Mr Justice Nicol heard 2 applications from Johnny Depp’s barrister David Sherborne for relief from sanctions and an application for third party disclosure from Amber Heard
By John Brace (Editor)
Leonora Brace (Co-Editor)
First publication date: 6th July 2020, 19:12 (BST).
Note some bad language and swear words have been edited out from the published version at the request of LB.
Edited 8th July 2020: to add links, punctuation and minor changes.
Edited 10th July 2020: to correct spelling of Wooton to Wootton.
The decision arising from this hearing is  EWHC 1734 (QB).
Please note that comments are turned off due to the ongoing nature of this case.
Earlier pieces published in this same case:-
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 (29th June 2020)
The Hon. Mr Justice Nicol asked to agree to 4 further witnesses (Miss Vanessa Paradis, Miss Winona Ryder, Mr David Killackey and Miss Kate James) in Johnny Depp/The Sun Newspaper libel case (16th May 2020)
The Hon. Mr Justice Nicol agreed privacy order in Johnny Depp/The Sun Newspaper libel trial allowing Amber Heard and another witness to give some evidence during the libel trial in private (with reporting restrictions) (10th April 2020)
A decision ( EWHC 1689 (QB)) on the application made at this hearing was handed down by email to parties and sent to BAILII on Thursday 2nd July 2020.
This is a report on a public hearing held on Monday 29th June 2020, which was scheduled to start at 10.30 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 (for an application for relief from sanctions by the Claimant and an application for third-party disclosure by the Claimant) in the libel case QB-2018-006323 (Depp v News Group Newspapers Ltd & Dan Wootton).
For the application for relief from sanctions
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 (Leading Counsel) and Clara Hamer (Junior Counsel) (instructed by Simons Muirhead & Burton LLP) was for the Defendants (News Group Newspapers Limited and Dan Wootton).
For the application for relief from sanctions
David Sherborne (Leading Counsel) and Kate Wilson (Junior Counsel) (instructed by Schillings International LLP) for the Applicant (John Christopher Depp II (“Johnny Depp”)).
David Price QC for the Third Party Respondent (Amber Heard)
There were twenty-two people watching near the start of the hearing at 10:30 am, but this increased to thirty-six by 12:29 pm. This is the first part of three (as this first hearing was adjourned at 1.03 pm for a one hour lunch break and there was also a shorter adjournment part-way through the second hearing at 4.59 pm for around six minutes (the hearing that resumed after the lunch break) and it finished in the evening at some point just after 7.30 pm.
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? **].
Errors have been corrected (where possible) before publication.
Prior to the hearing starting, although Adam Wolanski QC for the defendants was present, David Sherborne was not – Junior Counsel for the Claimant Kate Wilson apologised and explained that David Sherborne had had to uninstall and reinstall Skype which led to the first delay.
Once David Sherborne had sorted out his problems, then Adam Wolanski QC for the defendants couldn’t hear what was being said, which caused a further delay whilst this was resolved, so the start to the hearing was delayed and started at 10.40 am (instead of 10.30 am). Below is a partial transcript as the writer of this piece is not able make notes at the words per minute that people during this hearing spoke at. Parts in quotes though are direct quotes rather than the words used. Words or letters added are surrounded by square brackets .
Nicol J: Now we’ve got …
Nicol J: Ready to proceed … There’s been a lot of correspondence since I distributed my draft judgement which I understand has now been handed down… Help me …
David Sherborne: … appear[s] with Miss [Kate] Wilson, [Adam] Wolanski [QC] and [Clara] Hamer for the defendants, as [well as David] Price [QC] for Miss [Amber] Heard.
Nicol J: Pause, not acknowledge[d] [David] Price [QC] present?
David Price QC: Present, My Lord.
Nicol J: Welcome … [Adam] Wolanski [QC] and [Clara] Hamer [for the] defendants, [David] Sherborne and [Kate] Wilson …, Yes?
David Sherborne: Shall I outline what’s on the agenda?
Nicol J: Yes.
David Sherborne: Application for relief from sanctions, following [the] handed down judgement … [the defendants] raised an issue of [the] costs of [the] hearing on Friday .. Say determine today… We say reserved until after [the] trial… Third .. Application rely on … Mr [Kevin] Murphy .. Was opposed… Now opposition is limited to one point… Fourth application. .. third party disclosure against Ms [Amber] Heard… opposed by Miss [Amber] Heard… Since Thursday application for permission to rely on further witness statement received over the weekend, the Claimant do not oppose that.. .. Pennington witness statement not opposed.. Finally matter raised in skeleton [argument] and witness statement last night going and doing American lawyers and Miss [Amber] Heard …. handed to defendants covered by [the] Protective Order may need to be resolved if Nicol J considers outstanding
Nicol J: [A] logical place [to] start, relief [from] sanction.
David Sherborne: Yes.
Nicol J: [It’s] sensible for you to start with [your application.
David Sherborne: [Your] Lordship found [the] Australian texts should have been disclosed…. Reason [the] defendants withdrew [the] other complaints .. At 4 o’clock afternoon Wednesday before Thursday of last week.. Application notice .. And witness statement .. Murphy to Miss [Amber] Heard criminal charges in Australia… And … provenance of two recordings disclosed … How late .. raised … Defendants did not ask you to take into account as breaches … Once again late afternoon (yesterday), [a] 26 page witness statement [was] served [with a] 250 page exhibit. .. Further allegations of breach .. Further material today .. Two further witness statements .. And a transcript … More than unfortunate these are the defendants’ tactics… if I have to deal with it I will.
David Sherborne: Miss Afia … forced to put in short statement at speed … Defendants could have made application for breaches for all… Wrong in principle to try to introduce “a series of complaints through the back door” … Or refuse relief [from] sanctions … One breach established … Very real, seen as last minute attempt … shoehorn further complaints … Defendants doing everything they can to avoid the trial… Defendants in their skeleton [argument] … Say fair trial cannot be had … Not other complaints about … “Highly opportunistic and wrong in principle” … Covers the ambit of the application…
David Sherborne: Second point, the test Your Lordship must apply well-established three stage test in Denton, test Court of Appeal serious or significant one .. Second why the default took place… Third evaluate all circumstances of the case.. Pay regard to resources, proportionate use of proceedings… need to comply with rules.
David Sherborne: From our skeleton [argument[, the Kazakhstan case, just because Court f[ou]nd a deliberate default and no good reason, doesn’t mean relief from sanctions .. not granted still has to perform same exercise second case to look at Fox and Wiggins case chance to look at that?
Nicol J: ..I didn’t … lot for me to do. ..have I got the bundle of authorities?
David Sherborne: It’s the Claimants’ authorities.
Nicol J: Just a moment… Is my Clerk there? Amy [Baker] are you there?.. When I got the .. Claimant’s authorities bundle?
Amy Baker: Yesterday at 9.39 ..
Nicol J: … authorities … judgement of Mr Justice Julian Knowles [QC].
David Sherborne: … Facts of case… Suing for libel and harassment to… Judgement in default … Paragraph 2(a) and (b) .. Order set aside default judgement and seeking relief from sanctions .. Against [the[ backdrop just turn on … Don’t need to look at anything to do with capacity
Nicol J: Which paragraph?
David Sherborne: Start at paragraph 91, just to set the scene.
Nicol J: 91 just hold on..!..
David Sherborne: There the Court…
Nicol J: Haven’t got quite there yet, just a moment.
David Sherborne: Sorry …
Nicol J: Right, 91, application to set aside judgement in default.
David Sherborne: .. Apply the three stage test in Denton … Apologise it took a long time to get to 91, can I take you to 111 where he starts to explain his reasoning?
Nicol J: Just a moment. Yeah.
David Sherborne: There he says this is a defamation and harassment claim, cites the Bereskovsky case .. That’s because primary objective .. Libel .. Vindication of reputation .. .. There make play how important .. Applies greater force how important libel .. Vindication .. Not just by claimant but fir defendant .. Look at paragraph 112 .. Material .. Realistic prospect of .. Can ascertain a plea of truth .. Allegations of such seriousness … Couldn’t apply greater force .. Nature claim allegations ..such satisfy .. Three stage test .. See 115,
Nicol J: Yeah.
David Sherborne: Whether serious … Number of breaches .. Dealing here with one .. See in 117 … Then 118 consider why the defaults occurred … Para[grapg] 120 stage three required he to evaluate … To deal Justly .. Point away .. Into account all of the points.. Dilatory way .. Relief from sanctions .. It is very important case such as this victim .. Co-ordinated campaign .. Including the 6th … Whilst allowing co-conspirators … Inconsistent … Also place great weight on features by Eady J in Bereskovsky .. All the more so, allegations as serious as in this case. Such a scenario risk inconsistent verdicts … All the more so allegation are as serious .. Seriously assaulting the sixth defendant and killing unborn child.. 14 incidents unprovoked violence on Ms [Amber] Heard she says in fear of her life ..I that’s all .. Fact sensitive .. Not just to party who is said to be in default .. But to both parties say applies to thus case .. Matter of principle.
David Sherborne: Turn to three stages, stage 1?
Nicol J: I made an Unless Order, are you really arguing not a serious or significant breach ?
David Sherborne: No, [Your Lordship is] likely to find it is.
Nicol J: Stage 1 agreed.
David Sherborne: … understand likely to find that Miss Afia apologises to the Court for it .. Hopefully read Miss Afia’s witness statement .. What is clear gives an extensive detailed and balanced explanation not just in [the] circumstances order [was] made .. And nature if disclosure .. In terms of reviewing documents that gave rise to the breach .. Took what Your Lordship found an incorrect view .. Good reason to explain the fault.. Not deliberate failure comply deadline … Had documents no prejudice in real sense accepted should have been disclosed UK proceedings as well in light of what Miss Afia said … Your Lordship should accept as a good explanation .. Then bring Denton to an end .. Then don’t need to get to the third stage .. Referred to in fix and within case and notes in White Book.. Even if not accept a good explanation .. Then does place the default in context .. When looks at disclosure .. Smele’s witness statement .. When you step back Your Lordship will see the default of failing to provide a series of texts should be set against [the] Claimant producing vast amounts of documents ..of trial bundle 9 files, 7 are of document … Defendant only these handed by Miss Heard she has decided help her … Claimant had to review thousands of documents at great speed .. Defendants through Miss [Amber[ Heard cross checking everything … When Your Lordship set an Unless Order .. In circumstances did .. Not intended to set a trap for [the[ Claimant .. Find .. Cross checking …. Disclosed many many thousand .. Produces it without reciprocal.. Not what Your Lordship had in mind Claimant’s claim struck out … Important background third stage .. Extremely draconian step [to[ strike out now? true claim .. Moving in to at far three,
Nicol J: Thought .. on stage three,
David Sherborne: .. as I say not good, on stage 2 very much [the] backdrop and context need to [be[ consider[ed[ whether it is [a[ proportionate breach, strike out the whole claim all its [entirety]? The explanation given at stage 2 and backdrop way in which disclosure … how many already disclosed.
Nicol J: Mr [David] Sherborne, sorry to interrupt, [you have] made the point already, Miss Afia’s explanation, the volume of material the Claimant’s solicitor had to consider, let’s move on to the next point.
David Sherborne: .. sorry trying to explain the overlap.. Your Lordship have to defuse whether ultimate draconian step required .. Miss Afia has apologised to the Court for the default … Whether ultimate step .. Factors.. Vast number of document.. Text exchange was a very small fraction.. Defendants seem to no longer be saying cannot be a fair trial… Nor can they sensibly say so .. Although found should have been disclosed .. Not documents to heart of allegations the court has to decide whether Mr [Johnny] Depp … Series of assaults.. Or whether she was the one that assaulting him .. .. Solicitor .. Drug taking .. Document to heart of case prior to draft judgement circulated .. Not least because of admissions on Thursday on both sides .. Both Mr [Johnny] Depp and Ms [Amber[ Heard took drugs and consumed alcohol during their relationship… Intended to apply for specific disclosure narcotics between 2012-2016 .. Could never have been justified .. Presumably defendants now radically shifted position … Letter of 25th June .. Now apply period 1 week before just 4 of the 14 incidents.. Could be no fair trial even if grant relief seek all documents refer to narcotics… Not jade? fair trial.. Now just 1 week before 4 of 14 incidents Claimant agreed to perform those searches .. It illustrates in reality .. Impact .. Cannot be said somehow no fair trial .. Once one removes any real risk on defendants’ case can be no fair trial .. Whether Claimant should get punished to such an extent for this default whole Claim struck out .. Just because complaints in witness statement Mr Charalambous .. If defendants wanted to rely should have sought to rely last week… Application serve 4 o’clock afternoon before …? it witness statement .. Fault lies [with the] defendants [who] should bear consequences … Not [to] introduce other complaints … That’s the backdrop to punish the Claimant to take draconian step be utterly disproportionate .. Important [that] I make a number of points in that context .. Not a deliberate breach ..
Nicol J: [You have] said that already and I understand that.
David Sherborne: under CPR [Civil Procedure Rules] default by parties’ legal representative should be attributed to [that] party itself… Different decide all circumstances .. Punished having his Claim removed especially .. Left with an action against his solicitor .. Breach [of] contract .. Loss chance or lost opportunity .. No such Claim entirely different type .. Woefully inadequate conclude even if took view in there circumstances and what would be appropriate .. Even if view attributed to Mr [Johnny] Depp .. Fault lay with Claimant’s solicitor… somehow an action against them … Another factor is the unfair position … Disclosure only really by one party .. Enormous number of documents.. No reciprocal obligation … Text reviewed by solicitors not deemed to fall within [CPR (Civil Procedure Rule)] 31.6 … At best peripheral no sanction I’m defendants… Your Lordship has to consider fairness … Most important factor how important it is to have a clear and reasoned judgement only way vindication shall be given … Vindication in libel .. Importance of being swift .. “Justice delayed is justice denied” … Limitation period was reduced to one year .. An action for libel, quintessentially of … Trial is of .. Serious allegation a.. Violence .. Not just physical violence,
Nicol J: [You] have made [your] point about vindication and [the[ importance to both parties and [I] have understood.
