RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURES ON DISCLOSURE: THE DEPP TRIAL IS BACK AFLOAT

Last week I wrote on the latest episode of the Depp case.  Mr Justice Nicol held that there had been a failure to comply with a peremptory order on disclosure and the Mr Depp’s case stood struck out.  Today it was reinstated,  Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB).  For the second time (at least) in the case relief from sanctions was granted.

THE CASE

The claimant was found to be in breach of a peremptory order as to disclosure, consequently the action was held to be struck out.  The claimant applied for relief from sanctions.

THE JUDGMENT ON THIS ISSUE

The judgment sets out the submissions made by both parties in relation to the Denton test.  This was a serious and significant breach and, the judge found, the breach was not deliberate but due to a misunderstanding of the disclosure obligations.
    1. In my judgment, I should grant relief against sanctions. I have taken into account all that Mr Wolanski and Mr Sherborne have said, but in my view it would not be just to strike out the claim. My reasons are as follows,
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.