Depp v News Group Newspapers & Anor

A court should override a third party’s confidentiality obligation only to the extent necessary to resolve the proceedings fairly. The centrality of the evidence increases the justification for overriding confidentiality, but irrelevant confidential material must remain protected.

A stay designed to compel a litigant to surrender contractual rights is justified only where it is necessary for justice to be done. It is premature where the defence can be pleaded, alternative procedures for obtaining evidence remain available, and the alleged impediment may be resolved by other means.

The claimant brought a libel claim concerning an article alleging that he had been guilty of serious domestic violence against his former wife. The defendants relied on truth and sought a stay under CPR 3.1(2)(f), arguing that the former wife was a crucial witness but would not assist unless released from confidentiality obligations in the parties’ divorce agreement.

The claimant said he did not oppose her giving evidence or seeking clarification or variation of the agreement. The issue was whether a stay was necessary at that stage to secure the fair determination of the claim.

1. Application dismissed. The defendants had pleaded a defence of truth and were not presently prevented from advancing it.
2. The court may override a confidentiality obligation affecting a witness where necessary fairly to resolve the claim. The override must go no further than necessary. The court must protect confidential material that is irrelevant to the issues for determination. The assessment is fact-sensitive and depends in part on the centrality of the evidence.
3. A stay which effectively compels a litigant to surrender contractual confidentiality rights constitutes interference with that litigant’s rights. It must be necessary in the sense that, without it, the court could not do justice in the proceedings. The reasoning in Raab v Associated Newspapers Ltd [2011] EWHC 3375 was the closest analogy and supported that approach.
4. On the evidence, the former wife’s concerns about the divorce agreement were not shown to be well founded. The agreement appeared to permit truthful disclosure required by legal process. In any event, the issue could potentially be resolved through an application to the Californian judge responsible for disputes under the agreement.
5. As a matter of English law, a witness answering a properly issued witness summons and giving evidence in court is immune from an action for breach of confidence based on those disclosures. That immunity extends to preparatory stages before trial, as established in Marrinan v Vibart [1963] 1 QB 528, Barclays Bank v Taylor [1989] 1 WLR 1066 and Watson v M’Ewan [1905] AC 480.
6. Alternative procedures, including a witness summons under CPR paragraph 34.2 or a letter of request under CPR Part 34.13, had not been explored. The court would reconsider the position if evidence showed a realistic risk that the witness would remain unavailable or would lack equivalent immunity in California, or if the claimant actively sought to prevent or deter her evidence.