Adam Wolanski QC asked Nicol J at a High Court of Justice hearing (Thursday 25th June 2020) to strike out the Johnny Depp libel claim against The Sun newspaper (and Sun journalist Dan Wootton) alleging a breach of an earlier disclosure order of Nicol J
By John Brace (Editor)
and
Leonora Brace (Co-Editor)
First publication date: 29th June 2020, 06:46.
Edited 29.6.20 10:24 to correct Smeale to [Jeffrey] Smele and add sentence below about decision reference.
Edited 29.6.20 13:10 to add link to online version of decision arising.
Edited 2.7.20 21:50 to change part about decision is to decision was and add further link.
The decision arising from this hearing is [2020] EWHC 1689 (QB).
Please note that comments are turned off due to the ongoing nature of this case.
Earlier pieces published in this same case:-
A decision ([2020] EWHC 1689 (QB)) on the application made at this hearing was handed down by email to parties and sent to BAILII at 10.00 am on Monday 29th June 2020.
This is a report on a public hearing held on Thursday the 25th of June 2020, which was scheduled to start at 11.30 am (BST) in the High Court of Justice (Queen’s Bench Division) before the Hon. Mr Justice Nicol.
Due to the coronavirus pandemic the hearing was held (see Civil Procedure Rule Practice Direction 51Y) not in person but virtually as a video hearing. It was an application notice hearing in the libel case QB-2018-006323 (Depp v News Group Newspapers Ltd & Dan Wootton).
David Sherborne (Leading Counsel) and Kate Wilson (Junior Counsel) (instructed by Schillings International LLP) for the Claimant (John Christopher Depp II (“Johnny Depp”)).
Adam Wolanski QC (instructed by Simons Muirhead & Burton LLP) was for the Defendants (News Group Newspapers Limited and Dan Wootton).
There were a total of around thirty people watching at the start of the hearing at 11:34 am, but this increased to thirty-two by 12:12 pm. This is the first part of three (as this first hearing was adjourned for a one hour lunch break and there was also a shorter adjournment part-way through the second hearing (the one that resumed after lunch).
Words that are unclear or possible errors are surrounded with [** **] eg [**marmalade**]. Sometimes phonetic written representations of words translated into nearest equivalent used where the spelling may be unclear such as [** [Jeffrey] Smele **].
Unfortunately the hot weather, length of hearing and the impact the hot weather had on those addressing this hearing increased the error rate beyond the usual, but have been corrected (where possible) before publication.
Nicol J asked David Sherborne to make David Sherborne seen [to turn his video on] and Nicol J said that everybody could take their jackets off as it was extremely hot. Rather than go through all the documentation Nicol J wanted one of you [which referred to David Sherborne and Adam Wolanski QC] to start.
Adam Wolanski QC on behalf of the defendants referred to the long bundle sent as well as two notes, one from Adam Wolanski QC and one from David Sherborne. Adam Wolanski QC asked Nicol J if he had received the notes?
Nicol J after requesting a moment to find them, confirmed that he had the hearing note from the Claimant and also that he had seen the one from Adam Wolanski QC too.
Adam Wolanski QC said it was an application by his client to strike out because of a breach of the unless order made on the 10th of March 2020….
Nicol J said that he had a little difficulty in hearing Adam Wolanski QC.
Adam Wolanski QC said he would be closer [to the microphone] and try to speak louder.
The principal matter was the defendants’ application for the claim to be struck out for breach of an “unless” Order of Nicol J made on the 10th of March 2020, the application was at tab 32.
David Sherborne said that before Adam Wolanski QC commenced on the substantive application, there were a few things he needed to say, but if it was just where the documents were, David Sherborne would leave Adam Wolanski QC to do that.
Adam Wolanski QC referred to the application at tab 32, the principal matter was that if the defendants succeeded, then the matter would end, as there was no application for relief from sanctions by the Claimant. If Nicol J was not with Adam Wolanski QC and did not make the declaration sought and strike out, then there was one further application which was the Claimant’s application for an additional witness statement from Mr [Kevin] **Murphy**.
Nicol J replied, “Yeah”.
Adam Wolanski QC said about service yesterday [24th June 2020] at half past four, made a point about whether it could be dealt with at short notice, the lack of consent and that the application raised questions and that there was a document exhibited to the statement, most of which had not been seen before. Adam Wolanski QC added that as the Claimant’s legal team knows, two matters relating to evidence, Adam Wolanski QC wanted to make sure they were all dealt with at the same time, [such as] the additional witness statement served (Miss [Racquel] **Pennington**) a week ago.
Nicol J asked Adam Wolanski QC to go slower, the additional [witness statement] from who?
Adam Wolanski QC repeated Miss [Racquel] Pennington, which was served on the Claimant and the Claimant had been asked whether the Claimant consented, it had been served on the 17th of June but there was no answer, Adam Wolanski QC referred to the process of preparing a responsive witness statement and the Miss Heard allegations recently introduced. Adam Wolanski QC said about service later today [25th June 2020] or tomorrow [26th June 2020] was the hope and expectation.
Nicol J said he also saw some reference to an application notice for third party [disclosure] against Miss Heard?
David Sherborne said that Nicol J was right, there was an application [involving] Miss Heard, but we said there were limited documents that it was said should be disclosed. David Sherborne would deal with what was considered to be the breach first.
A number of matters were asked to be considered as part of the application by the defendants and David Sherborne was saying that Nicol J should look at [the] document.
Nicol J said he was trying to establish what was before Nicol J today [25th June 2020] and potentially at some future date.
David Sherborne referred to an application for relief.
Nicol J said he did appreciate there were lots of thing that [David Sherborne] wanted to say, but could [David Sherborne] confine “yourself” to what was before Nicol J today and potentially at some future date?
David Sherborne referred to the application for declaratory relief. Thirdly, there was an application for third party disclosure from Miss Heard, fourthly there [was^ no actual application [about] Racquel Pennington [** unclear **], the defendants wanted another witness statement from Miss [Amber] Heard and were not pursuing the application to strike out parts of the witness statement either today [25th June 2020] or in the immediate future. The trial was on Thursday week.
Nicol J said about identifying issues on the horizon, but that Nicol J thought Nicol J had made it clear as far as possible to deal with any issues of law in advance of the trial. Nicol J wanted the trial [to have] a clean start on the 7th of July. Arrangements were necessary and in the current circumstances [Nicol J] wanted as far as possible [for the] trial [to be] uninterrupted [and] issues of law could be dealt with at an early stage.
David Sherborne [explained that it] couldn’t be served on Miss [Amber] Heard until [Miss Amber Heard] was in the jurisdiction, which David Sherborne now believed [Miss Amber Heard] was.
Nicol J made a point about relief and [Miss Amber Heard] but said that the [defendants] were also entitled to be heard on that application. Nicol J would put down a marker, while this case [had] occupied a lot of the Court’s time, the proportion [of] time that [could] be devoted [was] not limitless [and] “you” [David Sherborne], [Adam] Wolansksi [QC] and [the] legal teams need to understand that.
David Sherborne said that we do, [on the] very limited points raised, [he would] add two things. [Adam] Wolanski [QC] said first [was] that [they hadn’t] yet applied for relief [from] sanctions. Until they succeed[ed], that relief from sanctions [didn’t] arise, [if Nicol J] grants declaratory relief [then we] will apply for relief from sanctions.
Nicol J said that in [his] experience [it was] commonly said by a party, but if relief [from] sanctions [was] pleaded, [wasn’t it] convenient for both to be dealt with at the same time?
David Sherborne said the argument was whether the defendants [had] established [there] has been a breach and he referred to the application notice for declaratory relief.
Nicol J said he understand that David Sherborne contended that there was no breach, but asked again if the wish was to apply for relief from sanctions, was it not more convenient to deal with at the same time as [Adam] Wolanski’s application for a declaration?
David Sherborne said to some extent how [Nicol J] view[ed] thte breach [was whether Nicol J] was satisfied [there was] a breach, [then] onto the three stage test.
Nicol J said that in turn [involved] the question about the reason why [** unclear **] [which required] evidence.
David Sherborne agreed and described the strange way [it was] raised a week ago, an application [wasn’t] issued, a hearing was asked for without putting in [an] application, [on a] timing point, a note [was] served at 200, copy to [the] defendants just after [** unclear **] which he [David Sherborne] described as a “strong sense of ambush” [which was] without asking for [an] abridgement of time. David Sherborne referred to not [having] had an opportunity to put in evidence in response.
Nicol J asked if David Sherborne was asked for it to be adjourned?
David Sherborne replied that David Sherborne would rather get on [with the] case. David Sherborne said that [they would] rather get on [with the] case and made further points about witness statements, the alleged breach, used the word either Australia or Australian, Mr [Kevin] Murphy, the response at 4 o’clock and the other matter [raised] not [of] breach, [but of] inaccurate information to [the] Court through [the] Claimant’s solicitor [in relation to a] recording disclosed in February [that was] somewhat supposed to assist.
David Sherborne [would] deal [with the] [Kevin] Murphy point and the opinion that it was tactical and a distraction [from preparing] from [the] trial. The documents from the US libel proceedings were disclosed by Mr Depp, then there was a review under [CPR] 31.6, David Sherborne believed [it was] “highly tactical” and that the Claimant was entitled to the opportunity to make an application for relief from sanctions as the application notice had only [been received] yesterday [24th June 2020].
Nicol J said he would pause for a moment, back to the application for third party disclosure Ms [Amber] Heard, [was she] now in [the] UK?
David Sherborne said that [they had] written to solicitors to confirm that.
Nicol J asked if [Ms Amber Heard had] separate solicitors?
David Sherborne said that [Ms Amber Heard had] separate solicitors and counsel who had been as a previous hearing. [The application] deliberately close to trial asked for three categories of documents.
Nicol J said he was still trying to understand [the] shape before [Nicol J] rather [than] hear submissions on substance.
In response to a further point of David Sherborne, Nicol J asked what was David Sherborne’s estimate?
David Sherborne answered that if there was no agreement, he thought it would take two hours, the caveat was that there had been service yesterday [24th June 2020] early afternoon with 58 documents, masses of texts and audio files. Although Mr [Johnny] Depp was subject to CPR 31.6, Ms [Amber Heard] was “a mere witness”.
David Sherborne referred to specified recordings, photographs and specified texts with two individuals, David Sherborne believed it could be completed within 2 hours.
Nicol J thanked David Sherborne and asked David Sherborne what was the position if it was put off today so all matters could be listed at the same time?
David Sherborne said that his client preferred to get on, but understand [it was] slightly difficult for the Claimant. [If there was a finding of] a breach [the Claimant] would respond with [an application for] relief [from] sanctions. David Sherborne [on] case management [referred to feeling] very distracted by all this [and needed] to properly prepare [for the trial].
Nicol J asked for Adam Wolanski QC’s [what his] position [was] on timings?
Adam Wolanski QC replied that he [didn’t] know, [he had] been shown a copy, [the] length of time depend[ed] on matters outside [his] hands.
[The length of time it was] likely to take [the] outstanding applications [for] witness evidence (Mr [Kevin] Murphy and any application for Ms [Racquel] Pennington) and heard if they were not dealt with by consent wouldn’t take more than an hour. As for any application [for] relief from sanctions, [that was] more complicated as [David] Sherborne [had explained]. [Adam Wolanski QC said that they had been] informed on 15th of June [that if it was] struck out [then it was] alluded [that they] may [make an] application [for] relief [from] sanctions.
