In the on-going and high profile case of Depp II v News Group Newspapers Ltd and another [2020] EWHC 1689 (QB), the actor Johnny Depp became dangerously close to having his libel action against News Group Newspapers Ltd (NGN) struck out for failing to comply with an unless order requiring him to disclose certain documents in the case.
What is an unless order?
An unless order is an order of the Court requiring a party to legal proceedings to comply with certain obligations and if they fail to do so their case will be struck out by the Court, thus preventing them from taking part in the case any further.
Depp II v NGN and another
The underlying case was an action brought by Mr Depp against NGN for alleging in a news article that Mr Depp had subjected his ex-wife, Ms Heard, to physical violence during their relationship.
During the course of the case, NGN sought the disclosure of documents that had been deployed during the course of a libel case in the USA between Mr Depp and Ms Heard following Ms Heard agreeing to the documents being made available to NGN. The Court granted NGN’s request and made a very tight timetable for compliance with Mr Depp’s obligations (largely as the Judge was trying to ensure that the trial could still proceed). Mr Depp was only given 48 hours to provide a witness statement confirming that he had provided all the US libel documents to his solicitors, and that his solicitors then had a further 72 hours to confirm in a witness statement that they had reviewed such documents with a view to disclosing any documents falling within standard disclosure (i.e. that supported NGN’s case or adversely affected Mr Depp’s) were then disclosed.
Mr Depp’s legal team asked the Court for more time and were granted more time but with an unless order attaching to the disclosure obligations.
Mr Depp and his solicitors partly complied with their obligations within the new time frame set by the Court but they failed to disclose an ‘extraction report’ deployed in the USA libel action that included text messages sent to and from Mr Depp’s mobile phone. Although some of the entries from the extraction report had been included in the disclosure made by Mr Depp, a series of texts between Mr Depp and his assistant, Mr Holmes, were not included (Australian drug texts). The Australian drug texts were exchanged between 25th February and 7th March 2015 and were alleged to revolve around Mr Depp asking Mr Holmes to procure drugs for him.
Mr Depp argued that none of the text messages fell within standard disclosure. He claimed that the central issue to NGN’s truth defence was whether Mr Depp had subjected Ms Heard to physical violence, and none of the Australian drug texts were directly concerned with that issue. So far as the texts spoke of Mr Depp trying to acquire cocaine, that was irrelevant since his alleged use of cocaine was not part of NGN’s pleaded case. Whilst the text messages allegedly showed Mr Depp seeking to secure MDMA, there was no evidence that he succeeded in such a task. In addition, Mr Depp had never denied that he had taken drugs or drank alcohol.
Mr Justice Nichols ruled in favour of NGN on the following basis:
“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 7th March, i.e. the day before the date on which the Claimant says his finger was injured.
ii) As I have said, it is not necessary that the documents in issue demonstrate the falsity of the disclosing party’s case or the truth of the receiving party’s case. It is sufficient, as Lord Woolf said in his report, if the documents ‘to a material extent’ adversely affect the disclosing party’s case or support the case of the receiving party. I agree with Mr Wolanski that the Australian drug texts do this. They do so in the ways that Mr Wolanski has submitted.
iii) I have applied the test in r.31.6 and not the earlier authorities.
iv) I do not accept that it would disproportionately extend the duty of disclosure to treat it as extending to the Australian drug texts. Substantial resources have been devoted by both parties to this litigation which they both, understandably, regard as important. In my judgment which led to the Disclosure Order, I specifically recognised that the US litigation between the Claimant and Ms Heard might have yielded documents which were disclosable in the present proceedings. I do not say that the texts were disclosable in these proceedings because they had been disclosed in the Virginia libel action. I had no evidence about the tests which would be applied by the courts of Virginia to determine a party’s obligation to disclose or discover documents, but the overlap of subject matter of the two sets of proceedings meant that suitable checks needed to be made and paragraph 3 of my order of 6th March 2020 provided what I considered to be an appropriate system for doing that.
v) I do not agree with Mr Sherborne that the texts regarding cocaine are immaterial to the pleaded cases. References to cocaine (or ‘whitey’) are not infrequent. In any event, the third sentence of paragraph 8.a alleges more generally that the incidents of violence sometimes followed the Claimant’s consumption of drugs (or alcohol). That allegation is not limited to MDMA. The Claimant has denied that sentence in paragraph 2.2 of his Re-Amended Reply.
vi) I also agree with Mr Wolanski that the Claimant’s response to what he saw as Mr Holmes lecturing him is supportive of what the Defendants say was his reaction to Ms Heard confronting him about his possession of a bag of MDMA pills.
vii) I have decided this application, as I am required to do, by reference to the parties’ pleaded cases. I make it clear that, if and so far as the witness statements are relevant to the present exercise, my decision would have been the same.”
Whilst the sanction that follows breaching an unless order is that that parties’ case is struck out, that party is able to apply for relief from that sanction, which is what Mr Depp did in this case. He succeeded in that application, largely on the basis that the Judge did not view his breach as intentional but rather was based on a mistaken analysis of the relevance of the documents in question.
How Nelsons can help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.