|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Depp v News Group Newspapers Ltd & Ors  EWHC 1734 (QB) (02 July 2020)
Cite as:  EWHC 1734 (QB)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| John Christopher Depp II
|- and -
|News Group Newspapers Ltd.
Adam Wolanski QC and Clara Hamer (instructed by Simons Muirhead and Burton) for the Defendants
David Price QC (solicitor) for the Third Party Respondent
Hearing dates: 29th June 2020
Crown Copyright ©
Mr Justice Nicol :
Should the Claimant be allowed relief from sanctions?
'(1) On an application for relief from any sanction for failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application including the need –
(a) For litigation to be conducted efficiently and at proportionate cost; and
(b) To enforce compliance with rules, practice directions and orders....'
Denton Stage 1: Was the breach serious or significant?
Denton Stage 2: why the breach occurred.
i) I could not accept that the breach was solely the responsibility of Schillings. He commented that there was no witness statement from the Claimant himself in regard to how the default had occurred.
ii) Mr Wolanski also submitted that the Claimant had previously misled me at the pre-trial review hearing on 26th February 2020 regarding his possession of a certain recording of a conversation between him and Ms Heard.
iii) He also commented that the Claimant's US lawyers had recently threatened Ms Heard with sanctions for providing documents to the Defendants in the present proceedings (including the Australian drugs texts).
iv) In any event, as the White Book commented, a good reason for the default which required relief from sanctions was ordinarily something which was outside the control of the party in default. A mistake by the party's lawyers was not of that kind. Mr Wolanski submitted that, even if Ms Afia's explanation was correct, it was not a good reason.
The 3rd Denton stage
i) There was no reason to revisit the reasons why, on 10th March an 'unless order had been made. It was only in a rare case that the sanction previously stipulated would be departed from. In this case there had been multiple breaches of the 'unless' order.Mr Wolanski referred me to Global Torch Ltd v Apex Global Management Ltd (No2)  UKSC 64,  1 WLR 4495 where Lord Neuberger said at 'Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have.'That is also in line with one of the particular factors to which the Court must have particular regard- see r.3.9(1)(b) and Michael Wilson and Partners Ltd v Sinclair  EWCA Civ 774,  4 Costs LR 707 at [26(iii)]. Likewise in Sinclair v Dorsey and Whitney (Europe) LLP  EWHC 38888,  1 Costs LR 19 at  Popplewell J. spoke of it being a 'rare' case where the decision to impose an 'unless' order with its consequence of striking out in default should be revisited.
ii) Had the trial proceeded on 23rd March, the Defendants would not have had the Australian drugs texts. The Defendant had only found out about them recently when Ms Heard had alerted the Defendants to their existence. Because they were unaware of them, the Defendants would have been unable to challenge the Claimant's evidence regarding those matters.
iii) It was now clear, Mr Wolanski submitted, that the Claimant had misled the Court at the pre-trial review hearing on 26th February 2020 (This was Mr Wolanski's second point at the Denton stage 2)One of the issues raised at the Pre-Trial review concerned recordings of conversations which included Ms Heard. In turn that led to a debate as to whether the Claimant had any such recordings. Schillings had said he did not. Recently it has transpired that he did. This recording was referred to at the present hearing as 'Argument 2'. In an earlier witness statement (dated 21st February 2020) prepared for the hearing on 26th February, Ms Afia had said,'The Claimant does not hold and has never held any of these recordings.' Mr Wolanski commented that the point was repeated by Mr Sherborne in the course of his oral submissions, at a time when Mr Depp was present, as was one of his US lawyers, a Mr Adam Waldman. Since 12th June 2020 Ms Heard provided to the Defendants a document referred to as 'the extraction report'. That showed that the Claimant had had possession of the 'Argument 2 tape'. On 13th March 2020 the Claimant had disclosed as part of his response to my orders of 6th March and 10th March parts of the Extraction Report, but not the parts which showed that he had been in possession of a recording of 'Argument 2' and had had it since at least 18th February (the latest date by when it had been disclosed to Ms Heard in the Virginia proceedings).In her witness statement of 27th June Ms Afia accepted that the recording of 'Argument 2' was disclosable, but, she said, it had just been missed. She commented that 'our instructions were that the recordings were not held by the Claimant.'Ms Afia has made an 8th witness statement (dated 28th June 2020) in which she says, 'there was no intention to mislead the Defendants or the Court'. Mr Wolanski comments that the statement is ambiguous as to whose intention Ms Afia is referring and he repeats his observation that there is no witness statement on the matter of relief from sanctions from the Claimant himself. He submits that I should infer that the Claimant did intend to mislead the Court.In her 8th witness statement, Ms Afia also explains how certain texts were overlooked. She says that the Claimant's team used an electronic key word search, but these did not include the words 'fight', 'hit' or 'control'. Mr Wolanski submits that that is remarkable, given the nature of the disputes between the parties which leads to his comment that there can be no confidence that other relevant messages may also have been overlooked.