David Sherborne: .. most important.
Nicol J: .. understand Eady [J] and Bereskovsky move in to [your] last point.
David Sherborne: … understand [Your] Lordship knows..
Nicol J: .. deal with those points.
David Sherborne: .. defendants’ position dispute between [Johnny] Depp and [Amber] Heard .. Published [to] millions [of] readers [of the] Sun, [both] online and [in] hard copy. .. Reached a wide audience within this jurisdiction .. Defamation Act .. Publicly so .. Even more widely .. Both in media and online .. Not mere passive .. Prayed in aid .. Miss Heard just a witness .. Although started only defending 2 … Now expanded these to justify 14 allegations … Deliberately conducted by airing in open court at interim hearings… gratuitous.
David Sherborne: Gratuitous and deliberately intended .. Put Claimant [in] worst possible light.. Reading texts.. Hearing at 20th March .. Dangers posed by COVID-19 and risks cause Court staff and parties, defendants’ counsel .. On instruction a accused the Claimant of being a coward .. Reported all [the] papers and [the] media .. Wanted an adjournment wanted to lose .. Taunting .. Another fact why consider vindication ..I Defendant made so .. Now try everything can to avoid trial taking place … In my submission … Vindication of exceptional importance .. Because .. Defendant say opportunity in US [United States] proceedings.. Not proper at all.. No guarantee those proceedings will take place .. [Amber] Heard applied at least once to strike out .. Her opinion piece in [the] Washington Post didn’t name Mr [Johnny] Depp, has another substantive Defence .. That trial adjourned to next year … American proceeding nothing to do with publication in [the] Sun [in] this country .. Persisted .. US [United States] proceedings will not produce a clear and reasoned judgement what [Mr] Justice Eady said important .. Trial in Virginia, [after a] jury trial, just a verdict .. Here [a] reasoned judgement and judgement in relation to 14 different incidents .. Reasoned judgement .. Also for the defendants .. And important public interest given what said in open court .. Well reasoned .. jury in court in Virginia .. Year or more [to[ find Mr [Johnny] Depp … heard .. Nowhere near as reasoned judgement .. All those reasons .. Not a case if deliver any withhold .. Don’t go heart allegations where [the] trial date [was] not imperiled .. Vindication [was[ critical .. Wholly disproportionate for Your Lordship to strike out claim fur the default .. For that breach.. I have not addressed the additional matters quire wrong in principle to do so .. Obviously need to deal with them.
Nicol J: as you say defendants have relied on certain other matters [when I] hear [from] Mr [Adam] Wolanski [QC] as to why they should be able to do so [it may be] convenient if you could give [a] response to those assumption[s] whether right or wrong [and] whether [they should] taken into account .. [It is] more convenient [to have] one party’s comprehensive [submission], then [the] other party in reply ..
David Sherborne: .. deal with ones [I am] aware of, have been made one reservation.. Rather a unique case .. All sorts of complaints being made at the last minute .. Won’t hold against me .. Extremely unusual to say the least that these are introduced at such a late stage .. Let alone for me to master what I need to say.
David Sherborne: .. first one .. [Kevin] Murphy .. What is said [Kevin] Murphy gave a declaration to Ms [Amber] Heard’s lawyers purpose [of] criminal proceeding against her, against her in Australia [for the] illegal importation of dogs [in] 2015,
Nicol J: 2015?
David Sherborne: One moment,.. will tell you
Nicol J: .. may be .. When proceedings .. Alleged importation .. Doesn’t matter whether 2015 or 2016 [in the] context [of the] alleged breach regarding Mr Murphy’s declaration.
David Sherborne: .. back .. Defendant disclosed .. Miss [Amber] Heard .. Back that repeated .. Refrain .. [Johnny] Depp in breach of disclosure obligations.. Take you to Mr Murphy’s witness statement,
Nicol J: Just a moment .. In [the] bundle for [the[ trial hearing, which page [number] and tab?
David Sherborne: [I] had to reorganise my bundle, it is tab 31.
Nicol J: just a moment, let me find that. Second witness statements of Kevin Murphy, which paragraph?
David Sherborne: Start at paragraph 5, start at paragraph 3, actually My Lord on the first page…
Nicol J: … “make this statement in support of the Claimant’s Claim”..
David Sherborne: Disclosure of [the] document on [the] 14th of June referred to below… Declaration referred to, .. Then paragraph 4,
Nicol J: [too short to transcribe]
David Sherborne: Paragraph 7 [to] 9 (first witness statement) … False evidence .. Explains in detail how he was involved .. Ready dogs for travel to Australia .. As says in paragraph 6 … Timing constraints [did] not allow [for the] dogs [to be] vaccinated .. Expressed concerns [to] Ms [Amber] Heard .. Options dogs on cargo .. Bringing into Australia .. Mandatory quarantining .. Notified a number people dogs not allowed… Illegal severe .. Miss [Amber] Heard brought into Bahamas without papers in .. 2014 … At 9 .. No time discuss with Mr [Johnny] Depp .. Nothing to do I with Mr [Johnny] Depp all to do with Ms [Amber] Heard .. Paragraph 10, [Kevin] Murphy explaining getting to work learnt Miss [Amber] Heard taken dogs .. Despite warning and severe ramifications .. Insisted bringing to Australia .. Messages explained learnt heard gone to Australia with the dogs .. Document provided to Schillings on 14th June – said to be a breach by Mr [Johnny] Depp .. Only relied in .. When witness statement in afternoon before actual hearing in application notice .. Chose not to apply as a breach .. Show why couldn’t possibly be .. Deprive proving no breach ask Your Lordship consider should be penalised .. Defendants classic case of “have your cake and eat it” … Show nature of [the] exercise .. Look at paragraph 11 .. Heard requested false statement .. Dogs .. Entrance .. “Wouldn’t want you to have a problem with your job” … Supported [a] false account .. Witness statement used [to] avoid charges [and] imprisonment in Australia .. Effect of declaration .. Extreme pressure to cooperate despite knowing [it to be] untruthful .. Documents disclosed on 14th [of] June … Signed declaration Australian proceedings.. Want to see [the] document, behind it’s the exhibit.
Nicol J: Errm.
David Sherborne: Page 574 [in the] hard copy.
Nicol J: Can you look on your electronic [**foot (error)**?], tell me what is the PDF number?
David Sherborne: Have to wait, let’s not get distracted.
Nicol J: Yeah.
David Sherborne: … Miss Kate James’ witness statement, how pressure [was] put on Miss [Kate] James .. Asked lawyer if appropriate to do so, won’t paraphrase .. Advise her not to lie .. Reason why Miss [Amber] Heard travel dogs Australia.. Could not obtain paperwork in time .. Before I move on, I’ve got the page, page 600.
Nicol J: Just a moment.
David Sherborne: Does Your Lordship have it?
Nicol J: I’m still trying to get to page 600.
David: I’m sorry.
Nicol J: Electronic bundles are extremely convenient, but are not easy to navigate. Just give me a moment and I’ll get to page 600. Right, now I do have headed “privileged and confidential, statement of Kevin Murphy”.
David Sherborne: I’m not going to take you through it.. explains the circumstances ..show document to see .. Signs on second page .. No point on contents other than it contradicts what he says … Defendants have said it is a document Mr [Johnny] Depp must have, back to .. Witness statement
Nicol J: Which paragraph?
David Sherborne: Paragraph 13.
Nicol J: Yeah.
David Sherborne: Ms [Amber] Heard’s lawyer in the US [United States], also had an surreal? in counsel at [Australia] .. They drafted it for him would be integral to the outcome .. Told have to travel to Australia .. What said .. Essentially told my job would be at risk if I did not agree to her demands .. Relieved matter settled [and] not asked [to] lie in person in Australia .. Explains paragraph .. And follow log as long as with Mr [Johnny] Depp .. Risk for job .. After .. Australian law firm advice .. Retracting .. In Australia .. Attempt to right the wrong .. This way independent of Mr [Johnny] Depp and I personally incurred all the legal costs .. Retained an Australian barrister .. Worried about potential criminal liability .. False statement .I and statutory declaration in criminal proceedings in Queensland.. Very serous steps to deal.. In August .. He resigned from position Mr [Johnny] Depp.. Not financially feasible .. [Amber] Heard made a joke Australian dog [on] social media .. Lie [Department of] Homeland Security Savannah Miller .. All of them clearly evidence [the] fact [it was] not Mr [Johnny] Depp, but Mrs [Amber] Depp who had arranged this .. Paragraph 25 of the first witness statement,
Nicol J: First witness statement .. I’ve got that tab 33.
David Sherborne: Paragraph 25, just to demonstrate the approach taken by the defendants above paragraph 23… As well as the breach .. 25 .. Refers in 24 to [the witness] statement of Mr Murphy .. Contradicts the [witness] statement given .. Obviously .. Claimant .. Claimant employs Mr [Kevin] Murphy .. At the time not at the point.. “May well have arranged for this statement to be taken” – no evidential basis for saying have it – Ms [Amber] Heard disclosed it – said to be a serious breach by Claimant on the flimsiest of pretexts – demonstrate steps way approaching it. Anything they can think of might be a breach by [the] Claimant, therefore Your Lordship should strike the whole Claim out .. Complaint raised in paragraph 29 only called further concerns, not said to be a breach .. A lot of material has been provided .. Mr Charalambous .. 26 page witness statement .. In a nutshell when Ms Afia said to Court .. Document did not come from the Claimant it appears she may has been wrong .. Have to go back through electronic data, doesn’t take the defendants any further, lacks any real… [The] reality document was disclosed on the 20th of February and a document, it’s a transcript that contains a number of allegations where Ms [Amber] Heard admits to physically assaulting Mr [Johnny] Depp, “Babe you’re not punched”. .. Not make any sense .. Disclosed and helpful to his case .. This is the second of concerns said to be about the Claimant’s disclosure another point made in Mr Charalambous’ witness statement provided in [Ms] Afia’s 8th witness statement provided at speed last night.
Nicol J: [I] didn’t get to Miss Afia’s 8th witness statement, where is it?
David Sherborne: Right at the back of the bundle, tab 45.
Nicol J: Let me just have a look at her 8th witness statement and let me see what it says.
David Sherborne: [I] was just going to take [Your Lordship] to paragraph 12…
Nicol J: Paragraph 12, just a moment,
David Sherborne: See Charalambous at 13, … has raised two further text messages, you’ll want to read to 15,
Nicol J: Yeah, read 13 to 15.
David Sherborne: .. thousand[s of] text messages, thousand of documents, [the] defendants have the unique ability to cross-check disclosure … Raised at the last minute so we can’t deal [with in the] proper fashion… [Ms] Afia[’s] explanation on Sunday night on what [Ms Afia had] seen .. Nature of exercise asked to .. [it is] wrong in principle to take [that] into account, then 16, reference to letter from email, a spat, claim air[ed between] American lawyer and defendants. American lawyer whether or not some of documents provided by [Amber] Heard to defendants may have been the subject of a Protective Order .. Had to get her consent .. An artificial process we had to go around .. It’s said some were part of the Protecti[ve] Order .. American lawyer say shouldn’t have been done .. Do complain about,
Nicol J: Pause and repeat what [you[ just said .. Not seeking to [s]top Miss [Amber] Heard do what?
David Sherborne: Understand Mr [Adam] Wolanski [QC] show you the letter .. Categorically state he does not object to it .. Don’t know about the spat between American lawyer.. Can tell on instruction, do not object,
Nicol J: In [Adam] Wolanski [QC]’s skeleton [argument] .. On Claimant’s behalf [he is[ prepared to give an undertaking,
David Sherborne: [I will] try to dispose of this point without long debate, cannot assist Defence, report …. sanctions.
Nicol J: Not defendants, but Claimant.
David Sherborne: .. Not proportionate [to] strike out .. Multiple action of issues thrown up [at the[ last minute “as a way of slinging mud at Mr [Johnny] Depp”, .. If defendants want to raise a separate point, [it] can be dealt with by assurance .. Undertaking ..
Nicol J: I’ve understood that point, anything else you want to say?
David Sherborne: [I[ understand [that it was] taken at .. speed.
Nicol J: Thank you very much for your submissions, [have we[ got Mr [Adam] Wolanski [QC]?
Adam Wolanski QC: and hopefully a [**ckaeree (error?)**]?
Nicol J: Think Mr [Adam] Wolanski [QC]?
Adam Wolanski QC: serious .. And accepted by Claimant .. Incompetence of Claimant’s legal team not a good reason it’s a bad reason .. Fault of party or lawyer makes no difference, relevant case in due course.
Nicol J: Just a minute, you referred to me [to] a note in [the] White Book .. And referred me to that for proposition .. Outside the control of the party in default .. Next paragraph .. If some good reason shown .. Rule .. Usually grant relief from any sanction imposed.. Effect of it not being a good reasons, almost automatic relief not triggered, stage 3.
Adam Wolanski QC: .. [We] say [the] fault lies with Schillings.. Do not accept [the] Claimant [was] not personally culpable, [there was] no evidence [from] Claimant personally .. Not address seeking to withhold damaging documents .. In this regard [we wish to] address two additional matters .. Crucial that we do so .. Both [are] relevant to [the] question of whether [to] accept [the] assurance by solicitors .. He was into way culpable in relation to this breach.
Nicol J: Just a minute, yeah.
Adam Wolanski QC: First of two matters .. Already misled my Your Lordship at the PTR (pre-trial review) on an important matter relating to disclosure, not in dispute evidence on his behalf by Ms Afia, in relation to important recording at the centre of an application for disclosure, lots had never been in his possession. Now accepted assurance through solicitor repeated in Court .. with false. Despite Schillings now making clear that assurance was false, no statement from Mr [Johnny] Depp personally how he came to mislead Your Lordship, let alone an apology.
Adam Wolanski QC: Whether accept, Miss Afia today.. Conduct of American lawyers with regard to Miss [Amber] Heard .. Hearing of last Thursday was reported in media, Claimant’s lawyer Mr [Benjamin] Chew wrote a message to Miss [Amber] Heard’s representatives in America threatening to seek sanctions in America.
