28 A submission had been made to his Honour that the documents in question did not contain information related to any issue in the proceedings. His Honour dealt with that at 616[31] as follows:
"[31] On the fourth ground of objection these reasons show my view that those representing the plaintiffs should have an opportunity to inspect the documents and to act on their own view of the relation of the documents to issues in the proceedings."
29 Air New Zealand also relied on the decision of Lindgren J in Wenkart and Holden v The Commissioner, Australian Federal Police (NG106 of 1995, 19 September 1995, unreported). It also relied on the decision of Rattee J in Pharaon v Bank of Credit and Commerce International SA (In Liquidation) [1998] 4 All ER 455.
30 In each case, the party objecting to inspection obtained an order that certain confidential material be masked (as Lindgren J put it) or redacted (as Rattee J put it). It is apparent, however, from the reasons of Lindgren J, that his Honour took the course that he did not because he thought that it was the usual course or that it was, in the circumstances, appropriate, but because, masked access having been offered, the applicants were prepared to start there. In other words, in the proceedings before his Honour, the person seeking production of documents had been offered limited and masked access and was prepared to commence its inspection on that basis. This is clear from the concluding paragraphs of his Honour's reasons where he noted that limited inspection, with potentially prejudicial material blacked out, would be afforded but that he:
"reserved liberty to the applicants, if they so saw fit, to apply for an order that upon an undertaking being given to the Court ... the material blacked out should be made available."
31 His Honour said that he took that course:
"so that the documents, ... with the blacked out material, could be produced for inspection without further delay and so that the matter might be progressed."
32 The form of the undertaking to which his Honour referred was that:
"The contents of the material blacked out and/or the effect of that material would not be revealed to anyone other than the legal advisers of the applicants and there would have to be an undertaking by them to the effect of the implied undertaking, which always obtains, that the material would not be used for any purpose other than the legitimate purposes of these proceedings."
33 It is apparent that his Honour's decision is not authority for the general proposition that, where documents contain commercially sensitive material that is or may be outside the scope of the asserted purpose, that material should always in some way be masked.
34 Pharaon was a special case. The party seeking production of the documents was an American corporation. The documents were required for litigation in the United States of America. The consequence of providing documents to that party for that purpose was described by Rattee J at 461:
"One other important factor is that it appears that under the relevant US law First American will be under no constraint at all as to what use it can make of documents which may be disclosed to it pursuant to the subpoena. Unlike the position in English law, it will not be limited to using those documents for the purposes of the litigation in which they were obtained. Late in the day, in the course of the hearing before me, Mr Rubin on behalf of First American proffered an undertaking that First American would not use documents disclosed to it pursuant to the subpoena other than for the purposes of the particular US litigation presently on foot, but subject to provisos to the effect that those documents could be disclosed by First American without limitation to the four remaining active defendants to its action in the United States, and to those defendants with whom settlement arrangements have been made by First American, under which First American would be obliged to make such documents available to those parties, and that First American would also be permitted to disclose the documents to US regulatory authorities with whom it may have entered into agreements obliging it to make such disclosure.
However, I am told and of course I accept, that under the relevant US law documents which are made available to First American or its lawyers pursuant to the subpoena must be made available by them to all other parties to the American litigation if those parties request such disclosure. Faced with that problem, First American again in the course of the hearing before me, offer to extend its undertaking to include an undertaking to make an application to the US court called a 'protective order', having the effect of limiting the use to which the documents could be put by parties to the proceedings. I, of course, have no means of knowing what the prospects of success of such an application would be. I have no evidence on the point. I am told by Mr Rubin on instructions that lawyers representing First American believe that such prospects would be good."
35 Against that background, his Lordship concluded that some restricted access should be given. He said at 465-466:
"However, on balance, I am satisfied that the public interest in making the documents relating to the alleged fraud in the acquisition of CCAH shares by BCCI available in the US proceedings does outweigh the public interest in preserving confidentiality as to those documents, provided that disclosure goes no further than is reasonably necessary to achieve the purpose of that public interest in disclosure. This means, in my judgment, that on the undertaking proffered by First American to make an application to the US court for a particular order, to which I have referred, being given to this court, Price Waterhouse UK should be at liberty to disclose, pursuant to the US subpoena, documents relating to purported loans made by BCCI companies to the record shareholders named in a list to be annexed to my order, which will be the list produced by Mr Rubin in the course of the hearing, and secured by shares in CCAH. However, despite the logistical difficulties involved in redaction, I am not satisfied that any public interest requires disclosure, so far as it can be avoided, of documentary material relating to other customers' affairs, that is to say persons other than the CCAH record shareholders set out in the list, merely because such material is included in a composite document, part of which relates to the CCAH loans and the CCAH record shareholders.
Therefore, in my judgment, the liberty to disclose documents relating to CCAH and CCAH loans must be subject to a proviso that in the case of documents so relating but also relating to other confidential affairs of persons other than the record shareholders, disclosure shall not be made of those documents without taking all reasonably practicable steps by a process of redaction to conceal such parts of the documents as relate to the affairs of other persons."
36 Clearly, the order that his Lordship made was a function of the special considerations that he had indicated. I do not regard Pharaon as authority for the proposition that, in the ordinary case and absent some special considerations, masked access only could be provided. In other words, I do not regard Pharaon as setting out any general principle.
37 The Fund relied on a number of decisions to show that, where the balancing exercise required production or access, considerations or commercial confidentiality could be sufficiently protected by making access available only to defined people and subject to undertakings (express or implied) or orders as to confidentiality. The decisions included Australian Broadcasting Commission v Parish (1980) 29 ALR 228; the decision in Maronis; Ex parte Fielder Gillespie [1984] 2 Qd R 339; and Conrock Limited v CSR Ltd (1990) 96 ALR 690.
