Depp gets through to the last reel with relief from sanctions over disclosure failures

Johnny Depp’s most famous character, Captain Jack Sparrow, is used to situations where all seems lost but something happens in the nick of time to effect a rescue. We left Depp’s latest storyline with our hero struck out for alleged failure to comply with an ‘unless’ order for disclosure.

On the defendant’s case, Depp’s case was struck out automatically on his failure to comply with Mr Justice Nicol’s order of 10 March. The hearing reported in my most recent article ended with a cliff-hanger – the judge declined to make an order for strike-out on the basis that Depp’s lawyers made a very prompt application for relief from sanctions.

That has now happened, and Depp lives to fight another day. The judgment is here (my thanks to Gordon Exall and his Civil Litigation Brief, as so often, for prompt access to things like this and for his usual brisk summary of the key points of the judgment).

The key paragraph is 30 iii):

I agree that the ‘unless’ order which I made on 10th March was not because the Claimant had been recalcitrant but because of the imminence of the trial which was then due to start in only a few days’ time. I cannot find that the breach which I have found was deliberate. Rather it was because of an erroneous view of the nature of the disclosure obligations in r.31.6. …in those circumstances, while the breach was serious, there is scope for other considerations to play a more significant role in the assessment of what justice requires.

The paragraph of lasting value (both for those required to give disclosure and for those wishing to challenge what has been given) is perhaps Paragraph 23:

Striking out, Mr Sherborne submitted, was a draconian step which should be reserved for cases where it was clear what the litigant had to do and had not done it. This was not a case of a litigant refusing to do something which he clearly was required to do, but a mis-judgment of what the Rule 3.6 required. The Claimant now accepted that the Australian drugs texts were disclosable but the decision to the contrary which the Claimant had taken prior to my judgment was made in good faith.

The judgment also gives us a succinct summary of the ‘three Denton stages’ (the tests set out in Denton v T.H. White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3296, namely (1) Was the breach serious or significant? (2) Why did the breach occur? (3) Is it just to allow relief from sanctions having regard to all the circumstances, particularly the matters referred to in r.3.9(1)(a) and (b)?

Lastly, the judge considered the imminence of the trial. On the one hand, the trial is due to take place very soon, and the Court Service has had to make considerable efforts to accommodate it physically. On the other hand:

As it happens, the same pandemic has led the courts to favour where possible the use of technology to conduct hearings remotely. Somewhat ironically, there is not therefore quite the same competition for court resources that there would be in normal times and therefore the continuation of this trial will not necessarily be at the expense of other litigants and cases.

This case has gained a certain prominence because of the claimant’s fame – it is not usual for arguments about disclosure, sanctions and Denton to reach the newspapers. It is important for itself, however, not least as a reminder that there is room both for judicial discretion and for arguments about good faith. Although this was not an issue in the case, Denton requires good faith on the part of challengers as well as of the party being challenged. It is worth noting also the attention to the actual effect on the court’s resources – not just a mindless recital of the formal obligation in respect of resources, but a proper analysis of the effect of allowing or preventing the trial.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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