Nicol J: … for providing [the defendants] with the Australian drug texts?
Adam Wolanski QC: … and an assurance from Miss [Amber] Heard no further documents to the defendants ..set to that background .. Reject [the] bald statement [of the] Claimant .. Breach Your Lordship has found guilty of.
Adam Wolanski QC: Turning to the 3rd stage, rely on 7 factors, … over of which .. Taken together [they are] overwhelming. 1st, no reason to revisit reasons why [an] Unless Order [was] made, as authorities show only in rare case show this is appropriate, already ruled what a .. the sanction for breach should be .. Every reason for Your Lordship, less than two weeks before trial was about to start, guilty of multiple breaches of disclosure, leads to second point, gravity of [the] breach, had [the trial] proceeded on 23rd March [it] would have had without the Australian drugs text[s].
Nicol J: just slow down please, well when was the err those drug texts supplied by [the] Claimant in the US (United States) proceedings, I think that was in February? No later than the 18th February?
Unrecorded speaker: That is right.
Adam Wolanski QC: We didn’t know because […] not disclosed to you, [the defendants] only found out because Miss [Amber] Heard have them to us very recently, had tyre? before the 23rd March trial but did not disclose to us, would have gone ahead without the defendants having the texts [and] unable to challenge on account [of] not having drugs not having taken in Australia had not discussed .. And not had document to challenge Claimant’s credibility more generally .. Not telling the truth on an important matter.
Nicol J: [Nicol J has] already ruled these documents were disclosable.
Adam Wolanski QC: Now clear the Claimant through legal team misled Court at the PTR [pre-trial review]. Fourth, is the matter which is his threats to Miss [Amber] Heard of her supply to the defendant of the Australian drugs text and the threat to her of sanctions for doing so. Again I will get … returning to that in more detail, say Mr [Johnny] Depp.. Not just attempt .. relevant evidence … an attempt to threaten and intimidate Miss Heard .. Who is a key witness.
Nicol J: At some stage, do you want to respond to [the] offered undertaking by Mr [David] Sherborne?
Adam Wolanski QC: In my submission, trial shouldn’t proceed at all.
Nicol J: [I] understand the point, .. Make points about Mr [Johnny] Depp’s threats to Miss [Amber] Heard ..
Adam Wolanski QC: 5th point make, the defendants cannot now have a fair trial .. Now apparent from Mrs Afia’s 7th and 8th witness statements .. Conducted “totally incompetently” … Know this not just because my learned friend .. Do not understand how CPR (Civil Procedure Rule) 31.6 operates .. Is a serious problem [that] shows that [t]he wrong test … therefore may well have been applied across the board, there is more Afia’s evidence “tells a very sorry tale”, “important recording[s] have never been listened to by Schillings’ team”, “insufficient search words”, [the] result is chaos – forty examples not disclosed obtained very recently from Ms [Amber] Heard and the Claimant now accepts should have been disclosed, unless disclosure exercise carried out afresh different legal team .. Again, against this “sad background of ineptitude” too late, the trial starts in a week.. Elected not to give us or overlooked through incompetence of his legal team …can have his vindication through his US claim for libel against Ms [Amber] Heard, in respect [of] purported damage up reputation, not just this jurisdiction, but globally, not confined [to] damage [in] this jurisdiction, also damage in [the] US [United States] where he [Johnny Depp] and Ms [Amber] Heard reside and are both citizens. That trial is due to start in January  .. Arising Ms [Amber] Heard [is] not a party.. .. Asymmetry .. Since Ms [Amber] Heard is a party .. Allegation bring the claim are the same as these proceedings.. In response Mr … [David] Sherborne .. Contesting .. Judge US proceedings ruled Washington Post did refer to [the] Claimant in respect of 3 of 4 complainant, do not accept vindication through a jury .. Vindication reasoned .. Why did [Johnny] Depp bring the claim in the US at all? .. Vindication relatively recently this jurisdiction through jurors [was] never accepted [was] not proper vindication ..
Nicol J: Just a minute. Yeah.
Adam Wolanski QC: Moreover in US (United States) proceedings pre? hems? remote video links and time zones [are] much less challenging. Almost all witnesses are there and should be able to give evidence in person, by January  we hope [the] pandemic will have eased facilitating live witness in person. .. If [this] case go[es] ahead next week, [it will] absorb vast resources, 5 courts [were] made available .. Court staff … At public expense and at detriment to other litigants.. In my submission he has forfeited [his] right to this indulgence and “has demonstrated contempt to this Court”… Arrogance ..
Nicol J: Yeah.
Adam Wolanski QC: Global Torch case
Nicol J: Just a moment, ask [my] Clerk [to] help me. When [was it] sent to me [the] defendant’s bundle of authorities yes?
Amy Baker: On [the] 28th at 20:14.
Nicol J: Just a minute .. errm Amy did you say the 28th, was that Sunday?
Amy Baker: Yes it was.
Nicol J: I’ve got it, just a moment.
Nicol J: Now Global Torch is tab 2 I think.
Adam Wolanksi QC: It is tab 2.
Nicol J: Just a minute, yes.
Adam Wolanski QC: It is a decision of the Supreme Court from 2014 relating to the breach of an Unless Order in respect of a statement the party was personally ordered to make… Paragraph 23 judgement of Lord Neuberger, page 68 of the PDF.
Nicol J: Beginning “this contention”.
Adam Wolanski QC: Start at (g) about six lines down, “self-evident” … If Court orders respect … Persistence … Absence .. Hard to quarrel … Claimant of disobedience … Enforcement almost inevitable … Particular case by special factors … In present case, by judges do not appear to be any special Factors … Difficult to have sympathy … Original order in standard [form] … Failed to come up with convincing … He through [**company (error?)**] invoked the jurisdiction of the Court in the first place … next please the Michael Wilson and Sinclair case which is in tab 3.
Nicol J: Yep.
Adam Wolanski QC: This was an application for relief [from] sanctions, Court of Appeal summarised post Denton at paragraph 26, 91 of the PDF.
Nicol J: Yeah I’ve got [page] 91, that you[’ve] got, paragraph 26.
Adam Wolanski QC: Third stage of the test,
Nicol J: [Your] voice [is] very muted
Adam Wolanski QC: .. [too short to transcribe]
Nicol J: [You] still need to do something [with the] volume, speak closer [to the microphone] does that help?
Nicol J: [too short to transcribe]
Adam Wolanski QC: My solicitors say they can hear me fine, [it] may be problem at Your Lordship’s end?
Nicol J: Can you hear Mr [Adam] Wolanski [QC]?
Amy Baker: Yes and clear.
Nicol J: [It’s] gone quiet.
Amy Baker: [Do you] want to leave and dial back in?
Nicol J: At [the] moment [I can] only hear very faintly, [I will] ask everybody to dial back in. Take a few moments while that occurs, ok thank you..
A message appeared that stated all recordings had stopped.
Nicol J: Amy, I can see you now.
Amy Baker: Can you hear me? I can hear you, can you hear me?
Nicol J: Only very faintly.
Amy Baker: Can you turn the volume up on your machine?
Nicol J: How would I do that?
Amy Baker: Bottom of screen, speaker icon, usually near the time, just turn the volume up.
Nicol J: Ahh, that’s much better, yes, thank you. Now have I got Mr [Adam] Wolanski [QC] back?
Adam Wolanski QC: Yes.
Nicol J: I can now, hear you perfectly clearly, still got Mr [David] Sherborne, is Mr [David] Sherborne present on the call?
Amy Baker: I don’t think he is.
Nicol J: I think Miss [Kate] Wilson is could you see if we can get Mr [David] Sherborne back?
David Price QC: [I] wonder where [we] on timing?
Nicol J: Mr [David] Price [QC] I thank you for your patience, the reality is by the time Mr [David] Sherborne has responded, [we will] not be able to hear before lunchtime. I [am] grateful [but will not need you] until 2 o’clock onwards.
David Price QC: [Is the] 3rd party [disclosure application] likely to follow this application assum[ing it] succeeds?
Nicol J: [I] can’t tell you at the moment, [I] may need to hear other parties, …. precise order take before me, can say [it] won’t be before 2 o’clock, have we got Mr [David] Sherborne back?
David Sherborne: Yes.
Nicol J: [I] can now hear [Adam] Wolanski [QC] very clearly, taking me to [David] Sherborne, sorry [Kate] Wilson and Sinclair
Adam Wolanski QC: Paragraph 26, Roman (iii) summary of the alw? list Denton [in] particular [the] approach [at] (a) and (b).
Nicol J: Let me read 26(b), right I’ve read 26(b).
Adam Wolanski QC: These two factors should be given particular weight, next please paragraph 35, where Lord Justice Richards addresses the distinction [between] orders imposing a stay and unless orders improving? a strike out .. I would invite Your Lordship to read paragraphs 35 and 36,
Nicol J: Yeah right, I’ve read paragraphs 35 and 36 of Wilson and Sinclair.
Adam Wolanski QC: Finally same, must assume [the Order was] properly made unless [it was] exceptional or [there was a] change of circumstance, paragraph 38 please.
Nicol J: 38, just a minute. Yeah.
Adam Wolanski QC: so [the] Court has to proceed on basis that the sanction was properly imposed.
Nicol J: Yeah.
Adam Wolanski QC: Before leaving this case, go to paragraph 56, page 103 of the electronic bundle, does Your Lordship have that?
Nicol J: I do, I’m just reading it now. Yes.
Adam Wolanski QC: Here Lord Justice Christopher Clarke, [made a] distinction [about an] unless order, five lines [from the] bottom “the applicant”, “a last chance” where [there was] an unless order, the applicant has been given a last chance. Finally on [the] trio of cases on this point, [the] next case Sinclair, Dorset and Whitney unrelated tab 4.
Nicol J: Yeah.
Adam Wolanski QC: Was a case decision of Mr Justice Popplewell 2016 cost of £100,000 unless order, just one paragraph 43, at page 119.
Nicol J: Sorry what paragraph, paragraph 43?
Adam Wolanski QC: Paragraph 43, page 119.
Nicol J: Just a minute .. Yeah ..
Adam Wolanski QC: I’d invite Your Lordship to read it.
Nicol J: I’ve read it.
Adam Wolanski QC: The need to see anything in case rare .. Value judgement should be revisited, in my submission the current case is not such a case.
Nicol J: Yeah.
Adam Wolanski QC: [The] final authority in tab 5, a case called Gladwyn? and Bodescu?.
Nicol J: Yeah which paragraph?
Adam Wolanski QC: Paragraph 30, 3, 0, page 130 of the bundle, another relief from sanctions case. Mr Justice Tithe? whether a mitigating factor [was] that [the] fault [of the] defaulting part was [the] legal adviser, he says it is not.
Nicol J: Yep.
Adam Wolanski QC: with that in mind, can I please turn to now the first of four topics I said [I would] address in more detail. On the third stage, that topic is the role of the Claimant personally in the breach of the Unless Order Your Lordship has already ruled on. Ms Afia’s 7th witness statement .. Page 789 of the electronic PDF.
Nicol J: Err which paragraph?
Adam Wolanski QC: Paragraphs 23-25, [I’m] told page 794 of electronic bundle .. Does Your Lordship have that?
Nicol J: Yes paragraphs?
Adam Wolanski QC: 23, 24 and 25.
Nicol J: Let me just read those. Yeah.
Adam Wolanski QC: The explanation in short, the failure to disclose these messages, they were reviewed but did not meet test under [CPR (Civil Procedure Rule)] 31.6, want to assure no attempt to hide or withhold by the Claimant, the Claimant had .. Few weeks later…
Nicol J: Few weeks earlier…
Adam Wolanski QC: Rigorous steps to stop us? libel proceedings .. However it is the first point I wish to make some observations about. All we have from Ms Afia is a bold assurance, she does not provide the basis, whether she spoke to the Claimant about this issue, she does not say whether the Claimant know about the Australian drugs text, she does not say whether [the] Claimant [had] any input to withhold them or as advised.. So we know nothing in his role personally in the decision not to disclose them. There is no evidence on this application from the Claimant himself.
Nicol J: Yeah.
Adam Wolanski QC: About to move to 2nd of four topics, ..
Nicol J: How much longer [Adam] Wolanski [QC]?
Adam Wolanski QC: May be an hour.
Nicol J: [David] Sherborne still online, hasn’t finished, if he [will] be another hour, likely how long [will be] need[ed] in reply? On the basis if why haven’t heard how long estimate need in reply?
Unknown speaker: A number [of] points [Adam] Wolanski [QC] is making again, I don’t know [the] extent [of] … Expand .. De bene essay .. Factors .. Despite no finding …. I am concerned with how long it is all taking .. [it] could be at least half an hour ago… Depending on how far [Adam] Wolanski [QC] into the material.
Nicol J: Don’t know if [there is] anybody on the line who can pass a message to Mr [David] Price [QC]? It looks as though I will be involved with the present application at least until three o’clock if you want to take an extended lunch break?
David Price QC: An extended lunch break will be a good idea.
Nicol J: Terminate the call now, resume at five past two alright?
David Sherborne: [unknown – too short]
Nicol J: Thanks you very much.
This hearing ended at 1.03 pm.
There were 29 people watching the hearing at 2.05 pm.
Nicol J: Mr [Adam] Wolanski [QC], are you there?
Adam Wolanski QC:I am.
Nicol J: Mr [David] Sherborne, are you there ?
David Sherborne:I am.
Nicol J: [too short to transcribe]
Adam Wolanski QC: Second of topics, 3rd stage of Denton test. The claimant has misled the Court at the Pre-Trial Review. … Recording 2 .. Evidence was false.. Not an explanation nor an apology for doing so. Please start by looking at tab 44 page …
Nicol J: Tab 44.
Adam Wolanski QC: Page 1,137, told it’s 1163 in [the] electronic version of the PDF.
Nicol J:Yeah, just a minute, right I’m on page 1163. Explain to me?
