In Depp v News Group Newspapers Ltd & Anor [2020] EWHC 1689 (QB) (29 June 2020) the defendants’ counsel submitted that Johnny Depp’s mentions in texts to “whitey stuff” were references to cocaine. The Civil Procedure Rules of England and Wales are set out in The White Book. The White Book’s rules and the ‘whitey stuff’ texts collided in a hearing before Mr Justice Nicol last week. The White Book won, and Depp’s case was struck out, subject to an application for relief from sanctions which, the judge said, must be made PDQ because the trial was listed for 7 July.

The main point at issue was whether, on the face of the pleaded cases, the apparent drug use brought certain texts within Rule 31.6. It mattered also that the disclosure was proportionate.

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Johnny Depp last appeared in this blog in February, when I commented (cautiously) on a report in the Guardian that his “previous legal team accidentally shared an archive of 70,000 messages with the Sun’s lawyers.” He turns up now because his libel action against his former wife, Amber Heard, fell to be struck out for failure to comply with an order for disclosure made in March. If there is no successful application for relief from sanctions, the striking out will presumably take effect from the expiry of the order referred to below.

The documents at issue are the so-called “Australian drug texts”, a series of texts between Depp and one Nathan Holmes. On 6 March 2020, Mr Justice Nicol ordered witness statements in respect of documents disclosed in libel proceedings in Virginia and disclosure of “any of the US libel claim documents which fall within the scope of CPR 31.6”. There was a request for an extension which was granted (to 13 March) on the basis that the claim would be struck out if the order was not complied with.

It was asserted by the defendants that the disclosure purportedly made pursuant to the order was incomplete. If that was correct, then the claim was struck out on the expiry of the unless order. The argument was about whether the documents in question were or were not within the scope of CPR 31.6.

The “Australian drug texts” appear to relate to Depp’s demands for drugs – “Need more whitey stuff ASAP brotherman”, the defendants’ counsel submitted “tended to show that the Claimant was seeking a supply of cocaine (‘whitey’)…”.

Rule 31.6 is and was intended to be restrictive:

‘Standard disclosure requires a party to disclose only –

(a) The documents on which he relies; and

(b) The documents which

(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.’

The arguments about disclosure were summarised thus by the judge:

13. It is the Defendants’ contention that these text messages fell within CPR r.31.6 because they were documents adverse to the Claimant’s case and, to some extent, supported the Defendants’ case and, in consequence the Australian drug texts came within r.31.6(b)(i) and (ii). The extraction report had, as I have said, been produced in the Virginia libel proceedings sometime before 18th February. Mr Wolanski QC for the Defendants submitted, without contradiction by Mr Sherborne for the Claimant, that they must have been in the Claimant’s possession, custody or control.

14. Consequently, the Defendants contend that the Claimant failed to make proper disclosure of the Virginia libel trial documents and, as a result of paragraph (10) of my order of 10th March 2020, the claim is struck out.

15. Mr Sherborne’s contention in summary is that the Australian drugs texts were not disclosable under r.31.6, there has been no failure to comply with the 10th March order and, therefore, the Defendants’ application should be refused.

The claimant’s relied on one of my favourite cases Shah v HSBC Private Bank Ltd [2011] EWCA Civ 1154 – ‘favourite’ because it shows the Court of Appeal cutting to the chase in brisk style. I paraphrase – “We don’t know why the parties argued about whether the documents are ‘relevant’ because ‘relevance’ is not part of the test, and the judge should not have considered ‘relevance’”.

(I wrote about Shah in a 2012 article called The CPR Standard Disclosure test is a strict one says the Court of Appeal.)

There is some gratuitous amusement to be had from the texts and from the arguments about whether or not they fell within Rule 31.6. What matters is the judge’s conclusion (in paragraph 48) that:

The Australian drug texts were adverse to the Claimant’s pleaded case and / or were supportive of the Defendants’ pleaded case.

Note, by the way, that reference to “the pleaded case” – it is that which matters in this context, not what appears in witness statements or elsewhere.

The judge went on to consider, as he was bound to, whether disclosure was proportionate and said (at Paragraph 50 iv) that he did not consider that it would “disproportionately extend the duty of disclosure to treat it as extending to the Australian drug texts”.

Accordingly, Depp had “failed to comply fully with the obligations…of [the] order of 10 March”. The judge did not make a declaration that the case was therefore struck out because the claimant’s counsel had made it clear that he intended to apply for relief from sanctions. He was put on a very tight timetable to get on with this.

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