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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 505 (QB)
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QUEEN'S BENCH DIVISION
Media and Communications list
Strand, London, WC2A 2LL
B e f o r e :
| John Christopher Depp II
|- and -
|News Group Newspapers Ltd
Sasha Wass QC, Adam Wolanski QC and Clara Hamer (instructed by Simons Muirhead & Burton LLP) for the Defendants
Hearing date: 26th February 2020
Crown Copyright ©
Mr Justice Nicol :
'the Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing court restraining order; and for that reason is not fit to work in the film industry.'
Disclosure to date
'(6) A disclosure statement is a statement made by the party disclosing the documents –
(a) setting out the extent of the search that has been made to locate the documents which he is required to disclose;
(b) certifying that he understands the duty to disclose documents; and
(c) certifying that to the best of his knowledge he has carried out that duty.
(7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also –
(a) identify the person making the statement; and
(b) explain why he is considered an appropriate person to make the statement.'
'If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement (whether the disclosing party or, in a case to which r.31.10(7) applies, some other person ) understands the duty of disclosure under Part 31.'
'The purpose of the rule is to bring home to each party his or her individual responsibility for giving standard disclosure. Except to the extent permitted by the rules, it requires the party himself to make the disclosure statement. This clearly has not happened. The petitioners are entitled to complain that it is not. It is not a mere technicality.'
'I certify that I understand the duty of disclosure and to the best of my knowledge the Claimant has carried out that duty. I further certify that the list of documents set out in or attached to this form, is a complete list of all the documents which are or have been in the Claimant's control and which he is obliged under the order to disclose.'
The Defendants' application for disclosure
Audio recordings of conversations between the Claimant and Ms Heard
'It's Adam Waldman writing.
When we last met, you said "amber heard would have to be gone girl" for her abuse allegations to be false. One audio tape alone (plus frankly a mountain of other evidence) has shown her to be so. There are more tapes to come. I assume you were blind sided by these tapes, which Ms Heard has admitted she possesses, because she didn't provide them to you.
If you would like to discuss a way out of the morass for your client, please call me [and a phone number was added].'
i) Mr Waldman received two audio recordings on 27th January 2020.
ii) He did not possess them prior to that.
iii) He received only those two recordings, not others.
iv) The first recording, if not both, was made by Ms Heard.
v) The Claimant does not hold and has never held any of these recordings.
vi) The two audio tapes were disclosed to the Defendants on 20th February 2020.
vii) Ms Afia understands that Ms Heard's legal representatives have confirmed that they hold the tapes and, therefore, so far as there are any others they are in the possession or control of Ms Heard who has been providing evidence to the Defendants. There is therefore no purpose in requiring the Claimant to disclose them (even if he had any others).
i) The first article in the Mail Online referred to a 'series of taped conversations.'
ii) Later in the article it is said, 'It is understood there are several more tapes out there, each promising further bombshells as the former lovers trade blood-curdling allegations of domestic violence in a civil defamation case brought last year by Depp.'
iii) Still later in the first article it is said, 'Amber Heard recorded multiple conversations between her and Johnny Depp. Depp's attorney Adam Waldman told DailyMail.com in statement. "The tapes containing Amber Heard's chilling confessions of violence further expose and destroy her abuse hoax"'.
iv) The second article said, 'It's understood that she [Amber Heard] and Depp routinely recorded conversations consensually during the breakdown of their marriage, paving the way for yet more bombshell recordings to emerge.'
v) Later in the second article it was said that the tape had been provided to Ms Heard's legal team, suggesting, Mr Wolanski submitted, that it had been unnecessary for the paper to supply Mr Waldman with the tape because he was their source.
vi) Ms Afia's witness statement needs to be read carefully for its limits. Sub-paragraphs (i), (ii) and (iii) in paragraph 22 above concern Mr Waldman. We are told that he received the two recordings on 27th January 2020, and he did not have those recordings prior to that date. We are not told whether he has received any subsequently. Sub-paragraph (v) is referring to the Claimant. We are told he does not hold and has never held any of these recordings. Mr Wolanski asks me to note that 'these' recordings refer to the two audio tapes which have been disclosed. Ms Afia's witness statement is silent as to whether the Claimant (as opposed to Mr Waldman) has any further tapes. There is no witness statement from the Claimant himself on this topic.
vii) Ms Afia exhibits Schillings' third letter to SMB of 20th February 2020 in which Schillings say, 'For the avoidance of doubt, our client does not have (and has never had) the two tapes in his personal possession.' The reference to 'personal possession' must be, Mr Wolanski submits, a contrast to documents which are within his control and to which the duty of disclosure extends (see CPR r.31.8), so there is a further gap in the evidence from the Claimant as to whether other tapes may be within the Claimant's control if not in his personal possession.