Adam Wolanski QC said that in March, [there was] another breach dealt with by consent. [The] Claimant [had] writ[ten on] Tuesday afternoon and didn’t consider [there] had [been a] breach [and] no application [for] relief [from] sanction [had been] made today [25th June 2020].
Adam Wolanski QC made a further point, followed by that on behalf [of the] Claimant, [the evidence] at [the] PTR [pre-trial review] recording in [the] Daily Mail was false.
Nicol J made a comment about how he had asked Mr [David] Sherborne to keep [** unclear**] questions [** unclear**] exploring.
Adam Wolanski QC said that [it would] have an impact on time estimate. Adam Wolanski QC understood that any application for relief from sanctions [would] take 2 hours given [the] seriousness [of the] matter and breaches. [These were] not trivial breaches [and Adam Wolanski QC] anticipate[d the] application [would] take a couple of hours. Adam Wolanski QC ha[dn’t] seen [the] application [and] didn’t know. To come back [to the] question asked, [** unclear**] David Sherborne would prefer [to] go ahead today [on the] question [of] breach [of the] unless order, [** unclear**] (Australian [**this next word is either dogs or drugs but is unclear which**]).
Adam Wolanski QC said [it was a] clear breach, therefore [the Claim should be] struck out, [the Claimant had] been on notice for a week [so there was] no prejudice [to] deal with [it] today. [** [Jeffrey] Smele **], Adam Wolanski QC moved on to the question of the Australian [**this word is either dogs or drugs but is unclear which**] text? Adam Wolanski QC said that very simply [the] application can [be] deal[t] with quite quickly, [and] if successful [the] Claim be struck out. [** unclear **] dealt with now.
Nicol J said that [the] issued of whether the had been a breach would have to [be] address[ed], even in combination [with an] application [for] relief [from] sanctions consequent on such a finding.
Nicol J [took] on board [that if Nicol J found] against [the] Claimant, [the Claimant] may wish to have an opportunity [to] apply for relief against sanction. Nicol J stated that David Sherborne had “disappeared” and David Sherborne’s microphone was off, Nicol J was not sure and asked his clerk Amy Baker [to] get in touch [with] Mr [David] Sherborne and find out what [had] happened, Nicol J would pause a moment [as it was] important [the] Claimant’s representative should be present as well.
[** The hearing was paused at 12:10 pm. **]]
Kate Wilson [Junior Counsel for the Claimant] said that [David] Sherborne said he[’d] been kicked off [and was] trying to reboot.
Nicol J said [that he] hope[d] [David Sherborne did]n’t think [it was to] do with [the] Court.
Kate Wilson said [that she thought] it [was] a technical term.
Nicol J said [to] let [David Sherborne] know we’re waiting for him [to] successfully rejoin us.
Kate Wilson confirmed [that she had] told [David Sherborne].
Adam Wolanski QC said [Adam Wolanski QC had had] problemes joining as well [and was] knocked off [at] 25 past 10 [am and that there were] gremlins [in the] system kicking off.
Nicol J said [that his] comment [was that the] Court [had] no part [in the kicking off] applie[d] to you, Mr [Adam] Wolanski [QC].
David Sherborne asked, “Can you see me now?”
Nicol J said that Miss [Kate] Wilson explained [that there] had been that problem, [Nicol J had] asked her [to] relay [that Nicol J] did pause [the] hearing, [the] last thing said [was to] carry on hearing [the] application for [a] declaration [that the] Claim [be] struck out [for] failure to comply with [the] Unless Order. Nicol J understood [that there was a wish] to apply [for] relief against sanctions, [it was] not all or nothing [if the defendants] succeed[ed] on [their] application [for a declaration], that was [David Sherborne’s] position.
David Sherborne replied [that there may] be some overlap, [but that] David Sherborne want[ed] to be understood [that the Claimant] do[es]n’t know [the] position [of] Your Lordship re listing [and] would want to move as quickly as possible [** unclear**] [to] reach a view whether [there was a] serious breach and [the] factors, [it was] unhelpful [** unclear** ] a significant gap.
Nicol J said [that there was] not going to be a significant gap of get[ting] to [the] stage [of] finding [there] has been a breach [but that Nicol J would] set a very short time limit within which [an] application against relief [from] sanction [had] to [be] made.
David Sherborne said [that the] application [was] only made yesterday [** 24th June 2020 **] afternoon [and the] hearing [was] at short notice, David Sherborne want[ed] to say about the breaches [that] are relied on in support of the application [were] in [** [Jeffrey] Smele’s **] witness statement.
Nicol J said that it fell to you [David Sherborne] to develop your [David Sherborne’s submission].
David Sherborne made a comment that included the words “deal”, “point” and “learned friend”.
Nicol J said [that it was] slightly muffled, [was there a] problem with [the] microphone [at your end]?
Adam Wolanski QC said [that he could] see no cause, [Adam Wolanski would] try to speak more slowly and closer to [the] device.
Nicol J said, “that’s helpful”.
Adam Wolanski QC said [he would] deal with [the] point [of Adam Wolanski QC’s] learned friend [in the] skeleton argument, [that] by making this application [it was] simply to avoid dealing with [the] Claim on [its merits] and [to] derail [the trial], [this was] wrong, [the defendants] very much want[ed] to deal with [it] on [its merits] but [it couldn’t] be dealt with on [its] merits, unless the Claimant play[ed] by [the] rules and complie[d] with [the] disclosure obligations [which have] been repeated and [there have been] serious shortcomings in disclosure.
Adam Wolanski QC covered a number of points about the application, PTR [pre-trial review], medical notes of Doctor [**word is unclear – Blousey?**] [** unclear**] in face [of] severe deficiencies [** unclear**] the Court took [the] unusual step of making an Unless Order [so that the Claimant] had to comply with disclosure or [the] Claim [would] automatically come to an end. Adam Wolanski QC said [that the] latest breach of disclosure [and the] latest instalment in [this] unfortunate saga regarding disclosure. Adam Wolanski QC referred to the 10th March 2020 order in the bundle at tab 13.
Nicol J asked for just a minute [and to] let [Nicol J] turn that up.
Adam Wolanski QC answered, “page 140”.
Nicol J replied tab 13, [Nicol J had] got tab 13 now.
Adam Wolanski QC said, “page 140”.
Nicol J replied, “yeah”.
Adam Wolanski QC said that his version had disappeared from [the] electronic bundle, [Adam Wolanski QC was] trying to find [it] in [the] trial bundle. Adam Wolanski QC said [that the] Order on 10th March extended time for compliance by [the] Claimant with [the] disclosure orders following [the] pre-trial review.
Nicol J referred to the disclosure orders on 6th March.
Adam Wolanski QC used the word “erroneous” [** unclear**] followed by the phrase “extends time” [for] “compliance” [** unclear**] to 4:30 on the 13th March.
Nicol J said just a minute, yep.
Adam Wolanski QC referred to the 6th March order at tab 12, page [**unclear**]?
Nicol J replied, “yeah”.
Adam Wolanski QC answered “paragraph 3”.
Nicol J replied, “yeah”.
Adam Wolanski QC stated that paragraph 3 of [the] Order require[d the] Claimant [to] take a number [of] steps in relation to documents disclosed in US [United States] libel proceedings [between] Mr [Johnny] Depp and Ms [Amber] Heard in [the] US [United States]. Adam Wolanski QC said that paragraph (a) required the Claimant to provide a witness statement and statement of truth [that the Claimant had] provided all US [United States] libel claim documents to [the Claimant’s] solicitors here (Schillings).
Nicol J said just a minute… yeah.
Adam Wolanski QC said that para[graph] (c) require[d] Schillings within 72 hours, [to provide] witness statements and [a] statement of truth [about the] review [and the documents] not yet disclosed [which Schillings had] which [fell] within [the] scope of 31.6 CPR [Civil Procedure Rules].
Nicol J replied, “Yeah”.
Adam Wolanski QC said “and (c) require”[d the] Claimant to disclose through Schillings all [documents] within 31.6 from [the] US [United States] libel Claim within 72 hours of [the] step in (a), that was [the] Order [to] extend time [with] compliance (10th March). Adam Wolanski QC said that the result was the 10th [of] March Order (para[graph] 10) made that Order[’s] compliance, [see] paragraph 5 subject to [an] unless provision.
Nicol J asked which paragraph?
Adam Wolanski QC replied paragraph 10, of the 10th [of] March Order.
Nicol J said [something very short].
Adam Wolanski QC referred to a witness statement [** unclear**] provided by a Miss [unstated first name probably Joelle] Rich by 13th [of] March.
Nicol J asked for the name?
Adam Wolanski QC replied, “Rich, Rich”.
Nicol J asked for the date?
Adam Wolanski QC replied 13th [of] March, at tab 23 (page 378).
Nicol J said just a moment, which para[graph]?
Adam Wolanski QC replied paragraph [** the number was unclear **] on page 379.
Nicol J replied, “Yeah”.
Adam Wolanski QC said [that] at [the] same time on 13th [of] March [the] Claimant’s solicitor disclosed a number of documents from the US libel proceedings.
Nicol J replied, “Yeah”.
Adam Wolanski QC referred to the plea of truth at page 94, at paragraph 8 and asked does Your Lordship have it?
Nicol J asked for the page.
Adam Wolanski QC replied page [** the number is unclear **].
Nicol J said something brief.
Adam Wolanski QC asked does Your Lordship have page 94, “throughout the relationship the Claimant was controlling”?
Nicol J said just a minute followed by yep.
Adam Wolanski QC said [the] defendants’ case [was that] drug[s and] alcohol [had an] influence on behaviour towards Miss [Amber Heard].
Nicol J said just a minute.
Adam Wolansksi QC referred to page 96 and paragraph A(8), paragraph A(8) to A(11) [was about] a three day period during a visit to Australia by [Johnny] Depp and [Amber] Heard in 2015. Adam Wolanski QC said during [the] visit Miss [Amber] Heard [was] subjected to a 3 day ordeal of physical assaults [which led to] physical injuries.
Nicol J replied yeah.
Adam Wolanski QC said it was referred to as a 3 day hostage situation (paragraph 102 at page 281).
Nicol J replied yeah.
Adam Wolanski QC went back to to A(8), on or around [** unclear **] subjected to [a] 3 day ordeal, [** unclear **] broken lip, swollen nose and cuts. [** unclear **] argument about drug use [of] MDMA (ecstasy), [Amber Heard] confronted him (Claimant [Johnny Depp]) [as it was] not on [the] list. [** unclear **] before locked [** unclear **] bedroom, [** unclear **] MDMA (ecstasy) and alcohol, [** unclear **] after more pills, MDMA and chased with liquor [** unclear **], [Amber] Heard [** unclear **] asked what else that day, grabbed by [the] neck [** unclear **]. Adam Wolanski QC said he [didn’t] need to go through [the] violence on that occasion. [** unclear **] Lordship seem [the] defendants’ case [was that the] Claimant [Johnny Depp] ha[d] in [his] possession [a] bag [of] drugs (MDMA, ecstasy or pills as [it is] known also, that argument [Amber] Heard had concerned drugs in [Johnny Depp’s] possession and [he] was taking [** unclear **]. [The] defendants’ case [and the point] raised was triggered by Miss [Amber] Heard [who saw] use [of] drugs and challenge[d] him [Johnny Depp] about his use of drugs.
Nicol J said to Adam Wolanski QC to slow down please, followed by yeah.
