Depp v News Group Newspapers Ltd & Ors

The court considering relief from sanctions under Denton v T.H. White Ltd must address three stages: the seriousness and significance of the breach, its explanation, and all the circumstances, including efficient and proportionate litigation and compliance with court orders. An erroneous, good-faith interpretation of disclosure obligations may justify relief where the breach was not deliberate and the trial remains fair. For third-party disclosure, the applicant must show both that the documents are likely to support its case or adversely affect another party’s case and that disclosure is necessary for fair disposal or to save costs. The court retains a discretion only after those conditions are met.

The claimant brought a libel action concerning articles which alleged that he had committed repeated acts of physical violence against his former wife, Amber Heard. The defendants relied substantially on the defence of truth under Defamation Act 2013, section 2.

The claimant sought relief from sanctions after failing fully to comply with an unless order requiring disclosure. He also sought third-party disclosure from Ms Heard under Senior Courts Act 1981, section 34 and CPR rule 31.17. The issues were whether relief should be granted and whether the requested categories of documents satisfied the statutory and procedural preconditions.

1. Relief from sanctions. The application was governed by CPR rule 3.9 and the three-stage approach in Denton v T.H. White Ltd: whether the breach was serious or significant; why it occurred; and whether relief was just in all the circumstances, particularly in light of efficient and proportionate litigation and the enforcement of court orders.
2. The breach of an unless order was serious or significant. However, the court accepted that the failure arose from an erroneous interpretation of the disclosure obligation in CPR rule 31.6, made in good faith and without a deliberate intention to conceal documents. The unless order had been imposed because of the imminent trial, rather than recalcitrant disobedience.
3. The court distinguished the circumstances from Global Torch Ltd v Apex Global Management Ltd (No 2) and related authorities. The claim was advanced, the trial was imminent, and the court was not persuaded that a fair trial had become impossible. The relevant breach was confined to the non-disclosure found proved, together with one further text which the claimant accepted should have been disclosed. Relief from sanctions was therefore granted, subject to a formal undertaking that the claimant would not seek sanctions against Ms Heard for assisting the defendants in breach of the Virginia protective order.
4. Third-party disclosure. Under CPR rule 31.17(3), the applicant had to establish two preconditions: that the documents were likely to support his case or adversely affect another party’s case, and that disclosure was necessary for fair disposal of the claim or to save costs. Even where satisfied, the court retained a discretion whether to order disclosure.
5. Following Three Rivers DC v Bank of England (No 4), likelihood did not require proof that the documents were more probable than not to assist the applicant. Nevertheless, the claimant failed to show that the recordings, photographs or communications sought were likely to assist his case or adversely affect the defendants’ case, or that they were necessary for fair disposal. Alleged infidelity was irrelevant to the central issue of whether the claimant had assaulted Ms Heard.
6. The third-party disclosure application was refused.