viii) Ms Afia's reference to Ms Heard having access to the tapes is nothing to the point. While she has provided a witness statement which the Defendants have served, she is not a party to the litigation. Accordingly, she does not, but the Claimant does, have disclosure duties.
i) The two tapes referred to in the Mail Online articles had been disclosed.
ii) Whether or not there were other tapes 'out there' was immaterial. The Defendants had to show reasonable grounds for believing that the Claimant had them in his control. The Defendants could not do so.
iii) Nowhere on the tapes that have been found does the Claimant admit to hitting Ms Heard.
iv) In addition, disclosure would only be ordered if it was necessary in the particular case (see for instance White Book 2019 paragraph 31.0.1). The overriding objective in CPR r.1.1 also requires the Court to consider the proportionate cost of any case management direction. Since the Defendants could get these tapes (if such exist) from their witness, Ms Heard, it is neither necessary nor proportionate to require the Claimant to disclose them.
v) In any case the draft order is far too wide since it seeks disclosure of all recordings which include the voice of Amber Heard (whether or not they also include the voice of the Claimant) and irrespective of the topic on which she is speaking.
i) I agree with him that it is relevant that the articles in Mail Online speak of 'tapes' in the plural as a 'series' of conversations, since that gives grounds to believe that what has so far been disclosed may not be the entirety of the relevant tapes which exist.
ii) Mr Sherborne is, of course, right that it is insufficient for the Defendants to show that there are grounds to believe that there are further tapes 'out there': they must show that there are grounds to believe that there are such tapes within the Claimant's control. However, in my view, Mr Wolanski has overcome that hurdle. After all, the recordings were in part apparently of conversations between the Claimant and Ms Heard. It was also Mr Waldman, the Claimant's American lawyer (or one of them), who came into possession of two of the tapes. I am also persuaded by Mr Wolanski's submissions that the evidence on the Claimant's behalf does not satisfactorily address the matter.
iii) I also agree with Mr Wolanski that it is nothing to the point that the Defendants may have (through Ms Heard) an alternative route to obtaining these tapes. She is not a party to this litigation and cannot be compelled to provide them. The Claimant is a party to the litigation and, in accordance with the order of Master McCloud, it is his duty to provide disclosure.
iv) As Mr Wolanski was inclined to agree in reply, the order as presently drafted is too wide. It cannot extend beyond tapes which are germane to the issues in the case. Mr Sherborne is right that the draft order would require the Claimant to disclose tapes whether or not that was the case, but this could be addressed by inserting into paragraph 1(a) of the draft order wording on the lines of 'so far as required by CPR r.31.6'.
v) I also do not see the justification for subparagraph b of the draft order ('stating when the recording came into existence and by what means they came into existence'), nor for subparagraph c ('stating when the Claimant first came into possession or control of the recordings').
vi) The duties on standard disclosure include the duty to disclose documents on which [the party making disclosure] relies – see CPR r.31.6(a) and so it is no complete answer that the tapes which Mr Waldman obtained assist the Claimant's case, rather than the Defendants'.
vii) Given the approaching trial, there is an urgency to this process, but the timings in the draft order for paragraph 1(a) and 2 were, presumably, based on a decision being given at the hearing. There will need to be some adjustment in view of the fact that this is a reserved judgment.
i) A text message from the Claimant to his friend Paul Bettany on 6th November 2013 saying, 'Let's burn Amber!!!'
ii) Another text message from the Claimant to Mr Bettany on 6th November 2013, saying, 'Let's drown her before we burn her!!! I'll fuck her burnt corpse afterwards to make sure she's dead.'
iii) Another text from the Claimant to Mr Bettany on 30th May 2014 saying, 'I'm gonna properly stop the booze thing, darling... Drank all night before I picked Amber up to fly to L.A. this past Sunday... Ugly, mate...No food for days ... Powders... Half a bottle of whiskey, a thousand red bull and vodkas, pills. 2 bottles of Champers on plane and what do you get.... ??? An angry aggro Injun in a fuckin' blackout, screaming obscenities and insulting any fuck who gets near... I'm done. I am admittedly too fucked in the head to spray my rage at the one I love.. For little reason as well I'm too old to be that guy But pills are fine!!!'
'The Claimant subsequently sent Ms Heard a text message referring to that evening as a "disco bloodbath" and a "hideous moment"'.