Adam Wolanski QC said about the Claimant’s case in the amended reply at paragraph 2.2(h) and page 112.
Nicol J said [it was] reamended at tab 9.
Adam Wolanski QC said that he [thought] Your Lordship [was] right (page 112).
Nicol J asked which paragraph?
Adam Wolanski QC replied 2.2(h), page 112.
Nicol J replied, “2.2(h)?”
Adam Wolanski QC replied, “H for hotel”, in 2015 save [that it was] admitted [that the] Claimant [and Amber Heard] were both in Australia (paragraph 8a) [**unclear**] denied only one incident [**unclear**] post-nuptial agreement caused Miss Heard, prolonged and extreme rage, [Johnny] Depp[’s] account [it was] not caused by drugs but by [the] supposed desire [of Amber] Heard [to] enter into [a] post nuptial [agreement].
Nicol J said [that it was] no[t] desire, [but] resistance.
Adam Wolansksi QC apologised and corrected it to resistance. [**unclear**] In paragraph 2.2(h) [it was] sa[id] [**unclear**] poured a number [of] glasses of vodka and drank them.
Nicol J said just a minute.
Adam Wolanski QC referred to references to what [the] Claimant sa[id] Miss [Amber] Heard [was an] attack on him [**unclear**], crucially [**unclear**].
Nicol J said just a moment, let [Nicol J] get to that [**unclear**] avoidance of doubt expressly denied [**unclear**] any conversation about MDMA.
Adam Wolanski QC said [there were] three points to that denial, did [Johnny Depp] take MDMA, did Miss [Amber] Heard find any in a bag [**unclear**]
Nicol J said just a minute… yeah.
Adam Wolanski QC continued also the conversation about MDMA, next [he asked Nicol J to] please look at [the] second witness statement at tab 19 [on] page 214.
Nicol J replied tab 19, page 214.
Adam Wolanski QC said the second [of the] witness statements.
Nicol J said just a minute…, ahh,.. did you say 214?
Adam Wolanski QC said [that] where it start[ed], the relevant paragraph [wa]s paragraph 54 on page 228.
Nicol J quoted from paragraph 54, “did not take MDMA”.
Adam Wolanski QC referred to the amended Defence, MDMA pills in Australia in paragraph 54, [** unclear **] MDMA [** unclear **]. In early March 2015, [a] day describe[d] below, Miss [Amber] Heard [found] a bag [of] MDMA, do [you] not remember any conversations with Miss [Amber] Heard about MDMA at this time [** unclear**].
Nicol J replied yeah, all about MDMA.
Adam Wolanski QC said [that he] didn’t hear.
Nicol J repeated all about MDMA.
Adam Wolanski QC referred to any other drugs, “or any other drugs”.
Nicol J picked up [Adam Wolanski QC] on the last sentence [in]
paragraph 54, do not remember [a] conversation [with] Miss [Amber] Heard?
Adam Wolanski QC said that [paragraph] 58 [was] addressing what happened [on] day 2 [of the] Australia visit, [it] sa[id] go downstairs in [** unclear **] to avoid [** unclear **] followed me, can’t remember what [** unclear **] saying, [but] poured myself a glass [of] vodka [and] broke my sobriety [which I] needed to numb [the] pain [of] Miss [Amber] Heard’s insults and behaviour. [I] broke [my] sobriety by drinking vodka, [but was] far from off [my] face [on] MDMA pills, [** unclear **] until [a] glass of vodka on day 2.
Nicol J replied yes.
Adam Wolanski QC said that Miss [Amber] Heard[’s] witness statement start[ed] at page 259, [**unclear**] start[ed] at page 260.
Nicol J asked which tab?
Adam Wolanski QC replied that he did’t know. After a pause replied page 260, tab 20.
Nicol J said that [he thought that] part of the problem is that the pagination of the bundle [didn’t] quite match the pagination on the PDF file.
Adam Wolanski QC said [an] additional problem [was that Adam Wolanski QC] c[ould]n’t see the tabs.
Nicol J asked which page?
Adam Wolanski QC replied page 260.
Nicol J said yeah just a moment, yeah that’s page 263 in [the] PDF numbering.
Adam Wolanski QC replied paragraph [** unclear **].
Nicol J asked which paragraph [did Adam Wolanski QC] want?
Adam Wolanski QC replied paragraph 4 please.
Nicol J quoted, “Johnny said he was never violent or abusive towards me”.
Adam Wolanski QC replied.
Nicol J said just a minute please, followed by a pause then yeah.
Adam Wolanski QC said which was often, and then much of the time (paragraph 4) [Johnny Depp had] difficulty recalling [what] he ha[d] done after he had slept it off. [** unclear **] Firstly, [the] effect drugs had on him, [Johnny Depp] became violent, afterwards he [Johnny Depp] couldn’t remember what he [Johnny Depp] had done.
Nicol J replied yeah.
Adam Wolanski QC said that Miss [Amber] Heard [made a] similar point at paragraph 9, [which Adam Wolanski QC] invite[d] Your Lordship [to] read yourself.
Nicol J said just a moment, [touched his hand to his forehead for a while] followed by yeah.
Adam Wolanski QC said next please [was] page 282.
Nicol J asked [if Adam Wolanski QC’s] team [were] able to help on [the] PDF number?
Adam Wolanski QC [said he was] awaiting a message [on the] PDF number [in response to Nicol J] asking, [Adam Wolanski QC would] say paragraph 103 of [** unclear **].
Nicol J said [Nicol J had] found it, yep 103.
Adam Wolanski QC said that Miss [Amber] Heard [wa]s dealing with [the] Australia episode [** unclear **].
Nicol J replied yeah.
Adam Wolanski QC said starting four lines down, at some point Johnny [Depp] took out a bag of MDMA, [** unclear **] said I was being the moral police of drugs, we’d agreed not [to] take [** unclear **] pushed [against the] fridge [and] slapped me [** unclear **] took a handful of ecstasy [** unclear **].
Nicol J replied yeah.
Adam Wolanski QC said paragraph 106 [was] next please.
Nicol J quoted, “there was cocaine on the bar”.
Adam Wolanski QC said [** unclear **] saw [a] bag of pills [with] only a few left, [there] had been 10 or so in there, [he] put more in [** unclear **] chased down [with] red wine, drinking right out [of the] bottle, [I] said something like did you take all of those? Adam Wolanski QC said finally paragraph 116?
Nicol J replied, “116”.
Adam Wolanski QC said [the] account [of the] severed finger [was] also untrue, [he was] in such a state [and] explained some as in [he was in] shock and [had] take[n] a lot of drugs [and was] out of [his] mind and out of control.
Nicol J replied, “yeah”.
Adam Wolanski QC said he return[ed to the] topic [of the] third witness statement, [where we] see a very stark conflict [between] Miss [Amber] Heard and [Johnny] Depp whether [Johnny Depp] had drugs [and] whether he had taken [** unclear**].
Nicol J replied.
Adam Wolanski QC continued with had drugs of any kind in Australia.
Nicol J responded with whether he [Johnny Depp] had taken them.
Adam Wolanski QC replied and whether [Johnny Depp] had [had] a conversation about his misuse of them [** unclear**].
Nicol J replied yeah.
Adam Wolanski QC said that Mr [Johnny] Depp denie[d] all three assertions, [** unclear **] now do [** unclear **] use it, [** unclear **] decided not to disclose, emanates from the US [United States] libel proceeding starting at page 615.
Nicol J asked if [that was] in [the] PDF or in [the] bottom right corner?
Adam Wolasnki QC replied bottom right-hand corner [** unclear**].
Nicol J replied right on 615.
Adam Wolanski QC said [it] explain[ed] what [** unclear **], it is a report prepared by Mr [Johnny] Depp’s lawyers for the US [United States] libel proceedings, [** unclear **] [that] part refer[red] to messages, text messages (iMessage) between Mr [Johnny] Depp and [Mr] Nathan Holmes.
Nicol J replied, [Nathan] “Holmes?”
Adam Wolanski QC said [about the] [Nathan] Holmes text 19, on page 615.
Nicol J said let [Nicol J] get to that, [** unclear **], it was not very [** unclear **] to read the size of the print.
Adam Wolanski QC said [that he was] hopefully assured by [** unclear **] on [the] PDF.
Nicol J said sorry, we can enlarge in the PDF, let [Nicol J] see if [Nicol J] can do that.
[There was a pause].
Nicol J said text 19, [which Nicol J thought was] a text [** unclear **] Nathan Holmes [** unclear **] Mac.com.
Adam Wolanski QC said correct, from Nathan Holmes to Mr [Johnny] Depp because in [the] 6th column (right-hand column) directions in the [** unclear**].
Nicol J replied yep.
Adam Wolanski QC said on [the] 5th column [the] date when sent [was] 25th February 2015, [** unclear**].
Nicol J said yeah of course, the American system [was] month first.
Adam Wolanski QC replied that was right, underneath that [was the] date and time when the message was read. So starting with message 19, [Nathan Holmes] to [Johnny] Depp (25th February 2015) shortly before [the] visit to Australia started.
Nicol J asked if [Adam Wolanski QC knew] when [the visit to Australia] started?
Adam Wolanski QC said that he believe[d] 3rd of March or thereabouts, [Nathan] Holmes is Mr [Johnny] Depp’s assistant. Adam Wolanski QC said message 19 is Holmes’ text with the following, yeah, I left. Hope you don’t mind, about to die from tiredness. [** unclear **] [the] next message, message 20 [was] another, he’s safe, [Nathan Holmes] [on the] same day, 45 minutes later.
Nicol J said message 20, just a minute [** unclear**] message 20 is the date, [wa]s [it] 25th February again?
Adam Wolanski QC replied about 45 minutes after message 19 [** unclear**].
David Sherborne said [that David Sherborne] hesistate[d] to interrupt [but it was] three minutes past one.
Nicol J replied that [David Sherborne] was quite right, concentrating so hard [Nicol J had] overlooked the time. Nicol J asked [directed to Adam Wolanski QC] how much longer [did Adam Wolanski QC] need?
Adam Wolanski QC replied half and hour.
Nicol J referred to a convenient time to break.
Adam Wolanski QC [** unclear **] tipped it into an envelope, sorry XX.
Nicol J replied yeah.
Adam Wolanski QC said [Adam Wolanski QC] would come on after the adjournment to further messages, what [** unclear **] taking about [** unclear**].
Nicol J replied yeah.
Adam Wolanski QC asked would that be a convenient moment?
Nicol J said yes, that [was] fine, say five past two? Nicol J said now you’re going to be about half an hour more Mr [Adam] Wolanski [QC], Mr [David] Sherborne are you still there?
David Sherborne replied [he was] if [Nicol J could] hear [David Sherborne]?
Nicol J asked David Sherborne how long did [David Sherborne] think [David Sherborne] need[ed] to respond, [** unclear **], probably if only [an] hour and [a] half, [** unclear **] need an hour or so, hour to an hour and fifteen minutes, alright?
David Sherborne replied whether [they had] a short break in [the] middle [of the] afternoon, not this morning because [of the] start [at] 11.30 [am David Sherborne] was minded to that that.
Nicol J said [the break was] depending on how long [it took for the] two of you [Adam Wolanski QC and David Sherborne to] complete submissions, [Nicol J] took a view [it was] not unless either ask[ed to] do so [would Nicol J be] minded to take a break in the middle. Nicol J asked all [to] please [return] at 2.05 [pm] and to terminate the link now.
