Depp v News Group Newspapers Ltd & Anor

I have set out the background to this libel action in my previous judgments.

The application presently before me is by the Defendants for a declaration that the claim stands struck out because of the Claimant’s alleged failure to comply with my earlier ‘unless’ order for disclosure.

On 26^th February I heard a pre-trial review. At that stage the trial was due to commence on Monday 23^rd March 2020. Most of the hearing that day was occupied with an application by the Defendants for disclosure. In my judgment, handed down on 6^th March 2020 I agreed that the application succeeded to some extent. The same day I made what I described as the ‘disclosure order’.

Part of the Defendants’ application concerned a libel action which Mr Depp had brought against his ex-wife Amber Heard in the state of Virginia, USA. As I have previously explained, the articles which give rise to the present libel action concerned their marriage and what was alleged to be physical violence by Mr Depp against Ms Heard. The Defendants have alleged that their article was true, and they rely substantially on a number of witness statements from Ms Heard in support of that plea. The Virginia libel action arises out of an article which Ms Heard wrote for the Washington Post and which Mr Depp alleges contained similar imputations of physical violence by him against her.

In respect of the Virginia libel action, a complication was said to have arisen in that some of the documents were protected by an order of the Virginia Court in favour of Ms Heard. My order of 6^th March 2020 had to take account of this. The Claimant’s solicitors had previously been Brown Rudnick, but on 11^th February 2020 the Claimant instructed Schillings in their place.

My order of 6^th March 2020 included the following at paragraph 3:

Ms Heard gave her consent (on which paragraph 3 of the Disclosure Order was dependent) on 8^th March 2020.

On 10^th March 2020 the Claimant applied for an extension of time within which to comply with various parts of the Disclosure Order. On 10^th March 2020 I varied the Disclosure Order as follows.

On the present application, the Defendants accept that the Claimant made the witness statement required by paragraph 3(a) of the Disclosure Order and that Schillings made the witness statement required by paragraph 3(b) of that order, but, they submit, the disclosure which was made as a result of paragraph 3(c) of the Disclosure Order was incomplete.

The Defendants rely on the evidence of Jeffrey Smele, a partner in Simons Muirhead and Burton, the Defendants’ solicitors. Mr Smele explains that he has been in contact with Charlson Bredehoft Cohen and Brown (‘Charlson Bredehoft’) who are the US attorneys instructed by Ms Heard for the purpose of the Virginia libel proceedings.

Charlson Bredehoft have informed Mr Smele that, no later than 18^th February 2020 in the Virginia libel proceedings Mr Depp disclosed what is called ‘an extraction report’ which sets out, among other things, information regarding texts sent to and from the Claimant’s mobile phone.

Some of the entries from the extraction report were included in the disclosure made by the Claimant in response to paragraph 3(c) of my disclosure order, but not a series of texts between Nathan Holmes and the Claimant which Mr Smele has called ‘the Australian drug texts’. It is convenient for me to use that label, but I do so without, at this stage drawing any conclusion as to the significance of these text messages.

It is the Defendants’ contention that these text messages fell within CPR r.31.6 because they were documents adverse to the Claimant’s case and, to some extent, supported the Defendants’ case and, in consequence the Australian drug texts came within r.31.6(b)(i) and (ii). The extraction report had, as I have said, been produced in the Virginia libel proceedings sometime before 18^th February. Mr Wolanski QC for the Defendants submitted, without contradiction by Mr Sherborne for the Claimant, that they must have been in the Claimant’s possession, custody or control.

Consequently, the Defendants contend that the Claimant failed to make proper disclosure of the Virginia libel trial documents and, as a result of paragraph (10) of my order of 10^th March 2020, the claim is struck out.

Mr Sherborne’s contention in summary is that the Australian drugs texts were not disclosable under r.31.6, there has been no failure to comply with the 10^th March order and, therefore, the Defendants’ application should be refused.

That was the shape of the argument which I heard at the hearing on 25^th June 2020. However, Mr Sherborne intimated that, if I was against him and found that the Claimant was in breach of the order of 10^th March, the Claimant would expeditiously apply for relief from sanctions. The adjourned trial is due to start on 7^th July 2020. Plainly, any such application would need to be made very fast. Mr Sherborne would need to know whether his argument today had succeeded before the Claimant made such an application. I asked him what would be a reasonable time for the application notice to be served (at least in draft) together with any evidence in support. Mr Sherborne suggested 36 hours after the draft of this (reserved) judgment was distributed. Mr Wolanski did not object to that time scale which I also agree would be reasonable.