In the Re-Amended Reply paragraph 2.2B this is said,
'As to the seventh sentence: it is admitted that the Claimant had an exchange of texts with Ms Heard on 12th March 2013 containing the words quoted therein. The words were used to placate Ms Heard; it is denied that the texts relate to any alleged physical abuse of Ms Heard (which is denied).'
'The Claimant texted Whitney Heard [Ms Heard's sister] on 21 May 2016 at 7.30pm in response to a text he received from her at 7.15pm suggesting his arrival may have been later than 7.15pm.'.
The Defendants comment that this exchange of texts has not been produced despite their request. They wish the Claimant to explain personally what steps have been taken to track down these missing texts.
i) I respectfully echo and endorse what Blackburne J. said about the importance of the disclosure statement and the need for it to be signed and made by the litigant himself or herself (if an individual and if the qualification in the Practice Direction does not apply). Brown Rudnick were not entitled to amend and make the disclosure statement in the way that they did in September 2019. However, the Claimant has now provided a disclosure statement on 9th January 2020.
ii) Mr Sherborne did not seek to dispute that the three texts from the Claimant to Paul Bettany should have been disclosed or that the Defendants were wrong to infer that Brown Rudnick had accepted that they were disclosable. It is not therefore necessary for me to express a view, but I can well understand why the Claimant did not challenge Mr Wolanski on this issue.
iii) I was unimpressed with Mr Wolanski's reliance on the texts which had been mentioned in the pleadings but not produced on request.a) CPR r.31.14(1)(a) provides that,'A party may inspect a document mentioned in (a) a statement of case.'b) But, as Gross LJ said in National Crime Agency v Abacha  EWCA Civ 760 at , the test of 'proportionality' still applied and,'In determining the issue of proportionality, a Court would very likely have regard to whether inspection of the documents was necessary for the fair disposal of the application or action.'c) The words used in the text mentioned in paragraph 8.a.2 of the Re-Amended Defence are admitted. The Claimant in his Re-Amended Reply alleges that they were used for a particular purpose. He can, no doubt give evidence about his purpose at the trial, but, since the wording of the text is admitted, the resolution of that issue is not going to be assisted by production of the text itself. In my view, therefore inspection of that text is not necessary for the fair disposal of the action and an order for its inspection would not therefore be proportionate.d) That is independent of the Claimant's apparent inability to find the text.e) The text in paragraph 2.8.2 of the Re-Amended Reply appears to concern the precise time of the Claimant's arrival at the apartment in South Broadway. That seems to me a relatively minor matter in this action. Thus, quite apart from the Claimant's apparent inability to find the text, I would have regarded it as disproportionate to order inspection of it.f) I shall not, therefore order any further inspection or disclosure regarding the 'missing text messages'.
Papers from the Depp/Heard divorce proceedings (Depp v Heard (BD 641052))
Mr Wolanski gives an example. In paragraph 8.a.5 of the draft Re-Amended Defence the Defendants rely on an incident in or around 17th August 2014 when it is said that the Claimant and Ms Heard travelled to the Bahamas to try to help him reduce his dependency on prescription painkillers and other drugs. The Defendants plead that during the trip, the Claimant had several manic episodes in the course of which he assaulted Ms Heard. The Claimant has responded in the draft Re-Amended Reply paragraph 2.2E. In summary he admits the trip took place for the purpose of curing his dependence on painkillers, not other drugs. He accepts the process was painful, but denies he assaulted Ms Heard. Further text messages between Ms Heard and Debbie were disclosed by the Claimant on 27th January 2020. These messages include a message from Ms Heard to Debbie,
'He's manic. Full-on flipping out. Says he wants to quit. Give up. Not to call you guys. Etc. I just have him the rest of the meds. Just now.'
Mr Wolanski submits that these were disclosable by the Claimant since one of the issues in the case concerns the Claimant's mental state. In her witness statement, Ms Afia says that, since the Defendants now have these text messages from Ms Heard, it is neither reasonable nor proportionate to require the Claimant to produce them. It is also safe to assume that, if there are any other relevant documents from the divorce proceedings, Ms Heard will also provide them.