David Sherborne thanked Nicol J
Nicol J was seen to say “oh God” and then left the hearing. The hearing was adjourned at 1.06 pm.
At 2.05 pm, there were 27 participants watching the virtual hearing and at 2.05 pm a message appeared stating that it was being recorded.
Unfortunately the video and sound weren’t showing (for the person writing notes on what was said) presumably for technical reasons as the hearing (which had been suspended earlier), had to be un-suspended. If the hearing did restart at 2.05 pm, then around three minutes is lost and therefore not included below. This resumed part way through at 2.08 pm.
Nicol J said looking at before lunch.
Adam Wolanski QC said [** unclear **] messaging on [the] 25th [of] February 2015, shortly before [the] Australia incident, Mr [Nathan] Holmes (message 20) borrowed [** unclear **] haven’t also [** unclear **] took too much [** unclear **] tipped it into an envelope, sorry XX [which was] sent on [the] 25th February 2015 at 2.16 am. Adam Wolanski QC said [the] next message 21, sent on [the] same day, also by Mr [Nathan] Holmes to Mr [Johnny] Depp about 5 hours later, what Mr [Nathan] Holmes sa[id] to Mr [Johnny] Depp [wa]s do you hate me? Adam Wolanski QC continued that the message c[a]me back from Mr [Johnny Depp] to Mr [Nathan] Holmes about a minute later.
Nicol J asked to let [Nicol J] get to 22, yeah.
Adam Wolanski QC quoted, “Have you lost your tiny [**unclear but possibly head**]?”, Adam Wolanski QC said maybe a little message back, [**unclear**] didn’t reply [**unclear**].
Nicol J said just a minute, on message 24.
Adam Wolanski QC replied, 24 my whole [**unclear**] ing [** unclear**].
Nicol J said, “I panicked when you didn’t reply”, yeah and then the reply.
Adam Wolanski QC quoted, “a ****ing ******” [** second word censored is a perjorative US English term for the disabled **, first word is censored due to being a swear word] followed by “why would I, you ****ing ******?” [** second word censored is a perjorative US English term for the disabled **] [** unclear **]. Adam Wolanski QC continued with what [to] see there Mr [Nathan] Holmes meant to say his [** unclear**] text, text 24 [** unclear**] is text number 20, Mr [Johnny] Depp hadn’t responded.
Nicol J replied yeah.
Adam Wolanski QC replied in a bit of a panic, Mr [Johnny] Depp hadn’t responded to a text, [Nathan Holmes] confessed to stealing some of Mr [Johnny] Depp’s coke, [** unclear**] “I adore you, you goofy *******” ..[** unclear**]… “we’re all in this together”.
Nicol J said just a minute…
Adam Wolanski QC continued [Nathan] Holmes to [Johnny Depp] “I love you” and message 29 two days later from [Nathan] Holmes to [Johnny] Depp on 27th February.
Nicol J said just a minute, which number [are we] on?
Adam Wolanski QC replied 29.
Nicol J asked this is the 20 what of February?
Adam Wolanski QC replied 27th February, [** unclear**] [Nathan] Holmes to [Johnny] Depp “hello” [** unclear**] half an hour later, [** unclear**] “We should have more happy pills, can you???”
Nicol J replied yeah.
Adam Wolanski QC said that [the] happy pills [were a] reference to MDMA (ecstasy) [** unclear**] reference to get more happy pills [** unclear**], 2 minutes later [he] respond[ed] yes we can.
Nicol J said Mr [Nathan] Holmes respon[ded]?
Adam Wolanski QC said yes, we can, I’m giving them to [** next word is either Steven or Stephen or Stephan **], to send you yay [** unclear **].
Nicol J said just a minute yeah.
Adam Wolanski QC said [in] response [Johnny] Depp [the following words and phrase], “bully”, “response”, “me”, “Nathan” [Holmes], “woo who” [** unclear **] and “34” [** unclear **] ????
Nicol J said just a minute yeah.
Adam Wolanski QC said [that] that we say [that it was] plainly a reference [** unclear**] [Nathan] Holmes asked for agreeing [to] supply ecstasy pills.
Nicol J said to Adam Wolanski QC, “slower”.
Adam Wolanski QC said [the] reference [was Johnny] Depp ask[ed] Mr [Nathan] Holmes [to] supply [Johnny Depp] with ecstasy pills just before [the] incident in Australia during which [Johnny] Depp denie[d Johnny Depp] had in [Johnny Depp’s] possession any pills, taken any pills or talked about pills.
Nicol J replied yeah.
Adam Wolanski QC said next please [was] text number 43.
Nicol J said just wait a moment for [Nicol J] to get to that, yeah 43.
Adam Wolanski QC said no, on the 2nd [of] March, just before the first day of the Australian hostage taking situation as Miss [Amber Heard] describe[d] it.
Nicol J replied yeah.
Adam Wolanski QC said [Johnny] Depp to Mr [Nathan] Holmes, where is the other one? There was 2[**letter is unclear either D or G**] in that jar.
Nicol J said let me catch up. 2G in the jar.
Adam Wolanski QC said the references [were] to grams of coke, are you out, guy only carries 2 a day, caught [with more] than 2 here, 20 years in prison.
Nicol J said just a minute, yeah.
Adam Wolanski QC said [he] can try another guy and pick one more from you, when you pick Malcolm up [**unclear**], I’m going to me[e]t the man now, you will have it when you get here [**unclear**] I’m getting more in the morning.
Nicol J said just a minute… yeah.
Adam Wolanski QC said 47, [Johnny] Depp responds, “go” [** unclear **] wish you had told me that, appears to be a reference at 46 [** unclear **] more in the morning.
Nicol J said 48 from the Claimant [Johnny Depp].
Adam Wolanski QC replied correct, from the Claimant [Johnny Depp] to Mr [Nathan] Holmes [** unclear **] why, wishes [** unclear **] getting more in [the] morning, then Mr [Johnny] Dpp said I gave a bunch away, so he’[d] given some drugs away, then messages follow [Johnny] Depp [with] increasing exasperation, no drugs there and then 50, 51, same trail of text, too late, ****ing give me the ****** numbers, I’ll take care of this **** don’t bother [** unclear **], [the] response then c[a]me back.
Nicol J said to slow down [for Nicol J] [Adam] Wolanski [QC].
Adam Wolanski QC said [Johnny Depp was] exasperated [Johnny Depp] can’t get [the] drugs there and there [** unclear **] [Nathan] Holmes respond[ed], [** unclear **] if not, I will get it and bring it up [** unclear **] and then Mr [Nathan] Holmes moments later at 54, if [** unclear **] don’t make it, can’t get it, someone who works on the film, not a professional dealer. Adam Wolanski QC said [that this was] saying [the] person who supplie[d] drugs [was] not a professional dealer but someone who work[ed] on the film.
Nicol J said just a minute… yeah.
Adam Wolanski QC said then 55 to 58, [a] series of texts in short succession by [Johnny] Depp to [Nathan Holmes], “I don’t want yours” at 59, it’s not mine, I just called the guy, it’s his.
Nicol J replied yeah.
Adam Wolanski QC said then [there was] an exchange [on a] different topic, getting prescription glasses, [before a] return to [the] subject [of] narcotics, at 65 [Johnny Depp] says to me [Nathan] Holmes, “I can get it” [** unclear **] at 67 [** unclear **].
Nicol J said [Nicol J was] trying to catch up Mr [Adam] Wolanski [QC] which one [had Adam Wolanski QC] got to?
Adam Wolanski QC replied 67, My Lord.
Nicol J replied, “67”.
Adam Wolanski QC replied, “68”.
Nicol J said hang on sorry, [Nicol J was] slow. Nicol J said so 67, was the last one mentioned “and other *** I won’t get through you”.
Adam Wolanski QC replied.
Nicol J replied with yeah.
Adam Wolanski QC said 68, “I don’t want his”, [which Adam Wolanski QC described as] he doesn’t want drugs from a particular source, “just ****ing bury it then, leave me to it” which [Adam Wolanski QC thought meant that he was] frustrated for not supplying drugs he wants. Adam Wolanski QC continued with 71, no more, to which [Nathan] Holmes respond[ed] at 72, “I’m sorry you feel that way” followed by “no, you’re not, that’s not part of the job description”, followed by complaining to me. Adam Wolanski QC described this as [Nathan] Holmes [was] being lectured, in [Amber Heard’] evidence [it was a] lecture about drugs that set him off.
Nicol J asked to let [Nicol J] make a note.
Adam Wolanski QC said, “73”.
Nicol J said “Yeah”.
Adam Wolanski QC said [that the] point [Adam Wolanski QC was] making to Your Lordship, this echo[ed with] what Miss [Amber] Heard sa[id] about [that] set [Johnny Depp] off, complaining to him [Johnny Depp], exactly the same complaint about “me” from [Nathan] Holmes – [Johnny Depp was] frustrated at being lectured at about drugs.
Adam Wolanski QC said at 74, then quoted, “just do not want to hear it” followed by “trying to keep the supply coming, it’s not the same here, sorry”, Mr [Johnny] Depp says “I’m a grown” [** unclear**] and [to Johnny] Depp “never judged you, never will”, then “any longer” – Mr [Johnny] Depp [was] enraged [by] Mr [Nathan] Holmes. Adam Wolanski QC said the topic [wa]s supply [of] drugs just a day before [the] events alleged [regarding] drugs [and] Miss [Amber] Heard.
Adam Wolanski QC continued with 83 and said honestly, think good [of] me, because of you [I’m] still in [the] industry, [I] only want you to be happy, [** unclear**], pleading to forgive, [** unclear**] argue whatever I **** well please [** unclear**], ok [the] next at [89] Mr [Nathan] Holmes sa[id] still on 2nd of March why [it] upsets me, “I would die for you”, [** unclear**] Mr [Johnny] Depp respond[ed] I don’t want to depend on others, I’m [** unclear**] unhappy [** unclear**] insane [** unclear**] “the flow of fun stuff will pick up” which Adam Wolanski QC described [as] obviously a reference to drugs.
Nicol J said just a minute, yeah.
Adam Wolanski QC referred to Mr [Johnny] Depp to [Nathan] Holmes at 96, no system, 97, love your ********, that’s what got you an island, ha ha **unclear **, “I promise, it’s coming in”, [** unclear**] which Adam Wolanski QC described as c[ould] only be a reference to drugs.
Nicol J said just a minute, yeah.
Adam Wolanski QC continud with 99, don’t want to risk to you, [** unclear**] [Johnny] Depp, so I can get what I need, no don’t want to put people in weirdness, now to the 7th March [which [wa]s] moved forward 5 days either in, or very shortly after [the] period of [the] 3 day Australia episode, on the final day possibly the second, [Adam Wolanski QC was] not certain on evidence, what [was] certain (Mr [Johnny] Depp to Mr [Nathan] Holmes [was] also may I be ecstatic again [** unclear**] which Adam Wolanski QC described as a reference to ecstasy.
Nicol J said just a moment.. yeah.
Adam Wolanski QC said Your Lordship [Nicol J would] notice again a request for further ecstasy, [** unclear**], then 105, still on the 7th March, need more whitey stuff ASAP [as soon as possible] brother man, which [the defendants] sa[id] must be a reference to cocaine.
Nicol J said just a minute please… yeah.
Adam Wolanski QC continued with and the e-business – that was a message for ecstasy.