Adam Wolanski QC letter of Simon[s] Muirhead [&Burton] solicitor to Claimants solicitor two weeks before PTR [pre-trial review], but several months after standard disclosure [had] passed, may recall looked at PTR [pre-trial review], email from Claimant’s US representative Adam Walkman, email to Mr Charalambous, making a threat that further tapes of Ms [Amber] heard come into the public domain… Which he is threatening to launder into the public domain.. Infer Claimant laundering … Attempt to apply pressure to our Client … Found way us UK media.. Client in his possession prior to first reports about them, main question for current purposes. One recording subsequently became referred to as argument 2.
Nicol J: One of the recordings referred to in a…
Adam Wolanski QC: Yes, argument 2.
Nicol J: Yeah.
Adam Wolanski QC: Page 1,141 in [the] main bundle further pages further on, .. In the PDF. The response from Schillings to that letter dated the 28th of February in relation to question about tapes … Copies of in Mr Walkmans possessions. “For the avoidance of doubt” our client has never had .. Tapes in his possession. [Adam] Wolanski [QC] – “now that was untrue”.
Nicol J: Can somebody give me the PDF page reference? Sorry can somebody give me?
Adam Wolanski QC: 927.
Nicol J: That’s going backwards. 927, yeah.
Adam Wolanski QC: The third witness statement of Mr Charalambous dated the 19th of February… In support of an application for disclosure of various categories of documents including recordings.. Refers to Adam Waldman email at paragraph .. Refers to recordings on Mail Online at paragraphs …
Nicol J: Yeah.
Adam Wolanski QC: At paragraph 15, apparent from Waldman’s email to me .. And has further recordings he is threatening to put in the public domain unless settle on terms favourable to the Claimant. Looked like campaign to put pressure .. Holding back and laundering through media .. Rather than disclose.. That’s why important mater for the Court to consider. Afia’s Statement [of the] 28th [of] February at tab 33.
Nicol J: Sorry what was the date?
Adam Wolanski QC: 28th February 2020.
Nicol J: [not transcribed]
Unrecorded speaker: Tab 33, page 667 of PDF.
Nicol J: Tab 33, first [witness] statement of Jeffrey Smele.
Adam Wolanski QC: Appended to that .. Statement starts at page 667, Lordship right, but Smele append[ed to[ Ms Afia’s statement to his statement, does Your Lordship have that?
Nicol J: Right on 667 now.
Adam Wolanski QC: Begins paragraph 4, that page …
Nicol J: Schillings have only recently been instructed.
Adam Wolanski QC: Go to [the] bottom of page, paragraphs 7 and 8 where Ms Afia addressed what … Underlying audio tapes were disclosed .. Assumed Mr Waldman’s emails and further recordings threaten to put in public domain .. Neither is correct .. [Adam] Waldman did not have prior, only these two .. Recording by Ms [Amber] Heard .. Claimant does not hold and has never held any of these recordings and it’s the past of those statements that was untrue. When it got to Court on 26th February, Mr [Johnny] Depp and Mr [Adam] Waldman were both in Court, repeated claim of .. For Lordship’s note at tab 42, page 837 or PDF 863.
Nicol J: [too brief to transcribe]
Adam Wolanski QC: and tyre rested as far as defeat that concerned .. As told last Thursday as examined by Mr Smele he received the extraction report document .. Was a report from the Claimants own mobile phone. On the 13th of March, the Claimant had disclosed some parts of the extraction report, but not all of it. … hadn’t disclosed the Australia drugs text, neither had he disclosed a critical … it, important documents. We will now look at tab 33, 668 in paper, 664 in [the] PDF bundle.
Nicol J: Just a minute I’m on page 664 now.
Adam Wolanski QC: … that should be headed extraction report. Firstly, column 2, Claimant’s own mobile phone. Argument 2 was one of the two in the Mail Online articles, evidence the Claimant had argument 2 on his phone. We know it’s the same argument two as reported in Daily Mail because of its duration, in the fourth column time information 2 hours 10 minutes 33 seconds. What we also see from this document that recording is time stamped 25th September 2015.
Nicol J: 29th September 2015.
Unknown speaker: 2016.
Adam Wolanski QC: … demonstrates had on phone or if not, what date represents certainly at very latest when extraction …. disclose to Ms [Amber] Heard in US proceedings,. February 18th before Ms Afia prepared her statement ..
Nicol J: Yeah.
Adam Wolanski QC: In same tab, please turn, go [to the] following page, does Your Lordship have that?
Nicol J: Argument 2.
Adam Wolanski QC: … documents disclosed with recording on the 20th of February ..
Nicol J: Just a minute ..
Adam Wolanski QC: A screenshot from the USB drive in which the recording was placed, know it’s the same. First of all called argument 2 and secondly on the following page, one can see the length of the recording.
Nicol J: Road cone.
Adam Wolanski QC: VLC Media Player sign .. Time period, length of recording.
Nicol J: Your eyes are better than mine!
Adam Wolanski QC: There’s the road cone, bottom right just there, times take,
Nicol J I’ll be back to you now, I’ll take it for you.
Adam Wolanski QC: … the timestamp says 2 hours 10 minutes .. It’s the same recording the significant information that the extraction document report contained. … that the Claimant had had that recording in his own phone that was withheld, there’s nothing in the road [cone], one document that shows it was held on the Claimant’s phone id
Nicol J: Yeah.
Adam Wolanski QC: So road cone document disclosed 13th February … Then Unless Order required disclose from US libel proceedings, please go to tab 36,
Nicol J: Yeah.
Adam Wolanski QC: Page 660.
Nicol J: My order of the 13th March.
Adam Wolanski QC: Tab 36 is the list of documents dated the 13th March but made in order to comply Your Lordship’s Order of the 6th of March. Goes to 667 in paper and .. In the electronic bundle.
Nicol J: 693, yeah.
Adam Wolanski QC: There is a list of documents from the US libel proceedings, (I) on the 11th February 2020, that was the date I think Your Lordship was looking for earlier.
Nicol J: Just a minute, yeah.
Adam Wolanski QC: … at the bottom of [the] list, item 15 composite text messages various. That was a reference to extracts from the extraction report but not argument 2 that was withheld.
Nicol J: Yeah.
Adam Wolanski QC:… information through Ms Afia was false, as he had argument 2 all along and the document that proved it was false was withheld until Ms [Amber] Heard provided it to us a couple of weeks ago.
Nicol J: Just slow down, yeah yes.
Adam Wolanski QC: … document from the extraction which proves Your Lordship was misled until provided to us by Ms [Amber] Heard. … Look at Ms Afia’s, a seventh witness statement which is at tab 42.
Adam Wolanski QC: This is Ms Afia’s witness statement served on the 27th of June in response to Smele’s… At paragraph 47 onwards about how Schillings went about the disclosure exercise, page 799 of the PDF version, on 9th of March.
Nicol J: Let me get to 799, paragraph 47.
Adam Wolanski QC: .. Wants Schillings did in response .., paragraph 47 .. Exported data from hard drive and USBs .. Previous solicitor over a thousand files,.. 320 audio files to review sent to junior members of [the] team, files with [Amber] Heard[’s] voice sent to senior [partner] .. Audio 2 was in the ZIP file as of 9th March, Schillings had everything need to know argument 2 [was] on [the] Claimant’s phone therefore the Court had been misled just a few weeks beforehand.
Nicol J: What date?
Adam Wolanski QC: As of the 9th of March.
Nicol J: Yard.
Adam Wolanski QC: Does not appear was forwarded in the review, neither member of junior … remember listening to it, extremely helpful to the Claimant, we take the view very helpful to the defendant[s], that it’s accepted it’s a disclosable document.
Nicol J: Yeah.
Adam Wolanski QC: At [the] time served our instruction were the recording had not been held by Claimant, had not had time review [of the] iCloud .. Mail Online having disclosed did not have to give it much further thought .. disclosure exercise undertaken . “That’s an astonishing admission” , “it’s a document that reveals the Court had been misled”, yet Schillings didn’t need to give it further report in Ms Afia’s word, .. Our instruction[s] were the recording had not been held by the Claimant, she said nothing about what he Claimant said to her, any discussion with the Claimant about argument 2 and the information she provided to Your Lordship was correct.
Nicol J: Just .. Down slowly, yeah.
Adam Wolanski QC: So by the time Schillings signed the disclosure statement in March, at least 1 but 2 opportunities, information was false.. No doubt shown argument 2 was the and when it as there,… secondly in [the] extraction report document just looked at and decided not to disclose.
Nicol J: Yeah.
Adam Wolanski QC: How can a firm of solicitors a miss something so important,  just spent a day in Court 1? Own Court that device… How did this happen? Paragraph 42.
Nicol J: Same witness statement?
Adam Wolanski QC: Paragraph 5 please. Ms Afia addresses, accept disclosed it on [the] 20th February .. At the time provided to me, “My instructions were…. No intention [to] mislead the Defendant or the Court”, Ms Afia does not state whose intention [to] us [that s]he was talking about.
Nicol J: Yeah.
Adam Wolanski QC: If it is the Claimant’s intention, how does she know? She doesn’t say spoken to the Claimant and he has told her, she doesn’t even say she’s had a conference with the Claimant [or] why he provided her with this untrue information to give to Your Lordship. Three is no witness statement from the Claimant. We know the Court was misled, we know the Claimant gave the information to Miss Afia for , [it was] ample to contend Claimant did intend to mislead the Court. [An] important issue must have been asked,  sat in Court while Mr [David] Sherborne repeated the point, while nothing was done to set the record straight, instead [the defendants] had to rely on Ms [Amber] Heard. .. It was reviewed, there’s no question of it being overlooked, .. Did not appear to contain any information to be disclosed, .. Uploaded as individual documents, the hyperlink is inactive .. Someone at her firm looked at the documents and decided it didn’t need to be disclosed, my submission [is] that is astonishing.. Decision is made by Schillings team to withhold it from the Court. Charalambous.. E-discovery, each extraction report [was] standalone when reviewed .. Form Charalambous .. Put into proper context .. Well we didn’t see how significant that document was “it’s blindingly obvious” .. Not a conscious intention or to be untruthful about its provenance .. [Ms] Afia not say .. What if any exchanges with the Claimant about his intention with regard to argument two.. US representatives would have wanted .. Disclosed in US libel in a crude data dump, just disclosed .. Had nothing to hide .. Earlier this year disclosed US and UK .. Incorporated in [the] original data dump, [the] question posed, if this has been missed what else has been missed? …ucation not on my [CPR] 31.6, Schillings say saw, but decided not to disclose. … no faith [in] disclosure exercise [has] been properly conducted, know that try did not listen (paragraph 51), was conducted in a rush, same tab, same witness statement.
Nicol J: Paragraph?
Adam Wolanski QC: Paragraphs 13 and 14, two other text messages did not disclose now accept she should have done.. From US libel proceedings… Further breach and page extraction report … Already another message not one .. Signed an n.. Key word, those key words do not include the word “fight”, “hit” or “control”. Just pausing there, how can a solicitors’ firm conduct a disclosure properly where “fights”, “hit” [and “control” are] not included [in] those search terms which were never agreed with the defendants? They were applied before Your Lordship … to make the Unless Order, the Order did not allow by certain search terms, obliged disclose all within ambit of [CPR] 31.6, if it’s right all [they] did [was] apply limited search terms. What faith can the Court [having going[ ahead that important messages were not missed? And we say none at all. Was going to take to 2 text messages – not disputed [they] fell within [the] ambit [of] it (the Unless Order) [which] were within the Claimant’s control [and] fulfilled the 31.6 not disclosed until now only disclosing because Ms [Amber] Heard is providing to us. .. In our submission, the disclosure exercise carried out by Schillings was thoroughly inept, .. Could not be fine by current legal team.. Was done entirely ineptly.
Nicol J: Mr [David] Sherborne makes a point that he …. that you have just been referring to that there have been other breaches of the Unless Order [that] didn’t feature in the defendants’ application heard last week, therefore you are not able to rely on them now.
Adam Wolanski QC: We say that is wrong, .. Does not mean they constitute other circumstance, Court not just able, but obliged, to take it into account. The second point is, in respect of argument 2, [**tape (error?)**] was put on notice of our points in this last Wednesday by Mr Smele’s witness statement .. At [the] hearing last Thursday, [I] said I would rest on matters in Smele’s witness statement previous day if application for relief from sanctions that’s why [Ms] Afia addressed not just once but twice on witness statements. If, as we say, it is obvious the Claimant has misled the Court .. Otherwise conducting the exercise in a blindfold, it is crucially important. The forth and final topic in relation to the third stage of the test concern the threats made to Ms [Amber[ Heard in relation to her privation of documents to the defendant[s] and attempts by the Claimant a to suppress the provision of further documents to us. .. We only know of the shortcomings because Ms Heard.. We would have never have known Australian drug texts.. Additional texts should have been disclosed but weren’t in breach of the Unless Order, can I ask you please in that in mind, turn to tab 44?
Nicol J: Tab 44.
Adam Wolanski QC: 1,198 of the electronic bundle
Nicol J Mr Charalambous.
Adam Wolanski QC: an exhibit to Charalambous’ witness statement and the very last page in an exhibit, email sent by Benjamin Chew (American lawyers) to Miss .. It was sent following the hearing last Thursday, that was reported in the international media quite .. We understand in London .. Certain texts.. Marked confidential to .. Reference [to[ Australia drugs texts.. That are marked confidential a contest if those .. We believe .. Egregious .. Relief from court in Fairfax … Order in libel case mark[ed] as confidential thereby prevent other party.. Australia drugs texts marked confidential by Mr [Johnny] Depp. Here is Mr Chew to .. Court.. Meet confer on Monday 29th June.. Which time [on] Monday most convenient? .. Request that you agree immediately, cease and desist … any more confidential documents to Sun and agree to [the] terms of the Protective Order, lawyer say stop saying provide documents to … to the Sun. This prompted .. Page 410.4, page 418 of the PDF bundle ..
Nicol J: Yeah.
