DEPP, DISCLOSURE, TEXT & TESTS: CASE STRUCK OUT BECAUSE OF FAILURE TO COMPLY WITH PEREMPTORY ORDER : CLAIMANT’S CASE NOW ALL AT SEA
In Depp v News Group Newspapers Ltd & Anor  EWHC 1689 (QB) Mr Justice Nicol held that the claimant’s case stood struck out because of a failure to give disclosure. There are important observations about the scope of disclosure.
The claimant brings defamation proceedings in relation to allegations of physical violence. The court ordered that the claimant give further disclosure, in particular in relation to documents in a US libel claim. The time for this disclosure was varied, but a peremptory order was added.
THE DEFENDANT’S ARGUMENT
The defendant argued that the witness statement and list filed had not disclosed certain documents. The claimant had not complied and the action stood struck out in failing to disclose certain text messages and drug tests.
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 18th 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.
DOCUMENTS ADVERSE TO THE CLAIMANT’S CASE
The judgment on this point is interesting and important in that it concentrates on the test for disclosure and the question of whether certain documents had to be disclosed on the grounds that the adversely affected the claimant’s case. In particular the test was by reference to the pleaded case.
‘Standard disclosure requires a party to disclose only –
(a) The documents on which he relies; and
(b) The documents which
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.’
THE JUDGMENT ON THIS ISSUE
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 the imminence of the trial as well as the other outstanding matters which need to be addressed before then, if indeed the trial is to proceed.
‘Disappearer!!! We should have more happy pills!!!?? Can you???’
‘Yes we can !! I’m giving them to Stephen to give you. Yay xx’
‘Where is the other one?’
‘There was two G in that jar. Are you out? The guy only carried 2 a day and more tomorrow. He said it’s because if he’s caught with more than 2 it’s 20 years in prison …. I can try another guy and get one more for when you pick Malcolm up.’
‘Fucking give me the goddam numbers. I’ll take care of this shit!!! Don’t bother.’
‘Where are you now? If they don’t have it, I can’t get it. It’s someone that works on the film not a professional dealer. I will bring it to you.’
‘No you’re not. Why?? That is not a part of the job description. And I’m telling you now. Any ONE of ANY of you guys start to lecture me. (and text 74 continues) I just do not want to hear it [Claimant’s emphasis.’
‘I’m a grown man and I will NOT BE JUDGED [Claimant’s emphasis].’
‘AND I WILL NEVER EVER LIVE IN THIS WORLD CAGE ANY LONGER. [Claimant’s emphasis]’.
‘Also … May I be ecstatic again??? Helps … color me deceased.’
‘Need more whitey stuff ASAP brotherman … and the e-business!!! Please I’m in a bad bad shape. Say NOTHING to NOBODY!!!!’
i) They tended to show that the Claimant was seeking a supply of ecstasy shortly before the journey to Australia and, very likely, had obtained that drug.
ii) They also tended to show that the Claimant was seeking a supply of cocaine (‘whitey’) at about the same time and felt he was in urgent need of it.
iii) They tended to show the Claimant’s exasperation when challenged about his use of drugs which supported Ms Heard’s account in paragraph 8.a.8 of the Re-Amended Defence.
iv) The timing of the texts was significant. They all took place a few days before the pleaded assaults in Australia, whether the incident in which the Claimant cut his finger was as the Claimant said on 8th March or a little earlier.
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.
’20. It has been well-reported and I have been open about my challenges with alcoholism and addiction throughout my life….
21. My addiction over the years has been to Roxicodone pills. …
22. I have taken other drugs in my life and I did take other drugs during the course of our relationship but I never suffered addiction with those drugs…
25. After this, for the most part of our relationship with very occasional lapses I would use marijuana and drink wine… At times we took drugs together: MDMA mushrooms and cocaine. However these were not common occurrences….’
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.
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.
The action stands struck out. The trial is listed to start on the 7th July. The claimant indicated he would be seeking relief from sanctions. The judge made an order for the filing of the application and witness evidence to be made on the 20th June (I am not aware whether the result of that application has been reported).