Nicol J replied yeah.
Adam Wolanski QC said please I’m [** unclear**] nobody [** unclear**] okie dokie.
Nicol J replied yeah.
Adam Wolanski QC said those [we]re the messages we [the defendants] say [were] shocked [to] have [not] been disclosed, [but] fell within [the] ambit of [the] 10th [of] March Order and ha[d] not been disclosed, [Adam Wolanski QC’s] submission [was that it was] simply impossible to [sensibly] arrive [at the] conclusion [they were] not disclosable and [fell] within [the] ambit of [CPR] 31.6.
Nicol J replied, “yep”.
Adam Wolanski QC said [Adam Wolanski QC had] taken up half an hour, in response to [the] failure to disclose messages being a breach of [the] Order, [** unclear**] in [the] skeleton [argument], [** unclear**] not relevant to [the] Claim [it does] not fall within scope, [** unclear**], not just highly perplexing in light [of] pleading [** unclear**] Claimant [Johnny Depp] not just disclose [to] shed light on drug taking. Adam Wolanski QC said and other incidents, subject to examination, raise[d] a very serious doubt [as to whether the Claimant had] provided disclosure in relation to other issues properly [** unclear**] ground misunderstood [the Claimant’s] duties of disclosure more generally [** unclear**].
Nicol J answered yeah.
Adam Wolanski QC said that [was a] very plain breach of [the] Unless Order, therefore [the] claim should be struck out.
Nicol J asked what’s the evidence [that the] documents [were] in [the] possession or control of [the] Claimant [Johnny Depp] when [the Unless Order was made] in March of this year [2020]?
Adam Wolanski QC said [that the] Claimant doesn’t deny it, it is necessary if David Sherborne sa[id we [defendants] were] wrong and says deny, then we [defendants] will show why [the documents were] plainly in [the] possession [of the Claimant] [which was] Adam Wolanski QC’s understanding and not disputed. Adam Wolanski QC continued also not disputed [was that the documents] f[ormed] part [of the] disclosure [in the] US (United States) libel proceedings therefore [fell within] paragraph 6 of [the] 10th [of] March Order.
Nicol J said right, that conclude[d] your [Adam Wolanski QC’s] submissions?
Adam Wolanski QC referred to [David] Sherborne’s points, [** unclear**] don’t rely, I [Adam Wolanski QC] di[dn’t] need to, if [the] Claimant makes an application for relief from sanctions, [it was] not necessary to draw attention to them, just Australian [** unclear**] that [we] were concerned with today.
Nicol J said yes, now err Mr [David] Sherborne.
David Sherborne said before [we] begin, [to] deal with two said right at the end, not to rely on two other matters, one as a breach and one as incorrect information in February. David Sherborne said [** unclear**] not how he’s started or [the] basis [of the] application made in [** [Jeffrey] Smele? **]’s witness statement, if [** unclear**] won’t rely on them, [** unclear**] save this, [** unclear**] clear allegation [** unclear**] Mr [Kevin] Murphy, the declaration for Ms [Amber] Heard [in the] Australian criminal proceedings, prepared [by an] American lawyer for her, to lose [** unclear**] somehow in [the] control [of] Mr [Johnny] Depp [and be] in breach. David Sherborne said [it was] no surprise that [Adam Wolanski QC] [didn’t] rely, [** unclear**] plainly unstated, as [we] said in [the] skeleton [argument which David Sherborne would] leave to one side.
David Sherborne’s second point [was] before [David Sherborne] start[ed], relat[ed] to what [David Sherborne had] just said to a question [of Adam] Wolanski [QC], as to whether [it was] accepted [the] document[s were] in Mr [Johnny] Depp’s control at the time, [David Sherborne] understood why [it was] asked. David Sherborne continued that time and time again, not only in letter, [but in a] witness statement, [** unclear**] today made again, Adam Wolanski QC repeatedly said [Johnny] Depp chose to withhold and so on. David Sherborne said [it was] beyond doubt [that] despite what [Adam] Wolanski [QC it was] not Mr [Johnny] Depp who did not chose to disclose. David Sherborne said that [Johnny Depp] provide[d] all [documents to the] solicitors, it was the task of [the] solicitors to perform [the] relevant search, that’s why [** unclear**] by Mr [Johnny] Depp in US (United States) proceedings, [the] idea [that Johnny Depp] withheld [wa]s nonsense, the defendants are saying [that the documents] should have been disclosed here [** unclear**] all disclosed in [the] American proceeding, that [was] how the defendants have them.
Nicol J said he understood, [** unclear**] [a] deliberate decision [of] Mr [Johnny] Depp, [** unclear**] Order directed to [the] Claimant.
David Sherborne said [David Sherborne would] take you [Nicol J] to it, going back through it. David Sherborne said that Adam Wolanski [had] not take[n] you through it, in the context of mak[ing] good, taking you [Nicol J] to [the] 6th [of] March Order, [at] tab 12. [David Sherborne] had a hard copy bundle [of the] pre-trial Order made following the pre-trial review at page 137, the number going across [was] like 137 and 139, [a] number of disclosure orders [were] made and refuse[d], not in terms [of] paragraph 3. David Sherborne said [the] relevant one, we’ve [the Claimant] had this disclosure provide[d] to us by [the] original solicitors [and] believe[d] [it was] properly done [by] Schillings (Mr [Johnny] Depp’s solicitors) [who were] now asked to perform [the] exercise.
David Sherborne said [** unclear**] US (United States) proceedings, [** unclear**] written from Amber [Heard who] provided consent, we were saying we need her [Amber Heard’s] consent to be able to provide you with her documents [** unclear**] within 48 hours, [the] witness statement signed from him personally, all [the] US (United States) libel documents to Schillings, [the] second stage within 72 hour[s], step para 3(a) above, [Mr Johnny] Depp’s witness statement, everything in [the] US (United States) libel claim, [and] Schillings in a witness statement that [was] verified by [a] statement of truth.
David Sherborne said [** unclear**] not yet disclosed, [it was] ascertained which [were] within [the] scope of CPR (Civil Procedure Rule) 31.6, insofar [and] not hitherto [fell] within [the] 31.6 review performed by Schillings in (b) found [the documents] not disclosed by [Schillings] previously under 31.6 should disclose all by list and provide copies within 72 [hours]. David Sherborne said first [Johnny] Depp, [then] Schillings, [then] review, [if it] ha[d]n’t [been] disclosed then disclose it, [with a] reason[ed] explanation and detail. David Sherborne said it need[ed] to be put in [the] context [that] if [the Claimant had] to seek relief, bear in mind [it was] just 11 working days from the trial, what was happening [was] Schillings [were] having to review thousands and thousands of documents, if it hadn’t [** unclear**].
Nicol J said [about the] pressure of time, why Schillings asked for an extension [and] why [Schillings were] granted an extension.
David Sherborne said [it was a] bigger [task] than imagined, an extension was applied for on the 10th of March, two days afterwards in real times, look at what [was] ordered, [but] David Sherborne wasn’t there, Miss [Kate] Wilson was there, as was [the] Claimant’s solicitor Schillings, [see] on page 140 of tab 13.
David Sherborne [continued with points about the] Order, [David Sherborne] referred to page 141 and explained that when [Schillings] saw the task was enormous, it was not just one of disclosure but the task[s] between number 3 and 8.
Nicol J wanted to distinguish between whether [there was] a breach and whether [there should be] relief from sanctions, [to Nicol J] it sound[ed] rather as though [the] point [David Sherborne was] now developing [was] relevant if [Nicol J] did [find] a breach, if [David Sherborne was] stopped prematurely then please [could David Sherborne] continue.
David Sherborne said [that it was] important to suggest a number of things and about the nature of the breach given, [he suggested that] Nicol J [would] take an assiduous note of what was said.
Nicol J said if the point [was] part of what [David Sherborne was] submitting, [Nicol J] c[ould] say that but [** unclear**] as [Nicol J] just mentioned you [David Sherborne] were keen to separate out [the] issues [as to] whether [there] was a breach of the order, [** unclear**] [and] if relevant relief from sanctions.
David Sherborne said [there was a] need to establish first a breach [** unclear**], [it was] easier if [David Sherborne took] quickly [** unclear**] number of provisions [** unclear**] [** [Jeffrey] Smele**] say at [the] witness statement [** unclear**] made [the] Unless Order because of previous deficiencies, had that gone in a witness statement three days ago rather than yesterday [24th June 2020] afternoon, Your Lordship would have received [it] from your Clerk. David Sherborne said [it was] quite clear [they] made it because of the imminence of the trial date [** unclear**] or the 13th March, only 5 working days before trial, it [wa]s a short point but it [wa]s very important that [David Sherborne] sa[id] that an Unless Order made at paragraph [** unclear**] in relation to disclosure under paragraph 3 of the Order.
If David Sherborne turned on [what Adam] Wolanski [QC] took you [Nicol J] to, purported compliance with that Order and [the] witness statement of Miss [Joelle] Rich found at…, sorry [David Sherborne] thought it was attached, just give [David Sherborne] one moment, attached to Mr [** [Jeffrey] Smele’s?**] witness statement, page [** unclear**] of tab [** unclear**].
Nicol J said just a minute please, [** unclear**] which page?
David Sherborne replied electronic page [** unclear**] but page 612 of mine [** unclear**].
Nicol J said just a minute [** unclear**], yes and [Nicol J had] now got Joelle Rich’s witness statement, which paragraph do you want me to look at please?
David Sherborne answered paragraph 4, paragraph 3 to give context, [** unclear**] “confirmation of certain matters. As acted through Schillings necessary steps, best placed to provide detail of what is done”. David Sherborne said that if Your Lordship f[ound] [a] breach, what precisely, a breach of which paragraph said to be breached? David Sherborne said why [Adam] Wolanski [QC] kept saying [Johnny] Depp withheld the texts because [it was] found [to be] so profoundly damaging to [the Claimant’s case], [** unclear**] has on multiple occasions committed serious [** unclear**] assaults on Miss [Amber] Heard [** unclear**] not just [a] basis to be a breach, but what to look at paragraph 5 [where] the stages [of] the mechanism [were] set out. David Sherborne pointed out [that it was] verified by [a] statement of truth, [there was] access to all US (United States) libel claim documents, that’s 3(a) and no suggestion that Mr [Johnny] Depp did not do so [** unclear**] Schillings and access [to] relevant folders [** unclear**] by [** unclear**] non-parties’ documents [were] subject to a protective order [** unclear**] at Miss [Amber] Heard’s request to retain confidentiality [** unclear**] now conducted [by] Schillings [and] ascertained what [was] within 31.6 [and] disclose[d] all such documents to the defendants, that it the obligation under 3(b) and 3(c).
Nicol J said [** unclear**] met by [** unclear**].
David Sherborne said [David Sherborne] assume[d the] documents disclosed by [Johnny] Depp in [the] US (United States) [were] not considered falling within 31.6 by Schillings [which was] said to be the breach. David Sherborne said what ha[d] become clear and how [Adam] Wolanski [QC] ended submissions to you [Nicol J] [was a] fundamental difference [between the] Claimant’s team and defendants’ team. David Sherborne said that if Nicol J does not strike out the claim, then [the defendants would] apply [for an] order [for] all documents [about] drink, drugs [that are] relevant [which David Sherborne] sa[id] was not right, [it was] important [to be] up front [and] make clear [what is] said to be [a] fundamental concern of the defendants’ way [** unclear**], Mr [Johnny] Depp admits [he] took drug and admit[ted] [Johnny Depp] drank during this period. David Sherborne said during this period…
Nicol J asked Sherborne to slow down, the Claimant admit[ted] [he] took drugs?