Adam Wolanski QC: Letter from Simon Muirhead sent last Friday to Schillings.. Content if that email is set out and over the page, what it said it is this email is an attempt to prevent Ms [Amber] Heard .. Client would never had obtained had Ms [Amber] Heard … Attempt to supply any further .. Threat [of] sanctions … right [to] withhold disclosable documents and misconceived criteria, … submit on Monday obvious .. Your client .. Attempt to prevent a fair trial, over the over the page [an] undertaking
Nicol J: Just a moment I’m trying, .. Yeah
Adam Wolanski QC Please confirm by midday tomorrow, undertake no step, no court US or otherwise .. Provision of documents .. If not application for an injunction .. Response from Schillings, 422 in the PDF bundle,
Nicol J: Dated the 27th of June.
Adam Wolanski QC That’s right, three pages in, 425.
Nicol J The undertaking which you seek relates to potential relief.
Adam Wolanski QC: Previous page to one.
Nicol J: Thus us not a matter that is relevant .. alleged breach of US procedural law [is[ not a matter for a UK Court to determine.
Adam Wolanski QC the simple answer to an undertaking is no. .. Afia .. At tab 45.
David Sherborne: …
Nicol J: ….
David Sherborne: Another letter behind it, that deals with it ([page] 410).
Nicol J: I’m going to allow Mr [Adam] Wolanski [QC] to develop his point, then of course you can reply.
Adam Wolanski QC: .. Page 1,202 in the PDF bundle,
Nicol J: Paragraph?
Adam Wolanski QC: 16.
Nicol J: Yeah.
Adam Wolanski QC: Mr charalambous refers to email Mr [Benjamin] Chew letters .. Exhibit J88 has been no attempt by Claimant .. Even if those provision of those documents .. US law.. A puzzling statement, but there is worse Your Lordship, shoot have received 4 letters..
Nicol J: I’m going to ask Miss Baker if you can help me when they were sent
Amy Baker: Which letters?
Adam Wolanski QC: us at 8.53 and
Amy Baker: 8.21 afterwards haven’t hit a note just look through emails.
Adam Wolanski QC: Around 8.53.
Amy Baker: Forwarded onto you [Nicol J].
Nicol J: Received at 8.57 with four letters.
Adam Wolanski QC: Ask you [Nicol J] to look at them.
Nicol J: One letter from Rottenborn.
Adam Wolanski QC: Dated 10th January 2019, obviously a mistake that should be 2020.
Nicol J: One I’ve got is March the 2nd.
Adam Wolanski QC: Sorry, dribs and drabs.
Nicol J: Sorry, haven’t got that.
David Sherborne: I don’t have these either, I don’t have an email of that time.
Nicol J: January the 16th
Adam Wolanski QC: [David] Sherborne not got them, they were sent to Schillings at sane time they were sent to Your Lordship.
Nicol J: January 16th, guest, one you want me to look at?
Adam Wolanski QC: No January 10th, first one to look at.
Nicol J: Just a moment, now can somebody please send these to Mr [David] Sherborne or give him the information necessary?
Adam Wolanski QC: Forwarding straight away to Mr [David]
Sherborne, Mr Sherbet, his solicitors do have them.
Nicol J: Dated 2019.
Adam Wolanski QC: Have that.
Nicol J Woods, Rogers.
Adam Wolanski QC: Miss [Amber] Heard’s lawyers in the States to Mr Chew that’s Mr Depps’ lawyer.
Nicol J: I haven’t seen this before, so let me look and scan over it. Right I’ve scanned through that letter.
Adam Wolanski QC: What it is a request .. To permit Ms Heard’s lawyers to provide to UK proceedings, Australia drugs text and … Final paragraph, answer comes back on 16th January from Mr [Benjamin] Chew.
Nicol J: Just a moment. Right I’ve got the letter of the 16th of January.
Adam Wolanski QC: Can I invite Your Lordship to read it?
Nicol J: Right, just a moment. Yeah, thank you.
Adam Wolanski QC penultimate paragraph, Mr [Johnny] Depp does not authorise any matured confidential .. And Dr Kipper’s file
Nicol J: [not transcribed]
Adam Wolanski QC: extremely aggressive terms, making threats.
Nicol J: just before sign off, to extent comply with NGN’s she has provided…
Adam Wolanski QC: say can’t provide mine, includes Australia drugs text and extraction .. Revisited in another letter to Mr [Benjamin] Chew.
Nicol J: Just a moment, right 2nd of March.
Adam Wolanski QC: Can I invite to read that letter, another invitation to Mr [Johnny] Depp to allow .. To provide documents to the defendants in this case.
Nicol J: Yeah.
Adam Wolanski QC: You’ll have noted the concern of Mr Rottenborn that [Johnny] Depp is attempting to use [the] Protective Order to conceal .. In NGN [News Group Newspapers] .. Repeat US [United States] proceedings to .. Invite Your Lordshio to read in full sent in an earlier email at 8.19 I’m afraid, I am sorry this came in dribs and drabs.
Nicol J: This is the letter of the fourth of March?
Adam Wolanski QC: It is ..
Nicol J: Yeah.
Adam Wolanski QC .. Will seek all possible against Ms [Amber] Heard and counsel in US and UK litigation, saying if provide any of the documents in Australia drugs text.. Not only pursue sanctions against her personally, but against her lawyers in the UK [United Kingdom] litigation and the US [United States] litigation. With that in mind, I return to whet Ms Afia said at the end of her statement, “there has been no attempt by the”
Nicol J: striking to find…
Adam Wolanski QC: [Ms] Afia, “there has been no attempt by the Claimant to prevent the obtaining of documents by Miss [Amber] Heard even if those documents are in breach of US procedural law” – that is false.
Nicol J Yeah.
Adam Wolanski QC: What one has here, not just an attempt to prevent receiving documents from Ms [Amber] Heard, an attempt to suppress documents, that the disclosure has been inadequate and prevents from learning the Claimant has misled the Court. It is a systematic attempt to pervert the course of justice, she … an attempt to intimidate Ms [Amber] Heard who is the key witness for the defendants in this case. … [David] Sherborne … But in any event, it’s too little and too late, My Lord to wrap up all circumstances militate against granting application [for] relief [from] sanctions… Defendants at real risk .. Fair trial.. If deserves global vindication can achieve through US libel proceedings, those are my submissions.
Nicol J: Mr [David] Sherborne are you still there? Do you want a moment to reflect on what has just [been] said?
David Sherborne: Concerned about the time, [Adam] Wolanski [QC] taken over a number of matters, the majority of which not [to do with the] application breach.
Nicol J: Pause there after breach.
David Sherborne: [Adam] Wolanski [QC] took over 2.5 hours, the vast majority [do] not relate to breach. Your Lordship found …. do have a lot to say, not only … far … behind the way in which he has put his case previously and … impermissible to do so, I’m going to start …. may well take some time. When one puts to one side the extravagant submissions, … We say disproportionate to strike out, may well time and time again have to dip into what … Said… Defendant had opportunity but expressly disavowed that attempt, [Adam] Wolanski [QC] has asked you to make a finding test the Court was misled.. That the Claimant was guilty … to pervert the course of justice, we say is utterly impermissible, … And what the consequences … Throw an enormous amount of dust in the air … What the defendants … Material provided at the last minute … Didn’t reach me some of them or reach so late … Inappropriate and exceptional course insofar looked at previous conduct breaches by the Claimant, a Court ruling test, test the matter was in breach.
Nicol J: Looking at 3.9, application for any relief from sanction, Court consider all the circumstances of the case, …. argue it includes all the topics he is taking about.
David Sherborne If going to assert a breach of rule … rely on it as a substantive application the day before the hearing that the Claimant was in breach of the order of the 10th of March, could rely if sought a finding that Claimant in breach… The Claimant’s solicitors to the defendants, gave relief immediately because a mistake, the breach of [the[ Order found does not justify strike out… To ask you [to[ investigate other breaches which [the defendants[ say are more serious.. A proper opportunity, not on Sunday evening the night before the hearing. … matters that [Adam] Wolanski [QC] say is a “gross attempt to pervert the course of justice”, nowhere in any authority see that [has] been done, wrong in principle p, very little, sad about [the] consequences [of the] failure to disclose [the] Australia drugs text[s] .. Why we say it’s quite wrong to ask Your Lordship to make findings in relation to them, it is an unprincipled, exceptional course and goes against all the authorities. Far, far removed from the Holmes text, accuse Mr [Johnny] Depp of deliberately withholding, [**t (error?)**] worst of wholesale incompetence … Most extravagant allegations I’ve ever heard made … If this is the way defen[dants] seek to avoid trial .. We say, that this is all an attempt to distract Your Lordship from the three stage test, returning to that if I may, very long ago referred to stage 2 of the [**tear (error?)**] his principal point good reason normally where fault has happened outside the party’s control, .. Point [Adam] Wolanski [QC] started with.. I’m sure there is a good reason.. Ambit of good explanations not confined in that way .. Notes in the White Book, generally speaking circumstances outside the parties’ control .. Where one might call a deliver sure breach, where Claimant has deliberately refused to take a step, given numerous opportunities, bear in mind at stage 2, circumstances outside of control often a good .. Not payment of a fee or serving if a witness statement, the Claimant did provide, did carry out [the] steps within time limits set the position as yo whether reviewed under [CPR] 31.6 was correct, it not without any evidence that Mr [Johnny] Depp personally involved, to say Your Lordship could still find .. If trying to withhold them, it would just be a nonsense, the explanation in Ms Afia’s witness statement is a good one, it’s not incompetence if different detract view to Your Lordship,… Look through smoke and mirrors.. Whether there’s a good explanation the doesn’t get to [**steel reev (error?)**]
Nicol J: Yeah.
David Sherborne: Turning to stage three, authorities [Adam] Wolanski [QC] Global Torch and so on, Claimant deliberately breaches, not a misunderstanding but deliberately refused Wilson case, [unders]cores the Global Torch case anyway, start with looking at the Wilson case does Your Lordship have that?
Nicol J: Just a moment, the Wilson case, there are two Wilson cases, Wilson v Sinclair, yeah I’ve got that now.
David Sherborne: Look at paragraph 34, he explains the Global Torch case .. Observation .. Strike out of state my case most powerful unless justified sanction pursuant unless failed to comply earlier order requiring to sign a statement personally and he refuses to do so. [These] cases are deliberate breaches entirely different. Lord Neuberger then [**importer (error?)**] of litigants obeying,.. Almost inevitable, this … the disobedience as held Claimant’s solicitors didn’t fall within 31.6, [a] million miles away from cases [that] [Adam] Wolanski [QC] rely on. If the disobedience continues … Enforcement of sanction is inevitable … Failed to comply with Unless Order.. Litigant has been haven every opportunity to comply, not this case at all .. Go to what Ms [Amber] Heard says about the Holmes text .. See explains on detail … Failed convincing explanation two opportunities to comply of sign [the] relevant statement, Court would have set [**spa side echoed to do twice (error?)**] this is a very different case, [the] sequence [of] orders before [the] ultimate strike out. Lord Clarke, paragraph 47, [the] draconian step [of] striking out is always a last resort, then if Your Lordship I’m not sure if I need to take you to that, same point made I’m paragraph … A party, a recalcitrant .. No doubt he or she refused to do so, entirely … took a different view [of] different documents … Vast amount documents in paragraph 7.38, reference in skeleton argument [**summer navigation (phonetic)**] cases, absolutely clear what had to do chose not to do so. In 41, in my view point[s] overwhelmingly [for] relief from sanction …. Why .. Legat J not until Denton restatement, in Denton [the] weight [of] two factors left in no doubt, Lewison’s decision was wrong, permit me a minute to take to Sinclair and [**daw set (error?)**] at 43, page 33 of he judgement.
Nicol J: Paragraph 43?
David Sherborne: That was a security for costs case, there was [a] failure to pay the amount ordered, the last case is the [**Gladman (phonetic)**] case, … [Adam] Wolanski [QC] says you should treat any mistake [of a] solicitor as if a mistake of the party, take you to .. Does Your Lordship have that?
Nicol J Got 2019, 3.19 where failure to comply solely [the] fault of legal representative.
David Sherborne: Failure to … Case referred to in [**Gladwin (phonetic)**] .. In other found in favour of … One case Claimant suffer if case to an end and sue legal representative … insured.
Adam Wolanski QC: [I] hesitate to interfere, but could Your Lordship just read to the end of that paragraph where that is clarified?
Nicol J: [These] cases [were] decided before [the] reformulation of rule in 3.9.13.
Adam Wolanski QC: Including [**Gladwyn (phonetic)**].
Nicol J Yep, thank you.
Speaker Not Recorded: Can I now deal with the factors? The first factor, [Adam] Wolanski [QC] said each of enough in themselves, [the] March 10th order was an Unless Order.. Simply wrong .. Provided with attendance note.. Nothing in voluminous evidence that seeks to dispute that. “Your Lordship made it an Unless Order because of the time left before trial on 10th March” .. Only then be 5 working days before the trial, we did meet that deadline significant why made … Unless Order, not asking you to revisit it, the Wilson case had what I said about Global Torch … Either to sign [the] disclosure list from personally or … for costs, did disclose documents … in response to Your Lordship’s order, genuine misunderstanding regarding application if the test .. First factor in my submission, … not help the defendants at all points up this case and the cases of Mr [Adam] Wolanski [QC]. Second point is had [it] proceeded, [the] defendants wouldn’t have had … That is simply unsustainable .. Even if [it is] suggest[ed] Mr [Johnny] Depp may have obtained or taken them which they don’t directly say… Allegations at the heart of the Australian … Even for that one part if what Miss [Amber] Heard calls the 3 day hostage even for that … Extravagant, I realise why they want to avoid trial.. Can’t get any real suggestion trial materially unfair .. That exchange was provided by Miss [Amber] Heard in any event, the texts get then nowhere, they can’t make good … The consequences would be utterly disproportionate .. They ask you to make [a] find[ing] is that justify you make that step. The third factor say that the Claimant has misled the court, why they say was misled at the PTR [pre-trial review], I could take a lot of time dealing with this, it is ten past four, unfair [t]he Claimant [was] put in this position, I do reserve my position in relation to this. He started by saying the Court was misled, he then said it was a deliberate lie. When one strips away the hyperbole, the defendant didn’t put in an application … This is one [of[ … examples where is it said… Says you should make a finding, chosen not to apologise to the Court .. Not relied upon expressly as a breach, the next point [put to] us, Ms Afia has done her best to investigate, it looks like it [w]as disclosed twice in the US [United States] proceedings, I can take you through all the witness statements … that’s why it has an air of unreality about it. Ms [Amber] Heard …she has done some.. Limited to one or two documents they say 1 or 2 out of thousands, as far as any concern removed by Ms [Amber] Heard able to cross check anything and reveal anything to the defendants that is helpful to her. If anyone has been prejudiced by this, it’s Mr [Johnny] Depp while Mr [Adam] Wolanski [QC]… There is nothing in the take remotely … Harmful, one example of why [we] say that points out the absurd reality of the defendants’ extravagance, at tab 28. Yes I’m going to give you, I don’t have the PDF number, internal page argument 2, Defence complained should have disclose the fact found on the Claimant’s iPhone (page 496), can Your Lordship hear you all right?
