Depp II v News Group Newspapers Ltd & Anor

In deciding whether to admit evidence served after a court-ordered deadline, the court should apply the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906: assess the breach’s seriousness and significance, identify why it occurred, and consider all the circumstances, including the factors in CPR r 3.9(1). The assessment must reflect circumstances existing when the application is decided, including any intervening adjournment. Where the breach is neither serious nor significant, the second and third stages ordinarily carry little weight. Relief may be granted while evidence is separately excluded, limited or deferred on grounds of relevance, admissibility or proportionality.

This was a directions hearing in a libel action brought by the claimant against the defendants. The trial had been adjourned and was due to begin on 7 July 2020. The claimant sought permission to rely on late-served witness statements from David Killackey Snr and Kate James, together with relief from sanctions. The defendants opposed the application on grounds including irrelevance, inadmissibility, disproportionality, witness bias and the risk of satellite litigation. The central issues were whether relief should be granted and, separately, which parts of the proposed evidence should be admitted.

1. Relief from sanctions. The court applied the three-stage approach stated in Denton v TH White Ltd [2014] EWCA Civ 906: assessing the seriousness or significance of the breach, considering why it occurred, and considering all the circumstances, particularly CPR r 3.9(1)(a) and (b).
2. The relevant assessment had to be made against the circumstances existing when the application was decided, rather than those existing when the breach occurred. Although the statements were served shortly after the deadline, the adjournment meant that the trial timetable was not imperilled, the conduct of the litigation had not been seriously disrupted, and the defendants had substantial time to consider the evidence and respond. The breach was therefore neither serious nor significant. Relief was granted for the late service of the statements of Mr Killackey, Ms James, Vanessa Paradis and Winona Ryder.
3. Mr Killackey. Permission to rely on his statement and to call him was refused. Evidence of Ms Heard’s behaviour towards him did not materially bear on whether the claimant had controlled or intimidated Ms Heard. The timing of work on the Mustang was of marginal assistance, and the alleged conduct of Ms Heard’s father was irrelevant.
4. Ms James. The court treated admission as a matter of degree. Parts of her evidence were irrelevant, inadmissible or disproportionate, including purported expert evidence about drugs and matters concerning her own treatment by Ms Heard. Other evidence was potentially relevant to Ms Heard’s credibility, including evidence that Ms James had seen no signs of physical violence, her impression of the claimant, and the alleged statements to the Department of Homeland Security. The dogs-in-Australia evidence was deferred pending determination of related objections to other evidence. Permission to call Ms James was granted only to the extent specified in the judgment.

Not an appeal. The judgment records earlier directions and interlocutory judgments in the same proceedings, including [2020] EWHC 505 (QB) and [2020] EWHC 1150 (QB).