David Sherborne [**unclear**] and drank, in [the] witness statement [Amber] Heard admit[ted] [to the] same albeit to a lesser extent, taking drink and drugs [was] not an issue in dispute because [it was] admitted.
Nicol J said to take [Nicol J to the] passage [David Sherborne] was referring to.
David Sherborne said [it was] set out in [the] note, [Nicol J should look] at tab 19, page 220.
Nicol J said just a minute, [Nicol J] had got tab 19 (second witness statement, which paragraph?
David Sherborne said start at paragraph 20, if [David Sherborne] may just explain [the] Claimant [was] very upfront and frank [on] his position [about] taking drug[s] and drink, [it was] not [the Claimant’s] position [that he] never took drugs and never drank.
Nicol J replied.
David Sherborne said it was hard to tell whether Nicol J was looking at me [David Sherborne].
Nicol J said that remote hearings require patience.
David Sherborne said [it had] been well reported and open, the challenges [with] alcoholism and addiction [that] started while [**unclear**] [was] still a child [** unclear**] defendants [were] not accurate [Amber] Heard [was] a regular heavy drug user and drank far more alcohol.
Nicol J asked [David Sherborne to be] more specific about addiction?
David Sherborne referred to 8, the paragraph [about] addiction to roxies (an opioid prescription painkiller) [and] explain[ed] how he suffers from that addiction.
Nicol J said that in 22, taken other drugs in my life and other drugs during [the] course of [the] relationship…
David Sherborne said that [wa]s his point, [the Claimant did] not deny consuming drugs or consuming alcohol, [but] denied 14 alleged incidents. David Sherborne said that [the Claimant] d[id]n’t deny taking, [but] sa[id it] didn’t make [him] get violent, over the page, David Sherborne would leave Your Lordship to get there.
David Sherborne continued so, if Your Lordship over the page, [looked at a] couple of examples about first, then that talk[ed] about the release of the Lone Ranger in [** unclear **], rehab, very occasional lapses, [the] use [of] marijuana and wine whereas Ms [Amber] Heard use[d] [** unclear**].
Nicol J said just paus[ed] on that, [the] paragraph admitting own use of marijuana, and drinking, and wine contrast[ed] [with Amber] Heard[’s] cocaine, ecstasy, MDMA and others.
David Sherborne said at times [they] took together, but [it was] not uncommon [to] consider [Amber] Heard [to have] an addiction to both cocaine and amphetamines [** unclear**], both parties taking drugs and consuming alcohol, [there was] a dispute [to the] generality of it, [but it] c[ould]n’t be relevant about how much and when in terms of [a] general issue.
David Sherborne said this is what [was] conditioning [the] suggestion of [a] breach, they believe anything [that] referred to drug and drink [was] relevant, we say absolutely not, the fundamental point [has] been thrown up by this, [the] defendants intend to make an application for those texts and communications, [** unclear**] 25 took drugs together, [** unclear**] 26 tried not to drink alcohol [** unclear**] [Amber] Heard whisky shot in front of me [** unclear**] wanted me to procure drugs for her [** unclear**] [Amber] Heard bombard [him] with requests to stop drinking, I not sought to deny [** unclear**] careful generalistic, sweeping statements [** unclear**] 14 incidents [** unclear**] enormous amount to [** unclear**] that’s why disciplined [in CPR (Civil Procedure Rule) 31.6], otherwise every single point as opposed [to] physical assaults [** unclear**] otherwise one get’s lost, that’s 27 [** unclear**] then 28.
Nicol J said just a minute, read 28, [Nicol J had] read 28.
David Sherborne said that’s what [was] said, not in dispute, drug taking and taking of alcohol [were] not in dispute, [but it has] to [be] confine[d] to [the] pleaded allegation, what is the requirement of [CPR] 31.6? David Sherborne took [Nicol J] to the White Book, [David Sherborne] appreciated [that Nicol J was] well aware of these points so in play in this application, [does Nicol J have] the 2020 addition volume 1?
Nicol J said [Nicol J had] got 2019 at [Nicol J’s] home where [Nicol J] was conducting [the] hearing from.
David Sherborne said 31.6.3, [David Sherborne was] going to take Your Lordship to….
Nicol J said just a minute *there was a pause at this point* [** unclear**] the editorial commentary at 31.6.3.
David Sherborne said should be headed [** unclear**].
Nicol J said four documents.
David Sherborne said [the] party’s own document category 2, which to a material extent adversely affect a party’s own case or support another party’s case or [a] relevant document [that] don’t fall into categories of [** unclear**] or two, don’t obviously support or undermine, although relevant may not be necessary [** unclear**] [the] need for some proportionality, the train or inquiry refer[red] to Peruvian Guano [(1882) 11 QBD 55] [** unclear**] or may damage that of [** unclear**] [the] opponent as made clear [in] rule 31.6, standard disclosure within categories 1 and 2 [were] not [** unclear**] or Peruvian Guano [(1882) 11 QBD 55] [** unclear**]. David Sherborne took [Nicol J] to case[s] all based on case[s] shared [and] cited in [the] White Book, [** unclear**].
David Sherborne said more important in [David Sherborne’s] submission [was] whether sub paragraph (a) or (b) of [CPR] 31.6, whether categories 1 or 2 [were] to be judged against statement of case pleadings, not references elsewhere [in] witness statements, [** unclear**] if [** unclear**] must be disclosed. David Sherborne warned that it [was] the pleaded issue that [** unclear**] [and] why [it] ha[d] to be very specific, [** unclear**].
David Sherborne said he [did]n’t know whether everyone [was] suffering [from the] same amount of heat [as the] doors [were] close[d to cut down] on extraneous sound, [David Sherborne] ask[ed] for 5 minutes to cool down.
Nicol J said [Nicol J] was keen to conclude [that] afternoon and allow enough time [for Adam] Wolanski QC [to] reply.
David Sherborne said [that David Sherborne] hope[d] so.
Nicol J said [Nicol J was] going to insist the hearing complete[d] [that] afternoon.
David Sherborne said [David Sherborne was] not entirely sure when [Nicol J] intend[ed] to rise.
Nicol J [said to] take a 5 minute break, [Nicol J was] sure everybody [would be] appreciative, return in five minutes time at 3.25 pm, [Nicol J was] going to terminate [Nicol J’s link now].
[The hearing was adjourned.]
[The hearing resumed at 3.30 pm with around 27 participants on the call.]
Nicol J said [Nicol J had] got [David Sherborne].
David Sherborne answered yes.
Nicol J said [Adam] Wolanski [QC Nicol J] can hear, not see you.
Adam Wolanski QC said [Adam Wolanski QC] can turn on video.
Nicol J said where were we?
David Sherborne [wanted to] take [Nicol J] to the Court of Appeal in the Shah case [[2011] EWCA Civ 1154]. David Sherborne said that if [Nicol J] ha[d] [the] White Book, paragraph 1 [in a] damages claim, two claimants against a bank [that was] suspected [of] transactions [that] concerned criminal property. David Sherborne said onto paragraph 7, the principal questions raised were from revealing the names [of those who] reported [suspected] money laundering. David Sherborne said that the positions on anonymity on PII [public interest immunity] [the] Judge below said yes, we’re obliged to reveal the names [in] paragraph 8 [and] gave a form in which it should be done. David Sherborne didn’t need to go through the facts, but David Sherborne said [it was] pick[ed] up at [paragraph] 18 very briefly [to] see what the bank disclosed [which was a] series of document[s of] redacted names of employees in [paragraph] 20. David Sherborne said whether names were [to be disclosed], the relevance tests [were] in Taylor v Anderton [[1995] 1 WLR 447] which [may be] familiar to those before [the] CPR [Civil Procedure Rules] came in, that time a Peruvian Guano test applied to disclosure [** unclear**].
David Sherborne said [that it was an] important pre-CPR [Civil Procedure Rules] test [that it was] felt fell into error [** unclear**], one intent [of the] framers [was] to reduce the scope of discovery in civil actions, why not look at disclosure cases [that] predate CPR 31.6 of the CPR? David Sherborne said [that] the Court of Appeal sa[id that it was] notable [that the] relevant [** unclear**] [does] not appear in rule [** unclear**]. David Sherborne said [this was] confined only to listed categories of documents, [it] may be convenient to use, [but it was] relevant [and] important to stick [to] carefully chosen wording of [the] rule, [which was] why [it] fell into error, that [was] paragraph 25, see in [paragraph] 27 pick[ed] [the] question, [the] ultimate question of [** unclear**] must be wrong in accordance with the Peruvian Guano [(1882) 11 QBD 55] test and [the] test under CPR [** unclear**].
David Sherborne said [the] charted landscape of CPR, the whole point of CPR, [which was] particularly acute, one approach, [the] much narrower one [was] confined only to these two categories and based on the pleaded case as say in [** sounds like Paddock**] go to [paragraph 32].
Nicol J said paragraph 32.
David Sherborne said [that the] Court of Appeal emphasise[d] Peruvian Guano [(1882) 11 QBD 55] [which was] superceded, [so it] must fall [into] one of [the] categories in [CPR] 31.6, [** unclear**] access to justice progenitor test [** unclear**] what Lord Woolf said.
Nicol J said paragraph 32.
David Sherborne continued with what [was] recited in the White Book, the recommendation at 33, was a standard limit (categories 1 and 2) supplemented by exceptional cases [** unclear**] reproduced in [the] White Book [** unclear**] in this case, [to] apply the narrow scope and concluded at 39, phrases such as “at least potentially” and [to] add the words “at least potentially” [** unclear**] Peruvian Guano [(1882) 11 QBD 55]. The test [there David Sherborne] said [was] they said should be confined more narrowly, going to paragraph 50 of Justice Lewison…
Nicol J said yeah.
David Sherborne quoted, “might lead to a train of” [**unclear**] “Peruvian Guano test” [**unclear**] “stringent requirements of Part 31.6” sets [out the] require[ments] that [are] expected to apply [to the] narrowness of obligation [** unclear**] proportionality [** unclear**], [to] start with [the] pleadings go to [the] reamended Defence at tab 8.
Nicol J said just a moment, yeah.
David Sherborne said see [the] part [of] [** [Jeffrey] Smele **] [in] support [of the] application notice [was] A(8) at page 96?
Nicol J said just hold on a minute… yeah.
David Sherborne said one of the 14 incidents Your Lordship needed to determine, one ha[d] to base on [the] Lucas-Box meaning, now called the truth meaning, [a] paragraph central to [the] allegation whether Mr [Johnny] Depp subjected [Amber Heard] to a 3 day ordeal describe[d] as a “hostage like situation”, said to [have] taken place on 3rd [of] March. [** unclear**]
David Sherborne said after the Claimant [was alleged to have] t[aken] out a bag of ecstasy, [the Claimant was alleged to have]
[** unclear**] pushed her [Amber Heard], slapped her [Amber Heard] [** unclear**] [and alleged to have] stayed up all night, taking around 8 pills and taking alcohol. [** unclear**] David Sherborne said [the] allegation [was] taking drugs, [** unclear**]. David Sherborne said [the] following morning she [Amber Heard] sa[id], he [Johnny Depp] became physically abusive [** unclear**]. David Sherborne [said] it [had] moved to [the] day before in [the] latest drafts [** unclear**].