Nicol J: I’m just trying to get have you [got] the hearing bundle?
David Sherborne: [I’m] told 516 of the electronic bundle.
Nicol J: Oh dear, I’m struggling to find the hearing bundle, but just a moment while I find it.
David Sherborne: Of course My Lord.
Nicol J Right, I’ve found the hearing bundle [what] was the tab number?
David Sherborne Tab 28, I think it’s [page] 515, interest page 15.
Nicol J: Tab 28, the witness statement of Miss Afia with exhibit..
David Sherborne: Part of an exhibit.
Nicol J: You were going to tell me the is [the page] number.
David Sherborne: 515.
Nicol J: Let me see if I can find it.
David Sherborne: I’m grateful.
Nicol J: [It’s] difficult with navigating around PDF documents is that you have you be so sensitive, I won’t complain, I’m very grateful to the parties for their efforts. I’ve got 515, it’s a transcript of.
David Sherborne .. One called Argument 2.. As opposed us … said that we grossly misled the Court … relied in somehow the defendants can’t have a fair trial, this was disclosed .. You can bet Miss [Amber] Heard would have provided it, just one example how essay it is to puncture the defendants’ extravagant submissions, …. the, we don’t deserve public taxpayers money spent in this case .. Bear in mind this was disclosed in February … There’s nothing in here that would help Ms [Amber] Heard, got internal page 15 another one of arguments between Ms [Amber] Heard and Mr [Johnny] Depp you’re going to have to listen to a lot.. Doesn’t accuse him of beating her up or grab by the throat … Here he says you’re lying, I watched you lie.. You’re full of **** .. We’ll talk to Travjs … You run with it … No you haven’t .. Hey, tell Travis you said go do that.. Travis us being called into an argument .. That you punched me .. And I watched you lie … Amber [Heard] says I didn’t punch you.. I just … you across the face .. Babe you’re not punched … Lot of fights .. When you ****ing have a closed fist … Talks over … sorry I hit you … Didn’t ****ing deck you, I didn’t hurt you I was hitting you … Says toes hurt smashes a door into his face .. Ahh your poor toes you’re a ****ing baby, .. You’re such a baby obviously very controlled and bully … given the admission by Miss [Amber] Heard, I did start a physical fight’ that’s what .. Yeah you did get the ****.. Admirable … What’s your excuse .. One example of this tape .. The provenance not properly .. Just the provenance of it .. Idea … misleading the Court is just absurd … point is when you look at Ms Afia’s witness statements entirely relates to who it was the disclosure exercise by the Claimant’s solicitors… Just because they have made some mistakes in the context of hundreds of thousands under the guillotine, if an Unless Order … does not mean deliberately misled… got to [the] whole exercise has to be redone, nowhere … ask Your Lordship do that originally, ask [for[ all texts to do with drug taking .. Couldn’t go anywhere .. Texts, just 1 week before 4 of the 14 incidents, as I say, when you go back to the recordings and what was said at the pre-trial review, just another example of a handful of dust .. If [the] defendants wanted to make it a breach application .. What it is trying to, first, is to get it in via [the] back door.. Just have to accept what [Adam] Wolanski [QC] says docum[ent] that .. Properly established not on a Sunday night at speed, of him is responsible document … let Mr [Adam] Wolanski [QC] cross-examine him to that effect Mr [Adam] Wolanski [QC] took 2 [and a] half hours to do that, rather than [a] mini trial on complaints the defendant[s] had .. Can’t possibly trust what Ms Afia says because of a bald assertion of Mr [Johnny] Depp’s … involvement, she gave a lengthy explanation as to how it came about, find her 7th witness statement at tab 42.
Nicol J: Tab 42
David Sherborne: My Lord, yes and you’ll see she sets out there.
Nicol J: What paragraph?
David Sherborne: Paragraph 6. Allegations are … didn’t a solicitor … an officer of the Court, Your Lord doesn’t need to be outrageous … Before making such outrageous .. “Undertaken in good faith” .. Only matter had done on other matters instead me [Adam] Wolanski [QC] tries to draw inferences .. And then she says they’re going to disclose the further texts .. Undertaken in good faith, background in 9-11 said this different deadlines .. A team, almost working around the clock, reached the last deadline by 14th March [and[ complied with all of the eleven.. In one of them .. Not correct .. The scope of the disclosure exercise .. Any credence to [**sor (error?)**[ of allegation how hang? There were 142 documents, some may be few, [some] large, some composite texts … conducted a review we all done by Schillings … [Adam] Wolanski [QC] tried to nit pick as say.. Seriously one does have to apply a bit of reality to this .. Had actually disclose[d] in America, trying to tie together not assure then talks about the specific approach [Adam] Wolanski [QC] only took 22-25, here … explains [the] exactitude [of] what’s she’s done .. Too restrictive in our approach.. They repeated the work and .. Throwing round all sorts, can’t trust them to … the exercise solicitors [are] officers of the Court.. They applied a test that was too restrictive… Not the first time that solicitors have done so, much more limited exercise not completely in refused, .. [Adam] Wolanski’s position.. Of course [the] Court [can] then be satisfied .. [Amber] Heard provided anything .. There’s no answer to it .. No attempt [to] hide .. Client already expected by Schillings had nothing to find with the Claimant not get [Adam] Wolanski [QC] to pick holes .. If he share to cross examine Mr [Johnny] Depp at trial, that is fine … That’s the actual breach, they were not deliberately .. Wilson case and Global case won’t help him. Fourth factor, [we] say Ms [Amber] Heard threatened and intimidated. Your Lordship has seen the contemporaneous .. The US [United States] letters if they had been out forward as a .. What is meant to have been heard we know Ms [Amber] heard … correspondence provided all sorts of documents to the defendants, Ms Afia .. Gave an undertaking … Not the first time that Ms [Amber] Heard or defendants don’t remember not … involved .. Applied stay [the] entire proceedings said .. Wording of divorce … The Judge heard there was no basis for doing so, Afia in letter right at the end of the bundle.
Nicol J: Which tab?
David Sherborne: Must be tab 45, 11.8.6 should be the last document in the bundle [Adam] Wolanski [QC] .. All done yesterday [by] letter in the 28th of June.
Nicol J: I’ve got that letter.
David Sherborne: .. Emails by .. Lawyer Benjamin Chew .. The email sent by Mr [Benjamin] Chew to .. Breadhoff .. No .. application [in the] US [United States] libel proceedings .. Not take any steps to prevent the access and I’ll come back [to[ that, .. No steps [to[ prevent access to documents .. That
David Price QC: Here, … pushed back the end time for the afternoon, got a meeting at five another …. pass.
Nicol J: Grateful to you for your latitude, what to deal [with] all matters [in the] time [this] afternoon, either parties or the Claimant and your client .. Sorry if causes you inconvenience, [but] needs must at this stage, that’s the position. Mr [David] Sherborne please continue.
David Sherborne: Said that wide have reharding disclos[ur]e the Holmes’ texts, Miss [Amber] Heard has not been prevent[ed] in any way, made it clear take no steps to do so, a gross attempt by Mr [Johnny] Depp to pervert the course of justice, we say the exercise with it the basis of an application notice, criminal findings that came out of Mr [Adam] Wolanski [QC]’s mouth and accuse my solicitors.. How absurd .. How desperate they are to avoid trial? Move on to the fifth fact, Mr [Johnny] Depp has made his position clear. Mr [Adam] Wolanski [QC] now says there couldn’t possibly be a fair trial, that goes so far beyond the breach found, it is utterly ridiculous… Only matter relevant as a consequence.. Been reduce as Ms Afia says .. Without the benefit of any application .. “Grossly incompetent solicitors” [when you] strip away [the] extravagant language, three things. [It] was a fourth fact that Ms Afia, in her witness statement told the Court that [the] recording was … Even though [it] looks as if [it] was on his iPhone that forms part of the extraction report .. It doesn’t take the defendants anywhere.
Nicol J: Can I encourage you again not to repeat points you’ve already made and I’ve understood?
David Sherborne: One is the recording, the second is the texts.. The defendant[s] were aware of it.. Bring an application for specific disclosure .. Another allegation made by [Adam] Wolanski [QC]’s without any basis at all stuck in .. There [are] things [we] say the Court should conclude. Fourth matter, [the] declaration of Mr Murphy.. A document was not in Mr [Johnny] Depp’s possession… Asked you to look at it, realised he was taking you to the [**jurors (error?)**] declaration, even if you allowed to take it into account, the breach or … Holmes text, the sixth of 7th is vindication. Mr [Johnny] Depp and [Ms Amber] Heard are American, numerous libel trials for claimants … not here .. Worldwide reputation “is a household name here” .. Would have been no story or make allegations .. Damages claimed are only in this country… May feel the allegations may have .. Claim is confined to the United Kingdom, defendant published here [Adam] Wolanski [QC] tried to introduce a number of texts say [Johnny] Depp responsible .. If .. hopelessly say .. If there is a trial in Virginia at some point next year, be a very different hearing, [the] verdict of a jury [and] not give rise to a reasoned judgement, one of [the] main reason of justifying .. Why juries [were] abolished .. Jury trials .. Particularly long .. Pick over document .. Inconsistency .. 14 different accounts of violence .. Why a reasoned judgement is so important, important for vindication in defendants published final reason is resources, it is right because of COVID [to] give 5 courts to this, [it] would always be the case, therefore to pray in aid [that] the British taxpayer has had enough from this, particularly a newspaper like the Sun [that] benefitted..
Nicol J: [I] understand [the] point [about] resources, [but] don’t find into it.
David Sherborne: All restrictions take a moment to check.
Nicol J: Don’t know which team speaking to you.
David Sherborne: Not mine [Adam] Wolanski [QC’s] team.
Nicol J: Sure, [is there] more [you] want to say?
David Sherborne Nothing more to say on point, response relief from sanctions.
Nicol J: [I’m] grateful for [the] submissions … a decision in writing, given the time where we are this evening, not trying to give an ex tempore judgement. [For the] purpose [of] matters outstanding [you] should assume [the] trial should proceed … practical assumption people need to [**pieced (error?)**] with
David Sherborne: Then turn to the … matters
Nicol J: Take a 5 minute break, opportunity to stretch their legs, [it’s been] three hours since lunchtime ..
Hearing was adjourned at 4.59 pm.
Hearing resumed at 5.05 pm.
Nicol J: Do we have Mr [David] Sherborne?
Adam Wolanski QC: Can’t hear you.
Nicol J: [I] can hear you, I think the problem must be at your end Mr [David] Price [QC], Amy [Baker], perhaps you could get in touch?
Amy Baker: Sorry I was muted, yes I will do.
Nicol J: I was asked by the way [Adam] Wolanski [QC] and [David] Sherborne.
Adam Wolanski QC [not transcribed].
Nicol J: Don’t know why [the] microphone may be mute, Mr [Adam] Wolanski [QC]. Amy [Baker], can you tell [Adam] Wolanski [QC] microphone seems to be muted?
Nicol J: Now it seems to have been disconnected..
Amy baker: I’ll see what’s going on.
Nicol J: [David] Sherborne and [Adam] Wolanski [QC] asked whether view reservation relief of sanctions visit to Court tomorrow I go ahead it should?
Adam Wolanski QC: Can you hear me, couldn’t hear you?
Nicol J: Just be saying, [I] asked whether the visit to the Court to see the arrangements going ahead tomorrow, given [I have] reserved [the] decision [for] relief from sanctions, wait for Mr [David] Price [QC] signify he’s attending, an issue.. If the trial does go ahead, everything premised on that .. Issues of witness only provided witness summaries… Ordinarily stands as their evidence in chief some of the rules about witness statemeents carried over to witness summaries, [the] rule that stands as evidence in chief … one if them can’t remember whether [the] Claimant or defendant[s] only had summaries?
David Sherborne: Defendants.
Nicol J: Mr [Adam] Wolanski [QC] think how such evidence in chief given?
Adam Wolanski QC: [Racquel] Pennington, now served a [witness] statement .. originally [a] summary, now a [witness] statement, [I’m] trying to work out which [if] any other witnesses.
Nicol J: May not have caught up, ask you to think about that with your team and let Amy Baker know what your proposal is.
Adam Wolanski QC: Assume not something immediately.
Nicol J: [I’d] like to know immediately, got Mr [David] Price [QC].
David Price QC: [not transcribed]
Nicol J: Able to hear you, can you hear and see me?
David Price QC: I can.
Nicol J: I’ve reserved my decision whether the Claimant should have relief from sanctions, [I] want to deal with any other outstanding matters .. On the premise I will give the Claimant relief from sanctions, [David] Sherborne it’s your application for third party disclosure agaisnt Miss [Amber] Heard.
David Sherborne: Our application to rely on Mr Murphy’s evidence no objection?
Adam Wolanski QC: Don’t object, hearsay regarding one of exhibits that’s consented to.
Nicol J: Other matters?
David Sherborne: [Amber] Heard, one of defendants team refer to as said right at outset witness state that it Miss [Amber] Heard we don’t oppose permission for and witness statements of Miss Pennington, this brings us to third party disclosure.
Nicol J: This is your application.