Rule 31.6 states,

Mr Sherborne relied on Shah v HSBC Private Bank Ltd [2011] EWCA Civ 1154 in which the Claimant was claiming compensation from the bank for its delay in executing certain transactions. The Bank’s position was that the delay was required by the Proceeds of Crime Act 2002 because it suspected money-laundering. The Claimant wanted to know the identity of the bank officials who had suspected moneylaundering. The bank had disclosed the nature of the information but had redacted the names of the officials. At first instance Coulson J. held that the names of the officials were disclosable but public interest immunity allowed the bank to conceal their names. The Court of Appeal concluded that the names were not disclosable under r.31.6 and the issue of public interest immunity did not therefore arise.

Importantly, the case is a reminder that the test for standard disclosure under the CPR is narrower than the rules relating to discovery under the Rules of the Supreme Court.

The Court quoted from Lord Woolf’s report which led to the CPR (at [32]) and which now appears in the commentary in the White Book at 31.6.3 (though, as the Court observed somewhat laconically, ‘without attributing its source’). Coulson J. had asked himself whether the names of the Bank employees were ‘relevant’. The Court of Appeal observed that the word ‘relevant’ does not feature in r.31.6. Since the CPR constituted a deliberate move away from earlier authorities (such as Companie Financiere et Commerciale v Peruvian Guano Co (1882) 11 QBD 55) it was dangerous to rely on authorities which pre-dated the CPR - see for instance [23]. Mr Sherborne submitted that the effect of Shah was that it was insufficient that a document may assist the opposing litigant: it must do so [28]-[29].

Mr Sherborne also argued that a party’s ‘case’ was to be derived from the pleadings rather than the witness statements. The essential issue in this case, he submitted, was whether Mr Depp had subjected Ms Heard to physical violence. The defence of truth on which the Defendants rely will turn on that question.

I did not understand Mr Wolanski to dispute these propositions of law, although he did comment that it was not necessary that the document in question conclusively proved the case of the party receiving disclosure. In this regard, I agree with Mr Wolanski. I note that the report of Lord Woolf described the second category of documents covered by the RSC (and which Lord Woolf intended should still be covered by the CPR) as,

The Re-Amended Defence pleads, as I have said, that the words complained of were true in the meaning that,

The third sentence of paragraph 8.a of the Re-Amended Defence pleads,

Particulars are then given of 14 incidents. These include alleged assaults of Ms Heard by the Claimant while they were in Australia in March 2015 – see Re-Amended Defence paragraphs 8.a.8-8.a.11 together with further details in the Confidential Schedule to the Re-Amended Defence. The Defendants allege that these incidents began on or around 3^rd March 2015. At 8.a.8 it is pleaded,

In his Re-Amended Reply the Claimant denies that he ever subjected Ms Heard to physical violence. He has never done more than grab her arms to restrain her from hitting him which, the Claimant says, she often did. He denies the third sentence of paragraph 8.a of the Re-Amended Defence (which I have quoted above) – see ReAmended Reply paragraph 2.2.

The Claimant responds specifically to the allegations that he assaulted Ms Heard in Australia. He admits that they travelled together to Australia in March 2015, but the allegations in paragraphs 8.a.8-8.a.11 are otherwise denied – see Re-Amended Reply paragraph 2.2H. In connection with drugs, the Claimant pleads at paragraph 2.2H4,

The Claimant pleads (see Re-Amended Reply paragraph 2.2H1) that the incident in which his finger was injured took place on 8^th March 2015 and was preceded by an argument with Ms Heard concerning his wish to enter into a post-nuptial agreement with her. The pleading says, ‘This caused Ms Heard to go into a prolonged and extreme rage.’

Although both Mr Wolanski and Mr Sherborne referred me to various passages in the witness statements of the Claimant and Ms Heard, I note that the White Book says at 31.6.3,

I turn to the Australian drug texts. These were all between the Claimant and a Nathan Holmes, whom Mr Smele describes as the Claimant’s assistant. The texts on which the Defendants rely were exchanged between Mr Holmes and the Claimant between 25^th February and 7^th March 2015.

Mr Smele exhibits to his witness statement the extraction report which shows, as well as the content of the texts, the date and time on which they were sent (and whether by Mr Holmes or by the Claimant), and the date and time on which they were read.

Mr Wolanski took me through the texts on which he relied for the proposition that these were either adverse to the Claimant’s case or supportive of the Defendants’ case. It is not possible to go through each of the texts individually, particularly as it is important for the draft of this judgment to be distributed as soon as possible in view of

Instead, it is sufficient for me to identify the reasons why Mr Wolanski submits that the texts ought to have been disclosed and selectively illustrate the points he seeks to make. I shall, of course, turn later to what Mr Sherborne had to say about them.