David Sherborne said she [Amber Heard said] he [Johnny Depp] took more pills in front of her [** unclear**] and [Amber Heard said] [Johnny Depp] shoved [her [Amber Heard]] against [a] fridge. David Sherborne said [Amber Heard said she] screamed, [and was] grabbed by [the] wrist, attached her [** unclear**].
David Sherborne said still in A(9), [** unclear**] shoved and pushed to [the] ground [** unclear**], handed her a liquor bottle [** unclear**] into a ping-pong table [** unclear**] grabbed by [the] hair and so on [and] grabbed by [the] breast. David Sherborne said grabbed by [the] neck, slammed [into] a giant counter top, slashed by broken glass and slammed until smashed. David Sherborne said [Amber Heard said she] only made her escape and barricade[d] herself [** unclear**] [but] claim[ed] the Claimant urinated over the house.
David Sherborne continued [with the] three day litany [of] [** unclear**] Mr [Johnny] Depp, [** unclear**] and David Sherborne said [it was] utterly implausible [and] didn’t happen. [** unclear**] David Sherborne said [the] central allegation [** unclear**], but what [was] right at hand, did he [Johnny Depp] commit a whole series of physical assaults over a three day period? [** unclear**] David Sherborne said why [they] need[ed] to apply proportionality, what [was] really important to understand it [was] said [that] Ms [Amber] Heard confronted [Johnny] Depp [after she [Amber Heard] saw him [Johnny Depp] taking out [the] bag and [she [Amber Heard]] saw him [Johnny Depp] take it [** unclear**] taking the pills.
David Sherborne wanted to underline just one small part, [a] 3 day period, one of 14 allegations [** unclear**] she thinks [** unclear**]. David Sherborne [said that] one thing [that was] undeniable [was that] Mr [Johnny] Depp lost his finger [** unclear**]. David Sherborne said that if [Nicol J] turn[ed] to tab 9 [Nicol J would] find [the] re-amended reply
Nicol J said yeah.
David Sherborne said page 113, sorry 112.
Nicol J asked which paragraph of [the] re-amended reply?
David Sherborne replied where [it] deal[t] with [the] 3 day ordeal.
Nicol J replied.
David Sherborne said he date[d] this [as] the 8th of March. [** unclear**] Mr [Adam] Wolanski [QC] got tied [** unclear**] up looking at the dates [** unclear**] but hospital records [show Johnny Depp] lost [his] finger [** unclear**] even though [the] security men [** unclear**]. David Sherborne said his [Johnny Depp’s] version of the argument [was] very different [and] explain[ed they] had [an] argument over the fact [** unclear**] wanted to enter into a post-nuptial [** unclear**]. David Sherbourne said the discussion [about the] [** unclear**] nuptial [** unclear**] refused to give [in], [** unclear**] won [the] argument [** unclear**] post-nuptial on [the] 8th of March. David Sherboure said [** unclear**] prolonged and extreme rage [** unclear**] retreating [** unclear**] [which echoed] what [was heard] on [the] tapes, every time [there was an] argument Mr [Johnny] Depp [ran] away. David Sherbourne said about her [Amber Heard] doing her retreat to [the] bathroom.
David Sherborne said [Johnny Depp had] not had a drink in over a year, [Amber Heard] followed him, screaming abusive language [** unclear**] not [an] attack [in] any of [the] ways described. David Sherborne said [** unclear**] sought [to] defend himself [** unclear**]. David Sherborne said the pattern of arguments they had, [** unclear**] poured glasses of vodka [and] drank them. [Johnny Depp] admits [the] time [Johnny Depp] stopped being sober, [David Sherborne didn’t] know whether [to] suggest [** unclear**] sobriety relate[d] to alcohol.
David Sherborne said, [** unclear**] admits upset [** unclear**] threw at head [** unclear**] paused, had another drink [** unclear**]. David Sherborne said how [the] finger [was] lost, [was the finger] smashed against [** unclear**] fracturing [the] bones, [** unclear**] put [a] cigarette out [** unclear whether in or on] right cheek [** unclear**]. David Sherborne said severed finger, [** unclear**] photo and [a] cigarette burn [** unclear** whether in or on] right cheek. David Sherborne said that [** unclear**] [was] taken to [** Malcolm Connolly? **] taken to [the] hospital for treatment to [the] hand, that’s why there [were] hospital records.
Nicol J said looking at the time, [Nicol J] had want[ed] to complete this afternoon, Nicol J ask[ed] you [David Sherborne] to conclude your submissions by 4 o’clock.
David Sherborne said [he] won’t have done, [it was] important [to] show [the] pleadings trying, to [David Sherborne thought] when Wolanski started, [David Sherborne] would go as quick as [David Sherborne] could as an advocate, [but David Sherborne] can’t do justice to [the] arguments if [David Sherborne] was confined to just 8 minutes.
Nicol J said [he would] give [David Sherborne] a little flexibility. Nicol J said [it would be] helpful if [David Sherborne] ke[pt] [David Sherborne’s] points as to whether [there had been] a breach of the Order.
Unnamed speaker said why [it was] important to understand the pleadings [** unclear**] denials [and] whether [** unclear**] fall foul [** unclear**] denial that Miss [Amber] Heard found a bag of MDMA, denial [that Johnny Depp] took [MDMA], that [** unclear**] found a bag and that they had an argument about it.
Unnamed speaker continued [** unclear**] before [** unclear**] go to [the]texts, [** unclear**], Your Lordship [was] taken to [Johnny] Depp’s witness statement at tab 19, paragraph 54, paragraph 54, page 228.
Nicol J said 54 did you say?
David Sherborne said page 228 [had] very specific denials [** unclear**] he didn’t take the drugs, [** unclear**] somebody who has said [he] had challenges [with] drink [and] drugs, [it] d[id]n’t mean [he [Johnny Depp]] wo[uld]n’t ask [** unclear**]. David Sherborne said [he meaning Johnny Depp] didn’t take drugs [** unclear**] [and] no text show[ed] he [Johnny Depp] took drugs, let alone obtained them. David Sherborne said [of] course there [we]re ones he asked [for which was] not surprising for someone [with] the background Johnny Depp admit[ted] to. [** unclear**] denie[d] [that] she found this bag [** unclear**] she [Amber Heard] didn’t see him [Johnny Depp] take out a bag, therefore didn’t have an argument [** unclear**] can’t be anything that may suggest he asked for it. David Sherborne said [it had] got to be documents that [we]re relevant, that support[ted] [the] challenge to denial. David Sherborne wo[uld]n’t take [you (Nicol J)] to [the] sobriety paragraph. David Sherborne said [they] don’t [the] understand points, [Johnny] Depp goes [on] over pages and pages how inconsistent [** unclear **] [had] heard [Your] Lordship’s findings on only a very small part. David Sherborne said those [we]re the pleadings, the witness statement [Nicol J will] have seen of Mr [Johnny] Depp, Ms [Amber] Heard’s witness statement at tab 20 para 103 and following page 282, [does] Your Lordship have it?
Nicol J [said Nicol J had] got [the] witness statement of Miss Amber Heard.
DAVUD Sherborne said what [it] sa[id] in 103, at some point [Johnny Depp] took out a bag of MDMA, she [Amber Heard] believe[d] he took it. David Sherborne said about cocaine on the bar, drinking Jack Daniels, he [Johnny Depp] says he [Johnny Depp] wasn’t as [it was] vodka [** unclear**]. David Sherborne said Your Lordship can’t deal [with the] central allegation [that Johnny Depp] took MDMA, [it] deal[t] [with] all of it [and] respond[ed] in [the] third witness statement [at] tab 51.
Nicol J asked which paragraph?
David Sherborne said paragraph [** unclear**] and following, page [** unclear**], there you see, [it] goes through all this, [this] [wa]s his [Johnny Depp’s] responsive [** unclear**]. David Sherborne said [Johnny Depp] broke sobriety [** unclear**] verbal abuse [** unclear**] deal[t with the] fact [that the] date proposed [for] MDMA taking [has] moved from the 3rd of March [** unclear**], [the] vast majority [of the allegations] [we]re [of] physical violence, did take place not [** unclear**]. David Sherborne said was [t]he behaviour conditioned by MDMA? [** unclear**]
David Sherborne said [the] texts d[id] not suggest [** unclear**] actually [suggested he [Johnny Depp]] took anything. David Sherborne said [it was] not [a] Peruvian Guano [(1882) 11 QBD 55] case. David Sherborne [took Nicol J] to [the] test, [the] last important [thing] to note [was the] way [**unclear**] put it in [the] letter. David Sherborne said [** unclear**] [David Sherborne] [didn’t] have time [to go through] every single document [that the defendants] sa[id] contradict[ed] Mr [Johnny] Depp’s evidence at paragraph 7, Adam Wolanski QC sa[id] read it quick[ly] for Your Lordship’s note. David Sherborne said [** unclear**], “Was at the very least seeking to obtain drugs from Mr Holmes and had in all probability had obtained and taken them” – [which] gave a lot of interpretation, no doubt put on [at the] trial at cross-examination [** unclear**]. David Sherborne said it was not Peruvian Guano [(1882) 11 QBD 55] [** unclear**], not the test, not based on pleading [and] c[ould]n’t [be] ma[d]e good [as] [** unclear**] [the] pleadings focussed on taking MDMA, and found the bag or had [an] argument. David Sherborne said no text show[ed] [Johnny Depp] obtained the MDMA, let alone he [Johnny Depp] took them, [** unclear**] the time, [David Sherborne didn’t] want to fall foul of Your Lordship’s guidance. [David Sherborne didn’t] have [the] time [to] take [Nicol J] through all of them [** unclear**].
David Sherborne said [in] submissions [we] say [Adam Wolanski QC was] very careful [to] overlay on the top [that Adam] Wolanski [QC] put on [the] texts. David Sherborne said [with the] greatest respect, with the benefit [of] hindsight and draft[ing] a cross-examination around, it [** unclear**] about [the] document [that] contradict[ed] the defendants [claim that the] Claimant den[ied] [the Claimant] took MDMA, denie[d] [the] bag [** unclear**], use [of] drugs, asking [for] drugs [is] irrelevant [as it was] not in 31.6 [** unclear**].
David Sherborne said, otherwise, [** unclear**] extensive disclosure [on] both sides [on] drink [and] drugs. David Sherborne said [to] find [the] text behind tab 33, [David Sherborne had been] told [David Sherborne] had 1 hour [and] 20 minutes at 4 pm and Mr [Adam] Wolanski [QC] had [had] an hour and a half, [David Sherborne was] not trying to cavil. David Sherborne said [** unclear**] the 3rd of March, [** unclear**] we say didn’t start till [the] 8th of March, banter about drugs, Mr [Nathan] Holmes wanting drugs [** unclear**]. David Sherborne said [it was] common banter [and] nothing to suggest [** unclear**]. David Sherborne said [that] [Adam] Wolanski [QC was] reading a lot in [and] trying to tell [Nicol J] what pills meant.
David Sherborne said [it did] not really assist [to] superimpose, [that was a] matter for cross-examination – not if [the] allegation [of a] breach of the rules [was] made against a firm of solicitors, [there were a] lot of little points, [which] start[ed] on 43.