David Sherborne Try to take relatively quickly .. Starting point is requirement of 31.17 .. Particularly in 31.17(3) those are the threshold requirement likely support case [of the] Applicant .. Disclosed necessary, dispose fairly of [the] Claim or to save costs .. May well .. may well await … get through [the] gateway, then through the discretion as said [in] the White Book, broader consideration .. The Mitchell v News Group [case], [it was] in [the] public interest to have all relevant … Andrew Mitchell suing News Group, ordered third party … outweighed third parties’ … namely police officers. Ms [Amber] Heard coming along to give evidence [is] no ordinary third party, I know Your Lordship wouldn’t want me to repeat that we heard … provide whatever
Nicol J: Can you just help me with locating the tab [of the] proposed order?
David Sherborne: Tab 27, page 426 hoping someone .. magically.
Nicol J: Got the application, … draft order attached to it.
David Sherborne: Yes, just behind that.
Nicol J: Perhaps we could go through each of the documents you are seeking [and] how you say the threshold conditions in 31.17 are satisfied?
David Sherborne: If we start at 1, (a), (b) and (c) all relate to recordings, we no longer pursue (b), that [is] set out in our skeleton [argument].
Nicol J: No longer pursue (b).
David Sherborne … San Fransisco audio recording .. And Miss [Amber] Heard 22nd July 2016 in San Fransisco audio is of poor quality, defendants say seeking to rely only on a small section, we want to rely on other parts now been confirmed it comes from Ms [Amber] Heard.
Nicol J: Which statements?
David Sherborne … Recording without Mr [Johnny] Depp’s knowledge or consent. Can tell from rid of tape and Miss [Amber] Heard lies and says she’s just started it
Nicol J: Back to [the] threshold how [do you] say [it’s] satisfied?
David Sherborne .. Doesn’t sound like a full.. The full recording have the full audio there are sections one can’t hear properly.
Nicol J: What’s the issue on the pleadings that this goes to?
David Sherborne: Easiest way to through Ms Afia[’s] witness attempt made on 22nd July 2016.
Nicol J: Alluded to the lateness of the hour, [would you] like a longer break before [you] make your submissions?
David Sherborne: Trying to cut short, [I] appreciate Your Lordship won’t have had a chance to read … Miss [Amber] Heard has obtained a domestic violence order [she] got in May [that] extends in June, at this time [it is] still in place, despite that meets … on own to discuss her divorce, … fear of her life, has this meeting with him .. Allegation (k).
Nicol J: Which [is it] relevant to?
David Sherborne: [the] allegations [she is in] fear of her life, references to her saying will you hug me? You’ve have accuse me of all this **** and you want me to hug you? Also … gives an account [of the] night of [the] birthday party in these paragraphs alleges Claimant attacks her .. Didn’t want you to go to [**cochela (error)?**] .. …. so at for punch
Nicol J: Depps give evidence that happened.
David Sherborne: She doesn’t deny, she just responds by say[ing] I love you.
David Price QC: What he’s asking [for is the] best possible version, she’s got. [I’m] not clear why we have agreed without in any way accepting [the] gateway, we will try to find out whether there’s a better version …. pages and pages of transcript …. hatred in skeleton arguments … specious passage [Johnny] Depp attach some significance to said the transcript eroded .. No way satisfies.
David Sherborne: Your Lordship, how likely to support.. Not going to say anything more what the raw recording .. Want it in native form.. These sections likely to assist us at the moment inaudible part only thing defendants have what she gave them why say satires 31 ..
Nicol J … or to save costs.
David Sherborne: Not sure costs in this part.. Claimant criticised roundly …’ presumes there’s something that’s helpful to her, in order … have the parts inaudible, that is a matter [of]fairness … cherry-picked a version.
Nicol J: Just a minute, Mr [David] Price [QC] ask [David] Sherborne complete, you will have a chance to respond.
David Price QC: .. like to.
Nicol J: [I’m] not trying to shut [you] up, just trying to run this in an orderly fashion.
David Sherborne .. Not got a witness statement in response, in any view chosen …. documents this particularly copy of this … said the raw … then to some extent is a sterile debate. You’d .. understand [to] look for the best copy, we’re looking for the original copy, is no[t] original copy .. Why say 3(a) and (b) can’t be given by defendants set out the deficiencies, why we believe may assist us. [Mr Johnny] Depp[’s] understanding of recording says can’t not can don’t know us seen … Somewhat sterile paragraph 35 of our skeleton [argument] if Your Lordship just look as one example.
Nicol J: Just a moment.
David Sherborne: And then you look at [paragraph] 36 and I needn’t say any more and Your Lordship will,
Nicol J: Sorry, I’ve not been able to find your skeleton [argument] on this topic, ah yes I think I’ve got it now, no, that’s Mr [Adam] Wolanski [QC]’s.
David Sherborne: It was sent yesterday at .
Nicol J: Now I’ve got it, remind me of the paragraph numbers you want me to look at?
David Sherborne: 35 and 36.
Nicol J: I thought I had it, but I think I’ve got .. wrong one.
David Sherborne: Shall I give Your Lordship the time of the email? I think Ms Wilson just sent it to Ms [Amy] Baker.
Amy Baker: I’ve just sent it to you.
Nicol J: Amy [Baker], did you say you’ve just sent it to me? It hasn’t come yet. Ahh yes it’s just come.
Amy Baker: Great.
David Sherborne: Paragraph 35 and 36 may be worth stopping on, paragraph 15 that is an overarching paragraph of relevance 15.1.
Nicol J: Yep.
David Sherborne: Yep does Your Lordship have 35 and 36?
Nicol J: Yep.
David Sherborne: .. If you look at 35 and 36.
Nicol J: Yeah and 36!
David Sherborne: And then Your Lordship has the point.
Nicol J: Anything else you want to say about that particular recording?
David Sherborne: No.
Nicol J: Let’s turn to the next item you’re seeking.
David Sherborne: Not seeking (b), in (c) we are seeking parts Miss [Amber] Heard and [Johnny] Depp refer to as the Toronto tapes so Your Lordship understands, can I take you to tab 28, the exhibits of Ms Afia’s witness statements, I think it may be [page] 502 or that’s where it should start, does Your Lordship have that?
Nicol J: Tab 28.
David Sherborne: Starts at page 502, think it’s 502.
David Price QC: [What is the] internal page number on [the] exhibit?
David Sherborne: Page 42, may have done my maths incorrectly what does page 502 look like?
Nicol J: PDF 502, [I] asked people [to] give PDF page number references …
David Sherborne: There have been pages been added. Go to page 505, section of transcript where they talk about the Toronto tapes .. Does Your Lordship have that?, “When did I get another room in a hotel?”
Nicol J: I think.
David Price QC: I can’t find that.
David Sherborne: Mr [David] Price [QC’s] benefit [it] is page 44, for Your Lordship, [it] should be 505.
Nicol J: Oh dear.
David Sherborne: I’m sorry.
Nicol J: I’ve now lost completely the Acrobat PDF.
David Price QC: Page number at the bottom.
David Sherborne: Three on right, none refer to [the] number in [the] PDF bit, like jr hard copy not assisted got 485.
David Price QC: Gave number internally from exhibits.
David Sherborne: I think the number is 44 exhibit number, internal number of transcript, .. E number one his Lordship is working from ..
Nicol J: Now errm, Mr [David] Sherborne, the last regret ever that you gave me was which page?
David Sherborne: 505, My Lord.
Nicol J: Transcript of argument 2.
David Sherborne: one I showed you komenst who was showing you the punching .. Context argument of relief from sanctions.
Nicol J: Which is the section regarding the Toronto tape?
David Sherborne: .. Texted [**Stephen (phonetic)**] or Nathan in Toronto .. Another room when they have a fight he runs away .. Not going to validate my reactions .. No, I’m talking about in Toronto .. Poke an animal enough…. Same .. Not stared the fight by saying going to get another room.. Source of dispute .. Depp back Toronto .. Depp says this send me the tapes .. I’m not saying another ****ing word .. Old fights …. Get dressed never try to work it out .. Never self sooth .. Amended Defence say Mr [Johnny] Depp controlling and abusive.
Nicol J: When did [the] conversation allegedly take place?
David Sherborne: 2015 …. Got the tapes .. Why di[d]n’t you send me the ****ing recordings she says, I will. May well assist on the allegation was he controlling and abusive or was it the other way round .. But she didn’t .. More reference [to] Toronto, they exist.. The Claimant’s case, central allegation .. Understand some time in 2015 during the middle of a number of these allegations alleged [to] start in early .. After [they] engaged in 2015, through 2016 to May, we say they exist, they are partly to support and necessary to support fairly the Claim, you can imagine what would get said if we had these.
Nicol J: Remind me where the draft Order is?
David Sherborne: Tab 27, let he see us I can find.
Nicol J: I’ve got tab 27.
David Sherborne: Then we’ve got 1(d) just to cut short various allegations of injuries supposedly a yard by Mr [Johnny] Depp been provided with some of them .. Made sure any photos rely on in realtor I the damage, we haven’t had that in a witness statement.
Unknown Speaker: Yeah that’s … relatively straightforward those would obviously be relevant then we have (e). (E) and (f) relate to two extra marital affairs or extra relationship affairs we say conducted (e) James Franco and (f) which we understand to be Elon Musk, we set this out in the paragraphs of our skeleton [argument], part of the defendants’ case was Mr [Johnny] Depp’s paranoia, had mistaken belief she was having affairs that caused her to get violent.
Nicol J: Whether he was right or wrong what bearing does it have on whether the violence took place?
David Sherbornee .. Because [of] taking drugs Mr [Johnny] Depp was said to get more physically violence, Your Lordship held … relevant …. Paranoid allegations .. Caused him to get violent .. In fact she was having extra marital affairs.
Nicol J: How does that bear on whether the violence was taking place?
David Sherborne: Because if she was, there’s no paranoia, given her case was that she was so controlled and … doesn’t sit with the fact she was having multiple affairs during her relationship .. They accept it is relevant.
Nicol J: At the moment, eh, the Respondent is not the defendant[s] it’s Ms [Amber] Heard herself.
David Sherborne: If she’s given a …. motive for the violence, Claimant have one hand tied behind his back.. You’re not going to allow Ms [Amber] Heard to provide further documents?
Nicol J: [I’ve] not made a decision, just probing your argument.
David Sherborne: Do need to take you to the … Defence .. Entitled to .. Falsely accusing her of having affairs .. Don’t see .. relevant goes to pleaded allegation and underlines her account .. If you need me to take you to the pleadings I will, Mr [James] Franco dealt with at (e) .. CCTV shows Ms [Amber] Heard intimately engaged previous co-star, footage [of the] penthouse .. When police are called to the penthouse and the two are intimately embarked in the lift.
Nicol J: Right yeah.
David Sherborne: Asked for the communications between them [from] 21st April to the [**unclear**] May, in order to challenge, …. relationship, one of the names mentioned …. as a false allegations, now Mr [Elon] Musk is in relation to (f), also an exchange with Mr Musk referred to in Ms Afia’s witness statements.
Nicol J: This is tab 28, isn’t it?
David Sherborne: My Lord, yes.
Nicol J: Yes, which paragraph?
David Sherborne: It’s the exhibit, it’s 547, I don’t know what number that is on the PDF. Does Your Lordship have [it]? [I’m] trying to think what numbering probably 563, 567, thank you, does Your Lordship have 567?
Nicol J: I did a minute ago, but it’s just slipped away. Apologies for this.
David Sherborne: No I understand.
Nicol J: Now 567, which is where I am PDF 567.
David Sherborne: My Lord, should be a series of text exchanges.
Nicol J: Just a moment, yes now I do have 567.
David Sherborne: The custodian is Amber Heard, .. The nickname rocket man next to the telephone number, [Elon] Musk is the founder of Space X and tests rockets, only … after the last incidents, alleged incident of violence, here is only a fraction of it, her first test, for such a smart man, I’m sure you wouldn’t need .. J violent in past… It did not that’s irrelevant, I had the locks change[d], .. Restraint order and all that .. What the **** but you’re ok right? .. Happy to engage 24 hour security .. All that’s irrelevant, relationship in the past .. Sorry for bring an idiot.. Previously in contact .. Only matters because I really like you … Here of you want to ring .. Hours after .. Counted if a relationship .. Now publically Ms [Amber] Heard and [Elon] Musk had a relationship after her and Mr [Johnny] Depp split up, take to [page] 213 [in the] e-bundle.
Nicol J: 213.
David Price QC: w.
David Sherborne: [The] witness statement of Mr Romero served last year in December, this is part of Mr Romero’s witness statement take one paragraph by way of example, Mr Romero is one of a hundred of security and concierge [staff that] supervise the East Columbia Building, it’s a very large apartment block, .. Including for example giving access to guests of Miss [Amber] Heard, from March …. Onwards .. Visited regularly late at night by around 11 pm to midnight by Elon Musk, for his … only all visits … receive[d] a call from Miss [Amber] Heard, give Mr [Elon] Musk access to the garage .. Access ..after a few visits .. Gave a fob to garage .. A few times a week.. Always when Mr [Johnny] Depp not at home .. One if the pleaded allegations [in the] Confidential Schedule not read for obvious reasons, page 110 of the bundle.
David Price QC: Paragraph of the Confidential Schedule?
Nicol J: Just hold on a moment.
David Sherborne: I’m sorry, that’s just an example,.. When one turns to 31.7.3(a) text communication asked for [Elon] Musk [with Amber] Heard, we say they are likely to support our case .. Not get [this] from defendants because of the imbalance.. Because Miss [Amber] Heard say … Can’t be right for fair disposal not be allowed this documents, we say are likely to exist.
Nicol J: [not transcribed]
David Sherborne: Right that is it, .. We do say as a matter of discretion, taking into account the public importance and Miss [Amber] Heard through the defendant, [Adam] Wolanski [QC] said on behalf of Miss [Amber] heard repeated publically as have allegations of freeze after a ties us to [the] Mitchell case .. White Book.. [Amber] Heard not merely a mere witness, say article 8 rights, intrigue say unusual type of situation should be granted .. Necessary and proportionate these are my submissions.
