was) took the view that a party cannot unilaterally redact a document without leave of Court first had and obtained under O 38 r 2(2) Rules of Court 2012.

His Lordship was of the view that the prior approval of the Court was necessary in order that the Court would have the opportunity to ensure that the redaction was made in good faith.

Nevertheless, it is also important to note that in Tokai’s case, the effect of failing to obtain a prior approval of Court to redact documents was not for the document to be excluded, but only that the opposing party:

  1. Cannot be deemed to have accepted that document; and
  2. Cannot have an adverse inference drawn against that party for failure to respond to the redacted document.

Whilst his Lordship expressed his views that there must be prior leave obtained to redact documents, there was no express prohibition against an application after the fact to allow and accept the redacted documents. Hence, parties finding themselves in a situation where redacted documents have already been submitted to Court may possibly seek an application to validate the same.

Written by: Chan Kheng Hoe ([email protected])

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