iv) The Claimant had threatened Ms Heard with repercussions in the Virginia proceedings for supplying the Australian drugs texts to the Defendants in these proceedings. The intimidation of Ms Heard has continued in the days leading up to the present hearing and only days before the expected start of the trial on 7th July 2020 (This was Mr Wolanski's third point at Denton stage 2).Mr Wolanski submits that the Defendants have only known about the deficiencies in the Claimant's disclosure because of the assistance they have received from Ms Heard. The discovery procedure in Virginia allowed either party to designate a document as 'confidential' in which case its use outside those proceedings was restricted. After the hearing on 25th June Ben Chew, who is one of the Claimant's US lawyers wrote to Ms Heard's US lawyers,'We understand that in London today counsel for the Sun tabloid represented to the Court there that Ms. Heard's American lawyers provided certain texts that Mr. Depp produced and marked CONFIDENTIAL pursuant to the Protective Order in the Fairfax case. We believe that such disclosure is an egregious violation of the Protective Order and we plan to seek appropriate relief from the Court in Fairfax.'Mr Wolanski submits that a letter in those terms sits uneasily with what Ms Afia said in her 8th witness statement, namely.'There has been no attempt to prevent the Defendants obtaining documents by Ms Heard, even if the provision of these documents is apparently in breach of US procedural law.'Mr Wolanski argues that the letter of Mr Chew was only the latest in a number of similar threats to Ms Heard by the Claimant's US lawyers.
v) The Defendants cannot now have a fair trial. Ms Afia's 7th and 8th witness statement show that the Claimant's legal team have been incompetent in applying the r.31.6 test. Important documents may have similarly been overlooked. The Claimant has admitted that a further message should have been disclosed. Unless the whole disclosure exercise was re-done, the Defendants could not have a fair trial, but there is simply insufficient time to do that before 7th July.
vi) The Claimant will have the opportunity to vindicate his reputation through the Virginia libel proceedings. That trial is due to start in January 2021. In that claim Mr Depp is the claimant and Ms Heard is the defendant. There will not therefore be in those proceedings the asymmetry of which the Claimant has complained in the English proceedings. Mr Wolanski told me that a Judge in Virginia has already ruled that Ms Heard's article in the Washington Post did refer to Mr Depp. The factual issues will be determined by a jury in Virginia, but that feature did not dissuade the Claimant from suing Ms Heard in Virginia. While jury trials were more common in defamation cases in England, it was never suggested that they provided an inadequate means of vindication.
vii) If the present trial goes ahead it will absorb vast resources. The Court Service has agreed to make 5 court-rooms available (because of the need to observe social distancing). The burden on the public purse and the displacement of resources which could otherwise be used for other cases is, therefore, particularly acute.
i) The claim is far advanced and the trial is imminent. Despite the breach which I have found and despite Mr Wolanski's submissions, I am not persuaded that the trial of the claim would be unfair.
ii) Ms Heard has provided assistance to the Defendants and has done so despite whatever may have been said by the Claimant's US lawyers. I agree that it is important that she is not subjected to sanctions in another jurisdiction for having done so. In the course of the hearing, Mr Sherborne offered an undertaking to that effect and it will be a necessary part of my decision that that is formalised in an undertaking to this Court.
iii) I agree that the 'unless' order which I made on 10th March was not because the Claimant had been recalcitrant but because of the imminence of the trial which was then due to start in only a few days' time. I cannot find that the breach which I have found was deliberate. Rather it was because of an erroneous view of the nature of the disclosure obligations in r.31.6. In all of those circumstances, I agree that the position which I face is not quite the same as in Global Torch and the other decisions relied on by Mr Wolanski and in those circumstances, while the breach was serious, there is scope for other considerations to play a more significant role in the assessment of what justice requires.
iv) I see some force in Mr Sherborne's objection that the Defendants' resistance to the present application has expanded beyond the breach which I have found. Of course r.3.9 requires the court to take into account all the circumstances of the case, but fairness to the Claimant requires him to have a proper opportunity (a) to answer the allegation of breach and (b) to have the Court determine whether that breach has been proved (if not admitted). Thus, I agree with Mr Sherborne that I should focus for the purposes of the present application on the breach which I have found proved (together with the additional text which the Claimant has agreed ought also to have been disclosed).
v) I also see force in Mr Sherborne's points that a reasoned decision (which I shall have to give after the trial) will be a vindication for whichever party is successful of a different order than a bald verdict of a jury. Of course, I mean no disrespect to the procedure adopted in Virginia. As Mr Wolanski commented, in the past juries commonly decided factual issues in libel trials in England. However, Parliament considered that the system should change and now it is usual for defamation actions to be tried by judge alone. The Claimant's choice to sue Ms Heard in Virginia as well as the Defendants in this jurisdiction does not demonstrate his indifference to the advantage which the present English system will give him (or the Defendants if they are the successful party at trial). This is not the type of case where the Claimant should be left to such recourse as he may have against his lawyers (assuming that he would have such a remedy).
vi) This trial will be unusually resource intensive. As Mr Sherborne submitted, this is a consequence of COVID-19. As it happens, the same pandemic has led the courts to favour where possible the use of technology to conduct hearings remotely. Somewhat ironically, there is not therefore quite the same competition for court resources that there would be in normal times and therefore the continuation of this trial will not necessarily be at the expense of other litigants and cases. Mr Sherborne argued that the demand on the court was independent of the Claimant's breach. Of course, the COVID-19 pandemic is not the result of the breach, though the breach has led to two quite extensive hearings and two reserved judgments.
vii) Finally, I have to decide this application in the present circumstances. The trial did not proceed on 23rd March and I am not persuaded that it is helpful for me to consider the counter-factual position if it had.
Should Ms Heard be ordered to make Third Party disclosure
'(3) The Court may make an order under this rule only where –
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs'
'[The Defendant's transcript includes Ms Heard saying "You can throw a punch but yet screaming's okay." Mr Depp considers that Ms Heard said: "You can't throw a punch but yet screaming's okay." That puts a different light on the exchange, and is more consistent with the context in which there is a contrast of two matters, namely punching and screaming. If that is what Ms Heard said, then it is consistent with the Claimant's case that Ms Heard was violent to him and he did not punch her.'