'I am instructed that the court reporter in the divorce proceedings maintains the record and exhibits in those proceedings. Brown Rudnick made requests from the reporting agency for the records requested by the Defendants. The reporter requested a signed authorisation from the Claimant, which I am instructed he gave. The reporter refused to provide the records on the basis that it is only the lawyers on record for the divorce proceedings who can obtain them.'
i) Just because documents were listed in Ms Heard's Exhibit list, does not mean that the Claimant received them. Mr Sherborne asks me to note that the list has two columns, 'offered' and 'admitted'. Neither column was marked for any of the documents listed.
ii) He relies as well on Ms Afia's witness statement.
iii) He told me on instructions, though this was not in evidence, that the lawyers whom Mr Depp instructed for the purpose of the divorce proceedings no longer act for him and that was why they had not been asked.
iv) He again submits that Ms Heard is not in the position of a normal witness. Given her centrality to the Defendants' case, it was reasonable to make the assumption to which Ms Afia referred and, in those circumstances, it was not reasonable or proportionate to require the Claimant to make further disclosure.
i) I agree with Mr Wolanski that the documents from the US divorce proceedings which were exhibited in those proceedings are within the Claimant's 'control' since it appears that he has or had the right to possess them or to take copies of them. The explanation as to why the Claimant has not made a request of his American divorce lawyers is not in evidence, but in any case, it does not persuade me that the documents in question are no longer within his control for the purposes of the CPR.
ii) I also agree that these are likely to be relevant to the issues in the present proceedings given that Ms Heard's accusations of assaults appear to feature in both.
iii) For the reasons which I have given previously, it is proportionate and reasonable to make an order for further disclosure, notwithstanding that the documents (or some of them) may reach the Defendants by the alternative route of Ms Heard's voluntary co-operation.
iv) I agree that the structure of the draft order paragraph 6 is appropriate, although the timings will have to be adjusted.
Documents from the US defamation proceedings (Depp v Heard (CL-2019 0002911))
i) Currently, I agree with Mr Sherborne that the documents subject to the protective order are not within the Claimant's control. They are not in his physical possession. No evidence has been given that he has a right to possess them or to inspect or take copies of them (at least not for the purposes of passing them on to the Defendants).
ii) I also agree with Mr Sherborne that, since Ms Heard is due to be a witness for the Defendants, it would not be reasonable or proportionate to require him to seek her consent to the disclosure to the Defendants. However, if the Defendants were to obtain an appropriate consent from Ms Heard the position would change. Then the protective order would be no obstacle to disclosure. Given the imminence of the trial, such a consent would have to be provided expeditiously or again it would not be reasonable or proportionate to require the Claimant to make this disclosure, but, if it is provided quickly, then I agree with Mr Wolanski that the Claimant should be required to make it.
iii) The Defendants have not persuaded me that there are other documents (that is, apart from those which the Claimant says are covered by the protective order) which are with r.31.6 but which the Claimant has failed to disclose.
'A person who wishes to claim that he has a right or duty to withhold inspection of a document or part of a document, must state in writing –
(a) That he has such a right or duty; and
(b) the grounds on which he claims the right or duty.'
Rule 31.19(4) then says that the statement referred to in paragraph (3) must be made in the list in which the document is disclosed or, if there is no list, to the person wishing to inspect the document.
Mr Charalambous drew attention to r.31.19(3) in his witness statement and SMB's letter of 17th January 2020 which had complained about the absence of an explanation for the redactions.
i) I agree with Mr Sherborne that it is for the Defendants to show why it may be said that disclosure so far has been deficient. That will take account of the documents provided in the less redacted form from Dr Kipper. Thus, if initial efforts at disclosure were incomplete, but they have subsequently been made good, the Defendants will not have succeeded.
ii) However, I agree with Mr Wolanski that, on the face of it, the Claimant would have, at least, the right to call for copies of his medical records. In the circumstances of this case I consider that the Defendants are entitled to require the Claimant to provide more detail than he has as to what steps he has undertaken to obtain his medical records and to exhibit the correspondence concerned. His letters must include such consent as is required by any relevant US or State law for the medical professional concerned to provide the records concerned (including, if necessary, for the purpose of passing to the Defendants any which come within r.31.6). There is some reference in the witness statements to a 'HIPAA authorisation'. In my view this requirement would be reasonable and proportionate.
iii) Mr Wolanski is, of course, right to say that privacy or confidentiality (privilege aside) are not good reasons to refuse to disclose relevant documents in accordance with r.31.6, but where medical records are concerned, the competing claims of privacy and confidentiality mean that particular care is needed to limit disclosure obligations to those which do meet the tests in r.31.6.
iv) In my view the circumstances are not such as to make it reasonable and proportionate to require Schillings to repeat the disclosure exercise so far as medical records are concerned. But, if further documents are produced by any of the medical professionals whom the Claimant has consulted about relevant matters, Schillings will no doubt advise their client as to which of them are disclosable.
v) In addition, so far as the Claimant maintains that redactions of the medical records are appropriate, he or Schillings must explain the grounds for the redactions as required by r.31.19(3)(b).