Depp v News Group Newspapers Ltd & Anor

Standard disclosure under CPR r.31.6 is narrower than the former discovery test. A document need not prove the falsity of the disclosing party’s case or establish the receiving party’s case. It is disclosable where it materially affects the disclosing party’s pleaded case or supports another party’s pleaded case. The question is assessed primarily by reference to the statements of case, rather than matters raised only in witness statements. Proportionality remains relevant, but does not exclude documents with a material connection to pleaded issues. A failure to comply with an unless order may establish a breach without immediately requiring strike-out where the defaulting party may seek relief from sanctions.

The claimant brought a libel action against the defendants concerning allegations that he had been physically violent towards his former wife. The defendants applied for a declaration that the claim stood struck out under an unless order because the claimant had failed to disclose text messages obtained in related proceedings in Virginia. The claimant argued that the messages did not fall within CPR r.31.6 and were outside the pleaded issues. The central questions were whether the messages adversely affected his pleaded case or supported the defence, whether disclosure was disproportionate, and what procedural consequence followed from any breach.

1. Disclosure obligation. The Australian drug texts fell within CPR r.31.6. Standard disclosure is limited to documents on which a party relies and documents which materially adversely affect that party’s case or support another party’s case. The document need not conclusively prove falsity or truth.
2. Application to the pleaded issues. The timing and content of the texts materially supported the defendants’ pleaded allegations concerning drug use and the alleged incidents in Australia. References to cocaine were also relevant because the defence alleged more generally that violence sometimes followed the claimant’s consumption of drugs or alcohol. The texts were therefore adverse to the claimant’s pleaded case and supportive of the defence.
3. Scope of the inquiry. The court applied the CPR test rather than earlier authorities concerning the wider discovery obligation. Disclosure was judged by reference to the parties’ statements of case, consistently with Paddick v Associated Newspapers Ltd [2003] EWHC 299 (QB). The result would have been the same even if the witness statements were considered.
4. Procedural consequence. The claimant had failed fully to comply with paragraph 3(c) of the disclosure order. The court declined to make the requested strike-out declaration immediately because the claimant had indicated an intention to seek relief from sanctions. Any application was to be served within 36 hours, failing which the defendants had permission to restore their application.