Depp II v News Group Newspapers Ltd & Anor

Specific disclosure depends on relevance, necessity and proportionality. A party’s disclosure statement is an individual responsibility and must ordinarily be made by the litigant, not merely by legal representatives. Documents may be within a party’s control where the party has or had a right to possess, inspect or copy them. Alternative access through a non-party does not remove the obligation of a litigant who is subject to disclosure. Disclosure orders must remain confined to documents germane to the issues. The court must take particular care with medical and confidential material, limiting disclosure to documents relevant and necessary for the fair disposal of the action.

The claimant brought a libel claim concerning articles published by the defendants. The defendants pleaded truth under Defamation Act 2013 s 2 and applied shortly before trial for specific disclosure.

The application concerned audio recordings, text messages, documents from related United States divorce and defamation proceedings, medical records and computer material. The court also considered complaints about the claimant’s disclosure statement, redactions and supplementary disclosure. The central issues were whether further documents were within the claimant’s control, relevant to the pleaded issues, and reasonably necessary and proportionate to the fair disposal of the action.

1. Outcome. The defendants’ application for specific disclosure succeeded in part. Orders were required concerning relevant audio recordings, documents from the United States divorce proceedings and further medical-record information, but not in all the terms sought. No order was made for further inspection of the missing text messages or computer material.
2. The disclosure statement is a substantive obligation. Under CPR r.31.10, the party ordered to disclose documents must ordinarily make and sign the statement personally. Legal representatives were not entitled to amend the statement so as to certify that the claimant had carried out the duty. The court endorsed the reasoning in Arrow Trading and Investments Est 1920 v Edwardian Group Ltd (No 2) [2004] EWHC 1319 (Ch).
3. Further disclosure required grounds for believing that relevant documents were within the claimant’s control. The court applied the ordinary control concept, including a present or past right to possession, inspection or copying. Alternative access through Ms Heard did not answer the application because she was not a party and could not be compelled to provide the documents.
4. The scope of disclosure had to remain confined to documents falling within CPR r.31.6. The order for audio recordings was therefore narrowed to recordings germane to the pleaded issues, and unnecessary requirements concerning when and how recordings were created or obtained were removed.
5. Inspection of documents mentioned in statements of case remained subject to proportionality. Following National Crime Agency v Abacha [2016] EWCA Civ 760, inspection was refused where the admitted wording or the minor timing issue meant that production of the underlying texts was unnecessary for the fair disposal of the action.
6. Medical privacy and confidentiality did not justify withholding relevant documents, but they required particular care. The claimant had to provide more detail about efforts to obtain relevant medical records and explain any maintained redactions under CPR r.31.19. The court declined to require a wholesale repetition of the medical disclosure exercise.
7. The order was to be agreed or determined after submissions. No special sanction was imposed, CPR r.31.21 applying in any event. Costs were left to the conclusion of the trial, subject to further submissions if necessary.