David Sherborne said see [Adam] Wolanski [QC], [David Sherborne said I] don’t want anything [that] seems to suggest where [to] get to on 44, where [Adam] Wolanski [QC] got to [the] heart there. David Sherborne said he [Adam Wolanski QC said] talking about cocaine – not cocaine [Adam Wolanski QC] said allegation [** unclear**], nothing to do with cocaine. David Sherborne said [the text about] meet[ing a] man, have it when [he] g[o]t here, getting more in [the] morning [is a] lot of talk.
David Sherborne said getting it [versus] asking, that’s the critical step [Johnny Depp]. David Sherborne said [that Johnny Depp] has to get it and take it [to] have to adverse[ly] [** unclear **]. David Sherborne said it affect[ed] very specific denials, that’s what the texts have to affect, then in 53 to 54 references to, “Where are you now?”, “don’t want yours”, “don’t want somebody else’s”, [but Nicol J was]n’t taken to 61 to 63 [where] [Johnny] Depp says “I don’t want that” [** unclear**], “I don’t want his” at 68, “just ****ing bury it”.
David Sherborne was very sorry to say [that it was] not enough to establish in contradicting. David Sherborne said [when the defendants] want[ed] to make a case [that] ask[ing] [for] drugs, when [a] heavy user [** unclear**]. David Sherborne said no one denie[d] taking drugs or asking [but] this is whether drugs [were] taken and [whether the] effect [of the drugs] cause[d] them to be violent. David Sherborne said [** unclear**] over [the] page 73 to 74, [the] incident [did] not happen till [the] 7th to [the] 8th, here he is [the] day before being enraged.
David Sherborne said not with [the] timing, wrong [by] 5 or 6 days before [it was] said to have [** unclear – dibs?**], these texts back and forward working out a system [** unclear**]. David Sherborne said trying to placate Mr [Johnny] Depp brought them, got them, most importantly I took them [** unclear**] I can’t believe Amber [Heard] [** unclear**] me bag in hand, those [we]re the tests [that] adversely affect the denials not these.
David Sherborne said Mr [Johnny] Depp 107, sorry 105 that one [Adam] Wolanski [QC] said several days after Ms [Amber] Heard’s case all, [** unclear**] says [wa]s just need some more stuff, all [Mr Nathan] Holmes sa[id] is hokey dokey, placating someone who ha[d] a problem with drugs [** unclear**]. David Sherborne said this is what would have to be put, [** unclear**] in all probability did obtain them and take them.
David Sherborne said [David Sherborne said] don’t fall within [CPR] 31.6, [David Sherborne] suspect[ed] [David Sherborne had] gabelled through, [but] need[ed] [to] concentrate [on the] real issue. David Sherborne said, are [the] defendants saying every text relating to drinks or drugs [was] relevant [was] not an issue in dispute in [the] pleadings. David Sherborne said [** unclear**] just a second, [David Sherborne needed to] check [with David Sherborne’s] team [which] t[ook] [us] to exactly the same amount [of] time Mr [Adam] Wolanski [QC] had, [David Sherborne had] nothing to add My Lord.
Nicol J said, yes Mr [Adam] Wolanski [QC]?
Adam Wolanski QC said [** unclear**] narrow understanding of [the] duty of disclosure, [Adam Wolanski QC] express[ed] concerns [** unclear**] mean[t] what withheld. Adam Wolanski continued [** unclear**] whether or not [it] adversely affect[ed a] case [** unclear**] that case [was]aptly met. Adam Wolanski QC said it affect[ed] Mr [Johnny] Depp’s case whether [he] had drugs [in] Australia.
[** unclear**] Adam Wolanski QC said secondly [it] adversely affect[ed] the case if he [Johnny Depp] and Miss [Amber] Heard talked about drugs and whether [Johnny Depp] took drugs during Australia period [** unclear**] seeking more drugs.
Fourth Adam Wolanski QC said Mr [Johnny] Depp’s case whether [** unclear **] enraged when Miss [Amber] Heard raise[d the] topic [of] drugs, rather [than by] talk of a pre-[** he probably meant post not pre **] nuptial [agreement] and whether [this] affect[ed] memory of [the] event. Adam Wolanski QC said [if it was the] case Mr [Johnny] Depp [was] taking drugs [it might] adversely affect memory afterwards [** unclear**] [and was] clearly within [the] ambit [of] [** unclear**].
Adam Wolanski QC said which part of [the] Order [was] breached [was] simply in paragraph 3c, paragraphs 5 and 10 of [the] 10th March order [** unclear**], through solicitors, [it was] disclose[d] in the US (United States) libel proceedings, Adam Wolanski QC would not say any more because Adam Wolanski QC [would be] repeating submissions [** unclear**] very clear breach [** unclear**] any breach will do, this breach [** unclear**].
Nicol J said right, thanks both very much, what [Nicol J was] going to find particularly given [the] time [was to] reserve [Nicol J’s] decision. Nicol J hope[d] to get it to you [Adam Wolanski QC and David Sherborne] extremely quickly [and Nicol J] aim[ed] to get out [it out] tomorrow [Friday 26th June 2020 but] c[ouldn]’t guarantee [that would] be the case and errm, if [Nicol J found] that there [had] been a breach as [Nicol J had] said [Nicol J would] want and expect any application on the Claimant’s part to be made extremely quickly and [Nicol was] going to have to be more specific [and] ask Mr [David] Sherborne what in practical terms [was needed to] make [an] application for relief against sanction?
David Sherborne said [David Sherborne] presumed [they would be] provide[d] with a draft judgement.
Nicol J said [there would be an] opportunity [to] make typographical corrections, arrangements [for the decision to be] handed down for distributions to electronic databases, for [** unclear**] hand down can take place quickly.
Nicol J asked for regard [for] time for any application [for] relief from sanctions from [the] draft of [the] judgement simply because [it was] so close to trial and trial preparation was emphasised.
David Sherborne said [that] if [a] draft [decision found there] was a breach, then [an] application [would be made] very quickly. David Sherborne apologise[d that David Sherborne had kept] ask[ing] Your Lordship questions, potentially there [were] other applications, [it] just depend[ed] on [Nicol J’s] diary. David Sherborne apologised making th[o]se sorts [of] enquiries, if [a] hearing [was to be] arranged on Monday [29th June 2020] [and] hand down of [the] judgement, it [was] necessary [for an] application for relief [from] sanctions if [a breach was found]. David Sherborne said and other [thing that] need[ed to be] dealt with now, Mr [Kevin] Murphy’s witness statement[** unclear**].
David Sherborne said well [that] be might as well, [it] should be heard [at the] same time [as] any relief [from] sanctions, as well as [any] third-party [application] against Ms [Amber] Heard. David Sherborne accept[ed] service [could be] effect[ed] without any unnecessary [delay and] also be heard on Monday. David Sherborne said [that] then [the] position advance applications intend to [be] made, [David Sherborne didn’t] know [how it] sits within planned commitments for Monday?
Nicol J said the question [Nicol J] asked [David Sherborne was] what would be [a] reasonable time after [the] draft judgement for [an] application [for] relief [from] sanctions yo feelings inside
David Sherborne said answered in practical [terms], the application [would be made] within 24-36 hours [from the] date when [there was] delivery [of the] draft, if delivered on a Saturday, [it was a] little bit more difficult [** unclear**]. David Sherborne said without instructions, as [in the] world [of] electronic application, say within 36 hours [but to] endeavour to do [it] quicker, [** unclear**] have [a] hearing on Monday if [it] says [** unclear**] [David Sherborne would] ensure [the] application [was] issued with supporting evidence [** unclear**] or in time to be dealt with [** unclear**].
Nicol J said speaking hypothetically, that the draft of [the] application and any evidence in support [would] need to be served within [that] sort of time period [David Sherborne was] talking about, even if solicitors [were] not physically able to get to Court [** unclear**]. If the defendants have a draft of [the] application notice and signed witness statement[s] from [your (David Sherborne’s)] team they [the defendants would] know what to shoot at.
Nicol J said to Adam Wolanski QC, [was Adam Wolanski QC] still available around [then and] what [did Adam Wolanski QC] say [to] any application [for] relief [from] sanctions within 36 hours at latest [after receipt of the] draft judgement?
Adam Wolanski QC said, “We agree.”
Nicol J said right, [Nicol J] will need to investigate whether a hearing [was] possible on Monday [29th June 2020], if Monday [29th June 2020] is possible [Adam] Wolanski [QC were you] free on Monday?
Adam Wolanski QC answered, “Yes I am.”
Nicol J asked and does it make sense [for] your [the defendant’s] team [to] deal with all outstanding matters at that hearing?
Adam Wolanski QC said let me take instruction, [but Adam Wolanski QC] suspect[ed] strongly [that the] answer [was] yes.
Nicol J said [Nicol J] would encourage those really, really keen [** unclear**] intruding [on] trial preparation.
Adam Wolanski QC said that the answer [was] yes, My Lord.
Nicol J said any further applications [would] be provisionally on Monday. [** unclear**] [Nicol J thanked] both again [** unclear**] the hearing whether [on] Monday [29th June 2020] [it went] without saying [would be held] remotely [was the] way this [would be] done.
Adam Wolanski QC said on Tuesday?
Nicol J said, “Tuesday or Wednesday”.
Adam Wolanski QC said Adam Wolanski QC could be wrong.
Someone said Tuesday.
Nicol J said something else [Nicol J needed to] say about [the] courtroom visit, [there had been] further discussions with Court staff [about the] difficulties with opening up [the] public galleries [** unclear**] not normally open to anybody. What [Nicol J had] said was, that it seemed to [Nicol J] that Court 13 (the public gallery) should be available, so such space [as] there [wa]s in the public gallery [to be made] available [for] lawyers and parties in [the] case. Nicol J said as far as spillover courtrooms [were] concerned [** unclear**]. Nicol J said [The] Court Service said to [Nicol J] a 5th courtroom could be made available, so 4 spillover [courts]. Nicol J said that Monica [**Patel?**] in [the] Court Service [was] dealing with matters she [Monica] [**Patel?**] will be able to tell you [Adam Wolanski QC and David Sherborne] exact numbers available.
Adam Wolanski QC said [he] hate[d to] intervene but [David] Sherborne [had] just vanished.
Nicol J said [David] Sherborne [had] just gone.
Kate Wilson said that she was Junior Counsel.
Nicol J said, if you [are] Ms [Kate] Wilson [were you] still on?
Kate Wilson said [Kate Wilson could] deal with the practicalities.
Nicol J explained that the Court Service [had been] talking about making a 5th courtroom available for spillover from Court 13 where [Nicol J will] be sitting [** unclear**]. Nicol J said [there are] changes announced by the Prime Minister [** unclear**], [the] short answer [is it was] too early [to] make any adjustments to arrangements made. Nicol J said [they would] keep positions under review for the [time] being [social] distance between people [would] continue to be applied. Nicol J [asked if there were] any question you two [had] as a result of those two points?
Adam Wolanski QC briefly answered.
Kate Wilson said [Kate Wilson’s] moment [may] be stolen.
Nicol J said [to] tell [David] Sherborne [Kate Wilson was] very competent.
David Sherborne [said that Kate Wilson didn’t] need [to].
Nicol J said to terminate the link, distribute the draft judgement through [Nicol J’s] Clerk, [the] only other thing [was] costs. Nicol J said [the] default [was] costs [were] reserved when [the] draft [was] distributed. Nicol J [thanked] both very much. Nicol J said bye bye, [followed by a pause] then Nicol J said uggh, then his video went off and Nicol J left the hearing.
The hearing ended at 4.32 pm.
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