38 It is, I think, sufficient to refer to the reasons of McPherson J in Fielder Gillespie. At 341, his Honour dealt with the question of confidentiality as follows:
"The remaining question is that of confidentiality. Confidentiality is not itself a valid basis for resisting inspection. Prima facie a party is entitled to production for inspection and copy of documents disclosed in the affidavit of documents unless some recognized claim of privilege is available and taken. Nevertheless, in cases such as this the courts have sought to strike a balance between the right to discovery for the purpose of the litigation and the interest in maintaining confidentiality in secret processes that may be used for purposes of competition: see Warner-Lambert Co. v. Glaxo Laboratories Ltd. [1975] R.P.C. 354, where the authorities are discussed. A practice has developed of permitting inspection by a specified person only, who has sometimes been an independent expert but more commonly a senior officer of the applicant party, on terms designed to restrict communication and the use (or abuse) of the information obtained by that inspection for purposes other than the litigation: see Warner-Lambert Co. v. Glaxo Laboratories Ltd. (supra); Centri-Spray Corp. v. Cera International Ltd. (1979) 101 D.L.R. (3d) 594. That is the course I propose to follow in the present case."
39 Air New Zealand did not suggest that restricted access and the imposition of appropriate conditions as to confidentiality would not be effective to prevent wider, let alone public, dissemination of the relevant material. It said simply that the material was confidential; that it was entitled to protect its confidence; and that protecting its confidence means, in the circumstances, that no one should have access. It may be noted, as I have said, that it appears that the defendants may already have had access.
40 In light of this approach, it is salient to bear in mind what Stephenson LJ said in Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97 at 106-107:
"In most cases, an undertaking is unnecessary because it is implied, as was pointed out in Alterskye v Scott where an undertaking was refused. In the remainder, an undertaking by the party himself or by his counsel or solicitor may be enough; but it seems to me that there is a very small hard core of cases where the undertaking is not enough and where the court may come to the conclusion that the party cannot be trusted not to misuse the information and so abuse the process of discovery. That is really what counsel for the defendants is maintaining in this case in support of the order under appeal; and in the form in which it is made, particularly that which relates to the hospital notes and medical reports, it seems to me that the order must be justified on that basis, or it must be revoked or modified."
41 In relation to the para 2 documents, I conclude that the Fund should have restricted access to all but two categories of documents.
42 The restriction to which I refer is that access, in the first instance, should be given only to the solicitors and counsel for the Fund on the basis of restrictions equivalent to those imposed by Bryson J in Maronis. If wider access is sought, then it may be the subject of further application to the Court if the parties are unable to agree.
43 The first category of exception, to which I referred, is that access should not be given to documents in respect of which there is a claim for legal professional privilege. The second category of restriction is that access should not be given to documents which, it is said, are appropriately confidential and do not bear at all on any issue in the proceedings.
44 In each category of exception, however, the solicitors for Air New Zealand must produce a schedule listing and describing the document in question and its general nature (without going into such detail as destroys the privilege or the confidentiality) so that the Fund can make an informed judgment whether to press for access. Again, if access to documents in either of those categories of exceptions is required, it may be the subject of further application.
45 I have reached this conclusion on the basis of my limited inspection of the documents. That inspection made it clear to me that in general the documents may relate or contain information relevant to the allegation made in paragraph 49 of the further amended summons. It made it clear that the documents may also, or alternatively, suggest a further process of enquiry. (That having been said, it should be noted that one of the documents I looked at - document 4 - appeared to be one that would fall within the second category of exception to which I have referred.)
46 That having been said, and given that there is no reason to fear the loss of confidentiality in the sense of public dissemination - ie, given that the restrictions that I have indicated must be taken to be effective - I think that the balancing exercise requires limited access. Equally, I think that balancing exercise requires the deferral of access in the two limited categories that I have described.
47 At first sight, the last aspect of this approach might seem to indicate some inconsistency, both with the general approach I have taken and what Bryson J said in Maronis at 616[31]. However, it is explicable on the basis that the issues advanced by paragraph 49 of the further amended summons are discrete. As part of the balancing exercise, I think that, prima facie, documents that cannot bear on those discrete issues should not be inspected in the first instance. Finally, the approach I have indicated still leaves the door, if not open then, at least, ajar to the Fund.
48 In relation to the transcripts, I think that the same balancing exercise indicates that access should be granted on the limited basis that I have indicated in respect to the paragraph 2 documents and subject to the same restrictions.
49 In neither case - transcripts nor paragraph 2 documents - do I think it is appropriate to permit masking. It may be assumed that the Fund may best know its own case and how to set about proving that case. I do not think it is for Air New Zealand to tell the Fund how to prove its case. Air New Zealand is not a party to these proceedings. I do not know how much of the pleadings or other material it has. However, I think it is highly likely, to the point of near certainty, that Air New Zealand is unlikely to be fully apprised of all the issues, so as to make fine judgments on a document that clearly contains some relevant material, that other parts of it might not be sufficiently relevant to justify providing them also to the Fund.
50 I therefore conclude that Air New Zealand's notice of motion should be dismissed with costs. As to costs, it was indicated yesterday, in the course of argument, when I said what I proposed to order, that there was nothing that Air New Zealand wished to put on the question of costs.
51 I direct the Fund to bring in short minutes of order to give effect to these reasons.