It was Mr Wolanski’s case that the texts show the Claimant asking Mr Holmes to provide him with MDMA pills. He gives the example of text 30 sent by the Claimant on 27^th February 2015 saying,

Mr Holmes quickly replies (text 31),

On 2^nd March 2015 the Claimant texts Mr Holmes asking,

Mr Holmes replied immediately (text 44),

This was immediately followed by text 45 in which Mr Holmes said, ‘I’m going to meet the man now you will have it when you get here.’ And text 46, in which Mr Holmes said, ‘Then I’m getting more in the morning’. One second later the Claimant texted ‘Go’.

However shortly after that in a series of texts (48-52) Mr Wolanski submitted, the Claimant appeared to be exasperated and impatient with Mr Holmes. In text 52 he said,

As part of what appears to be Mr Holmes’ attempt to placate the Claimant, he says at text 54,

Mr Holmes tries to apologise at text 72 and says he is sorry. The Claimant responds at text 73,

The Claimant appears to continue this theme at text 77 saying,

And in a series of texts (79-82) the Claimant says,

On 7^th March 2015 the Claimant texted Mr Holmes,

A little later and still on 7^th March the Claimant texted Mr Holmes (text 105),

Mr Wolanski submitted that these texts were adverse to the Claimant’s case on the pleadings and supportive of the Defendants’ case because:

Mr Sherborne submitted that none of the texts contradicted the Claimant’s pleaded case or, in terms, supported the case of the Defendants. Furthermore, if the disclosure obligation was as wide as the Defendants submitted, it would be disproportionate, given that the central issue in relation to the truth defence was whether the Claimant had beaten Ms Heard and none of the Australian drugs texts were directly concerned with that issue. Further, so far as the texts spoke of the Claimant trying to acquire cocaine, this was irrelevant since the Claimant’s alleged use of cocaine was no part of the Defendant’s pleaded case.

Mr Sherborne submitted the Claimant has not denied that he took drugs and that he did so and drank during their relationship. He refers me to the following in the Claimant’s 2^nd witness statement (his trial witness statement) which includes,

Mr Sherborne submitted that it could not be said that anything to do with drugs was disclosable under r.31.6. He also emphasised that the overriding objective meant that the obligation to make disclosure had to be considered through the prism of proportionality. The Shah case had emphasised that the obligation of disclosure was narrower under the CPR than it had been previously. He submitted that the texts between Mr Holmes and the Claimant did not bear on any of the issues on the pleadings. The texts may have shown that the Claimant was trying to acquire MDMA, but they did not show that he had succeeded. Still less did they show (as the Defendants allege) that he had a bag of MDMA pills with him and that this was the cause of the argument between the Claimant and Ms Heard. Given the Claimant’s past problems with drugs, it was not surprising that he was making inquiries about possible sources of drugs.

In my judgment the Defendants are right. The Australian drug texts were adverse to the Claimant’s pleaded case and / or were supportive of the Defendants’ pleaded case. i) I agree that the timing is significant. The exchanges with Mr Holmes began shortly before the alleged incidents in Australia. Even if the Claimant is correct about the date when he suffered injury to his finger, they continued up until 7^th March, i.e. the day before the date on which the Claimant says his finger was injured.

In reaching this decision, it has not been necessary for me to make any finding regarding the Defendants’ allegations as to the Claimant’s earlier non-compliance with his disclosure obligations. They were denied by the Claimant.

For all of these reasons I agree with the Defendants that the Claimant failed to comply fully with the obligation in paragraph 3(c) of my order of 6^th March 2020.

The Defendants have sought a declaration that the case is therefore struck out because of the provisions of paragraph 10 of my order of 10^th March 2020.

I am not going to make such a declaration at this stage since, as I have said, Mr Sherborne intimated that, if I was against the Claimant on the issue of whether there had been a breach of the disclosure obligation, the Claimant would wish to apply for relief against sanctions. The parties agreed that in circumstances where the trial was imminent it would be reasonable to require any such application to be served in draft, together with any evidence in support, no later than 36 hours after this judgment is distributed in advance. In the event that no such application is made within that time scale, I make it clear that the Defendants have permission to restore their application notice.

If the Claimant does apply for relief from sanctions, I will hear that application on Monday 29^th June 2020. If necessary, time will be abridged for me to do so. On Monday I shall also wish to deal with any other outstanding pre-trial matters.