Depp in deep with disclosure

Johnny Depp highlights the importance of complying with the civil procedure rules

The press are hot to report on the case of Johnny Depp v News Group Newspapers Ltd (the Sun) and recent headlines on the case demonstrate the importance of full and frank disclosure during court proceedings.

All parties are obliged to provide any evidence that supports their case or is adverse to their case with their opponents, that is in their possession or control. This duty is on-going throughout the litigation process even if something is discovered after the ‘official’ disclosure date there is a requirement to share this.

Mr Justice Nicol had held that Mr Depp’s case stood to be struck out due to a failure to disclose documents which meant the actor needed to make an application for relief from sanctions for the case to be reinstated. The breach by the Claimant, Mr Depp, was in respect of an order to disclose text messages which related to discussions around drugs between the actor and his assistant. The Defendant had made an application for a peremptory order for the disclosure of the texts and Mr Justice Nicol found that they should have been disclosed; the Claimant was therefore in breach.

The case relates to an action of libel that the actor has brought against the Sun newspaper regarding allegations of physical violence that were contained in articles that were published in 2018. The article was actually in relation to Mr Depp being cast in JK Rowling’s new movie and the online article’s headline was ‘Gone Potty: How can JK Rowling be “genuinely happy” casting Johnny Depp in the new Fantastic Beasts film after assault claim?’. The newspaper seeks to rely on a defence of ‘truth’.

The issue of disclosure relates to the newspapers argument that the actor had not complied with the obligation to disclose, in breach of the judge’s order. The case was struck out over failure to disclose certain text messages and drug tests. In civil litigation proceedings, if “standard disclosure” is ordered, then the parties must disclose documents that assist their case and documents which are adverse to their case (CPR 31.6). The specific text messages were to the newspapers mind adverse to the actor’s case and should have been disclosed and weren’t.

Mr Wolanski QC, acting for the Defendants, submitted that the text messages were clearly within Mr Depp’s custody or control and were adverse to his case and therefore should have been disclosed. An example of the messages include the actor asking for MDMA pills. One of the texts from Mr Depp on 27 February 2015 read

‘Disappearer!!! We should have more happy pills!!!?? Can you???’

The Claimant had not denied using drugs and in his statement, when addressing this issue and his relationship with his ex-wife he says

‘At times we took drugs together: MDMA mushrooms and cocaine. However these were not common occurrences….’

There are a number of other text messages relating to drugs however Mr Justice Nicol said that it was not possible to go through each of the text messages as it was important for the draft of his judgment to be sent out as soon as possible given that trial was imminent and there were other matters to be addressed before trial.

Mr Justice Nicol found for the Defendants that the Claimant had failed to comply with the obligation to disclose and as a result the case was struck out. The Claimant was then required to make an application for relief from sanctions.

On 2 July 2020, Mr Justice Nicol reinstated the case however this was conditional upon the actor agreeing that he would not seek sanctions against his ex-wife for her alleged breaching another court order made during separate defamation proceedings in the US.

The trial is listed to start on the 7th July 2020.

This case also highlights the lack of privacy that can take place during the disclosure process. Therefore, before embarking on a case parties should consider the wider implications and whether they are ready for their private lives and personal information to be shared publicly. They should also be ready to have frank discussions with their advisors early on if they intend to embark on cases that rely on such evidence. Sometimes disclosure can include medical records, sensitive and personal information and as such clients should be made aware of this in advance.

Author: Matthew Chandler