That's a relief (from sanctions) for Johnny Depp - libel trial can proceed despite failure to disclose texts

Mr Depp’s libel action over The Sun headline which called him a "wife-beater" can now proceed, even though he breached a court 'unless order' by not disclosing certain texts about his drug-taking.

Readers of the red-tops and the entertainment press will be aware of the public falling out between Johnny Depp and his ex-wife, Amber Heard. Specifically, Mr Depp is bringing a libel claim in the US against his ex-wife Ms Heard in respect of an article she had written in the Washington Post claiming he had been physically violent towards her. He is also bringing a similar libel action in England against The Sun.

In the English proceedings The Sun argued that Mr Depp should disclose documents used in the US proceedings. The relevant documents were protected by an order of the US court in favour of Ms Heard. The English court ordered that if Ms Heard provided her consent to their disclosure Mr Depp should produce them to his English lawyers who would review them and disclose those that were relevant to the English proceedings.

After this order was made Mr Depp changed his English lawyers and sought more time to comply with the order in relation to the documents to allow his lawyers to get up to speed with the case. The court allowed this but, because the trial was coming up quickly, made an 'unless order' in relation to the production of the documents.

An 'unless order' is one that specifies the sanction that applies if a litigant does not comply with it. Here, the court ordered that unless Mr Depp disclosed the documents in accordance with the court rules on disclosure by a specified date, his claim would be struck out. Whilst it is possible to apply to the court to get relief from sanctions such as strike out the courts have in recent years become much stricter about granting such relief.

After Mr Depp disclosed some documents, his compliance with the court order was challenged by the defendants who said that Ms Heard had told them that Mr Depp had not disclosed certain texts. Mr Depp claimed that they did not have to be disclosed because they were not relevant to the claim and only related to drug-taking. However, the court held in Depp v News Group Newspapers Ltd & Anor [2020] EWHC 1689 (QB), that on a proper analysis of the case the texts were relevant to the claim and should have been disclosed. This meant that Mr Depp was in breach of the 'unless order' and had to apply for relief from sanctions if his claim was not to be struck out.

When considering an application for relief from sanctions, the court has to take a three-stage approach, as explained by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906. The three stages are:

• Was the breach serious or significant?
• Why did the breach occur – was there a good reason for it?
• Is it just to allow relief from sanctions, having regard to all the circumstances, in particular the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with court rules and orders?

When considering this three-stage test against Mr Depp’s situation the court held in its subsequent judgment Depp v News Group Newspapers Ltd & Ors [2020] EWHC 1734 (QB) that:

• As to the first stage, the breach was serious and significant – as the judge said, breaches of unless orders almost invariably are.
• As to the second stage, the judge accepted that the breach was the fault of Mr Depp’s lawyers in taking too narrow an approach to the disclosure requirements. However this had been done with good faith and not with the intention of deliberately concealing documents adverse to Mr Depp’s case, and the documents had been re-reviewed once the court had determined the approach was in error. As the judge observed, however, the courts take the view that a sufficiently good reason must usually be something outside the party’s control – a mistake by a party's lawyers is not such a reason.
• The third stage was therefore the crucial one. The judge decided that in this case, he should grant relief against sanctions. A key reason was that the unless order had not been made because Mr Depp had been recalcitrant in complying with the disclosure order, but because the trial had been imminent. Another key reason was that the breach had not been deliberate but had been caused by an erroneous view of the application of the court rules on disclosure obligations. The judge said that because of this, there was scope for other considerations to play a more significant role in the assessment of what justice required, which in this case included the following:
  • The claim was far advanced, the trial was imminent and would not be unfair.
  • Mr Depp had agreed not to seek any sanctions against Ms Heard in the US libel claim for alerting the defendants about the missing texts.
  • It was important for Mr Depp for the English claim to proceed because he thought the reasoned decision from the judge here would provide greater vindication than the bald verdict which would be given by a jury in the US libel trial.
  • The continuation of the trial would not necessarily be at the expense of other litigants and cases – although five courtrooms would be taken up by the trial, this was because of the social distancing required by COVID-19 and in any event, the greater use of remote hearings as a result of the pandemic meant there was less competition for court resources.

This case however should be taken as a reminder of how important it is to comply with court rules and orders, particularly 'unless orders'. Even if you are able to obtain relief from sanctions, which is far from guaranteed, you will still have had to incur additional time and costs.