Nicol J: Mr [David] Price [QC]?
David Price QC: Do you have my skeleton argument?
Nicol J: I do, but just let me get hold of it, I’m going to have to reopen it again. Remind me when you sent it to my clerk please or just the day?
David Price QC: Saturday.
Amy Baker: I sent it to you ..
Nicol J: Yes now, I’ve got your skeleton [argument] Mr [David] Price [QC].
David Price QC: Had an opportunity to read it?
David price QC: [I was] only instructed on Friday and application … served on Friday, sought to do the application falls at the first hurdles doesn’t get through gateways don’t have to come on to discretion of [the] Court, my client would have been prejudiced that there’s such late service of this application, what as suggested witness statement Ms Afia.. My client was not in the jurisdiction, could have asked her voluntarily.. Or instruct [a] solicitor, only thing new recording that’s new is 1(a) in the order, 1(b),
Nicol J: 1(b) is not being pursued.
David Price QC: references to … in in 1(b) published in the Daily Mail, so they’ve had 1(b) for a long time, the Toronto element .. Failure to disclose photographs, the notion my client had been having affairs has been run as part of the publicity campaign.. Footage from the video has been online for about a year now.. Why so late in the day? .. If through [the] gateway.. Schillings explain further the basis .. It is a requirement that it is supported by evidence and decided by reference to evidence relied on [in a] witness statement of Jenny Afia cannot be amplified on, [for the] gateway to even be considered, [not] solely witness [on the witness] statement of Ms Afia as to … itself, skeleton argument appears to be derived from an error in the disclosure text in [**Matthews (phonetic)**] and [**Madoc (phonetic)**] don’t know if [you have the] White Book to hand?
Nicol J: got [the] 2019 [White Book].
… [not transcribed]
David Price QC: … likely to support the Applicant .. May support… case paragraph 5 of the skeleton argument on behalf of the Claimant states mistakenly .. One or other party, the evidence has to demonstrate the disclosure is likely to support the Applicant or adversely effect.. Has to assess whether evidence, assuming it exists, likely to support Mr [Johnny] Depp’s case or harm [th]e case of News Group Newspaper, if [that is] not satisfied [it is the] end of [the] application, .. Disclosure is necessary, or in order to save costs .. Otherwise rule would .. Quite a draconian steps [to] bring in third parties and demand documents from them, we would dispute. She has come to this country to seek some vindication, “any assessment of her role only arose” , “got to the discretionary stage”. The word .. Used in 31.17 refers to pleaded case by the Statement of Case, didn’t see your draft judgement handed down this morning when [I] wr[o]te [the] skeleton argument .. [**Paddock (phonetic)**] case just … something witness statement .. Cannot be .. Inter partes, Applicant tied to issues on pleaded case and evidence surplus the hurdles obligation on [the] Applicant [to] provide the Court with sufficient information in order [for the] Court [to] make [a] finding and compel [a] third party [to] make disclos[ure] .. Rightly show .. Power, not fishing expeditions [on] third parties.. Look at grounds [of] each categories of disclosure .. Start off with 1(a), notwithstanding the offer to look for the best available copy quality of recording and without any admissions compel my Client to do that, [it] seems the Claimant is still persisting .. Make clear terms of the offer.
Nicol J: Got [it] in writing?
David Price QC: [I] can forward your Clerk [Amy Baker] the letter which contains the offer .. If gateway and decision on discretion tea you ought I see the offer that has been made I have fowarded to your Clerk now.
Nicol J: Mr [David] Price [QC] went silent, thinking?
David Price QC: [I was] trying to think how deal with email, [I] can read out what [the] letter said, paragraph 35 of skeleton [argument] identifies a dispute of [the] transcript attributed directly to Court bit took me too Mr [Johnny] Depp saying something positive should be in … negative, my client is willing to check, the best and the rawest available and provide a version if … is key that is better and rawer than you’ve got already .. That was to avoid having an argument about this, with that in mind, could you go [to] the witness statement of Miss Afia?
Nicol J: Which tab?
David Price QC: Tab 28.
Nicol J: Just a minute 28, is Miss Afia’s ..the witness statements.
David Price QC: Perhaps one should start page 3, paragraph 15 and it says this application Miss [Amber] Heard in the United States .. When she’s in the jurisdiction, .. Not applied for permission to serve in the United States .. In paragraph category 1(a), a point about what not in witness statement, not suggested selectively to the …
Nicol J: Claimant or Defendants?
David Price QC: Cherry picking that is not stated in witness statemenets no evidential basis to ready such a conclusion shouldn’t have been jumping up and down virtually, quite a lot of interest more widely .. No evidence .. Knows is harmful to your account in relation to 1(a), what had been disclosed [was[ a recording and a transcript of this conversation. That transcript starts in page 17 of the exhibit, it’s easier if I deal with internal page numbers.
Nicol J: Ask somebody else to give he the PDF number ..
David Price QC: I di[d]n’t have.
Unrecorded speaker:I’ll ask.
David Price QC: 16 of the exhibit.
Adam Wolanski QC: Which page in the hearing [bundle]?
David Price QC: [not transcribed]
Unrecorded speaker: Page 16 of exhibit to what?
David Price QC: Miss Sofia’s witness statement ..
Kate Wilson: I think it might be 477.
Nicol J: Simons Muirhead [& Burton] letter of the 16th June.
Kate Wilson: 477 of the PDF.
David Price QC: When the recording and transcript is disclosed, appears to contain an admission… Transcript can see on heft page quite a lengthy transcript … Parts are indecipherable goes on for 19 pages.
Nicol J: Mr [David] Price [QC], you’re cutting out, how?
David Price QC: Back, … I …. witness statements it Miss Sophia, now an .. at paragraph 16, page 4 of the statement.
Nicol J: Which paragraph are you saying?
David Price QC: Recording of 22nd July 2016 .. Reference to [the] letter … took you to, said the transcript is not agreed, the Claimant has not put forward an alternative transcript. [It is] not in dispute [that] …. travelled there and met. … conclude that the provenance just [to] be Miss [Amber] Heard. In paragraph 21, he suggests that Miss [Amber] Heard did not tell the truth … Going … Not relevant to the issues, which is the … another document going to tick the boxes for 31.17 and the evidential basis .. Paragraph 23 said recording [was] made without consent .. 25 is deficiencies in documents, it’s clear the conversation[s] are longer, parts are of a poor quality, transcript [was] not agreed, want a better audio file, don’t agree with the transcript of that particular part, also disputed seeks an order [that] [Amber] Heard produce [the] original, where is the basis for concluding this is good? It may well assist the Claimant’s case or harm …, not saying actually did hit, make any reference to head butting, not giving Your Lordship ask my Client to go on a hunt [for a] better version that that’s going to help the Claimant where’s the evidential basis? .., basis necessary [for a] fair trial for this to be given for completeness, [David] Sherborne took [you] to a passage [in the] skeleton argument, not headbutt, not positive to negative, what prompted me [to] volunteer [to] see if [a] better version [was] available.
Nicol J: [not transcribed]
David Price QC: In addition,
Nicol J: I’ve lost that, remind me Amy [Baker], when you sent to me [the] Claimant’s skeleton argument for this aspect?
Amy Baker: Sent it to you this morning at 8.07.
Nicol J: Yeah, I’ve got it now, which paragraph did you what me to look at Mr [David] Price [QC]?
David Price QC Paragraph 35, My Lord.
Nicol J: Yep, “withstanding the above”.
David Price QC .. In skeleton [argument] .. Don’t see the obvious significance .. Doesn’t allow Your Lordship [to] conclude a further version .. May well materially .. [Johnny] Depp’s case, not sure what the point being made, three (p), what they really say … Not it’s deficient but very helpful to their case. Go back to page 6 of the witness statement, paragraph 32.
Nicol J: “from the above matters it would appear Miss Heard”
David Price QC: inconsistent account, then a further point made recording all very good if [the] trial comes before Your Lordship ordering my Client to provide something she may not have, the options are support the case of the Claimant or … Just refer to supporting the case of the Applicant which will adversely affect the case of the defendants’ evidence in relation to 1(a), 1(b) is not pursued,
Nicol J: 1(c)?
David Price QC: Reference to Toronto daily … takes.. 48 again taken to by [David] Sherborne.
Nicol J: Mr [David] Price [QC, I] don’t need [you] to … through every paragraph, unless [there’s] a comment or submission you wish to make.
David Price QC: Paragraph 49, seeks an order .. All three of the … nature and state .. Necessary .. Fairly .. May the test it it’s an inter partes application .. action what it is .., what’s the evidential basis doesn’t say that conversation in Toronto .. None of that, move onto 1(d) which is all photos created by third party, during or in connection [with] domestic violence … said some photo[s] taken, [a] number have been disclosed, 50-55 records observations about .. Native format every photo.. What [i]s the basis [they] say help[s the] Claimant’s case? What’s evidence say do commit domestic violence? Then onto (e) and (f) alleged extra marital relationships, just deal with before the Court not jury points … [David] Sherborne made what’s the relevance .. Has to be to statement of case, only things … are paragraphs of [the] Confidential Schedule.. Also necessary [to] look at [the] response paragraph in to which not what’s in the witness statements Confidential Schedule to the Defence found at end of the Defence in tab 8.
Nicol J: Just a moment, let me turn that up, again I’m ho[pi]ng ask of anyone can help with the page reference on the PDF?
Adam Wolanski QC: Which bundle?
Nicol J: Tab 8, page reference to Confidential Schedule.
Unrecorded speaker: 110 of the PDF bundle.
David Price QC: Paragraph 1 starts “during the course of”.
Nicol J: Just a minute now, I’ve got the “firing the course paragraph 1”
David Price QC: There’s an act described, “affair with her co-star”, that’s a taunt then obviously need to look at the amended reply that’s at the end of tab 9.
Nicol J: Just a minute, ok now I’ve got the Confidential Schedule to the reamended reply.
David Price QC: Paragraph 1 …
Nicol J: Paragraph 1 is denied?
Unknown speaker: [It is] said that the Claimant didn’t act in that manner, wasn’t irrationally jealous, extra marital relationship, have to identify for … if [the] Claimant felt helpful to [his] case if it’s jealous does not matter whether irrational or rational, women allege domestic violence .. Given rise to a reasonable perception of jealousy, particularly careful when dealing with domestic violence, [the] litigation is very high profile, [we] know agents of the Claimant have been feeding information to the media, footage of lift.. By Claimant .. Discourse falls at first hurdle no issue as whether had affair with Elon Musk certainly wasn’t a co-star or James Franco, that’s the end of any application under 31.17 based on it make a further point, not even an evidential basis my client was having an affair with either man .. Back to witness statement, it … Miss Sophia …
Nicol J: Remind me.
Unknown speaker: Tab 28.
Nicol J: Tab 28 thank you.
David Price QC: Page 9 of witness statements.
Nicol J: Paragraph number is?
David Price QC .. Got to 56, 57 moves in discl[osure], so called extra marital relationship, proceed from given assumption was having extra marital,
Nicol J: [You’ve] made that point.
David Price QC: Rational, irrational, jealously, CCTV [Closed Circuit Television] footage not probative, sexual relationship .. Told now Elon Musk .. Now told James Franco don’t see where evidential basis is for that? Then paragraph 60 deals with Elon Musk and witness statements of Mr Romero that Mr [David] Sherborne took you to. What’s in witness statements, [Elon] Musk is not a co-star in a film, the taunting, said my client hasn’t responded do what not relevant .. Which brings us to the end of the application.
Miscategorised Speaker: [David] Sherborne ready to reply took through various documents try to follow same pattern … Application was made late should have asked her .. In paragraph 11, Matthew and [**Marrixk (phonetic)**] … When asked the defendant[s] say not obliged, just a mere witness, caught between highly artificial don’t need provide Ms [Amber] Heard’s, she’s not obliged when Miss [Amber] Heard’s representatives are sitting in Court, quite obviously not obliged … has provided with material, [you] know she has Your Lordship [has] seen it,… yet there is no obligation, idea … voluntarily asked, utterly unrealistic, not getting offers apart from one small offer in part (a), if … says go through gateway not good enough whenever Mr [David] Price [QC] was .. Counsel Miss [Kate] Robinson were there last Thursday, … I want everything dealt with on Monday .. Your Lordship made it plain and Miss [Amber] Heard’s representatives .. Miss [Amber] Heard has chosen not to put in a witness statement .. Then Mr [David] Price [QC] tried to rely on the Paddock case just because it’s on the statement
Nicol J: Just b[r]eaches ..
David Sherborne .. Witness statement (a) if … flesh out that is how the case is out. Mr [David] Price [QC] then to the skeleton argument when took to text by reference to the White Book asked Your Lordship to consider what is there what Mr [David] Price [QC] went onto say shouldn’t bring in third parties and demand documents. Miss [Amber] Heard has chosen to come and give evidence, she is not an unwilling party, plaese do bear in mind it was.. my [Johnny] Depp who made these allegations, it was Miss [Amber] Heard who originally … At great time and expense desperate to come here to clear her name.. Breaches, she is going to give evidence next week or the week after in accordance with the witness [**attejejrs (error?)**] and ask Your Lordship to determine her allegations … Arguments [that] infringe rights… Don’t apply … Then points about Ms Afia’s statement set out no requirement to set out the statements of case, I’m … the witness statements are part of the case… So close to trial, just deal with one then very quickly, the actual categories 1(a) Price said we have made an offer, then seek to resile, we can’t put forward an alternative until we hear … Mr [David] Price [QC] phrases like hunt, she gave it to the defendants, she just know[s] where she got it from, she’s produced it itself the original recording in its native form… Make good the points Ms Afia set out this is generally speaking a helpful document, she’s set out … the says in which it assist the Claimant. Bear in mind [the] nature of what was said in the pleading, chose to put [it] in in the most general terms… Defendants have set their stall out in those words terms.. Evidence oft hear conversations.. Disclosed the real nature of the relationship whether or not correct as alleged [Johnny] Depp [was] controlling and abusive already … Portions not audible likely to support what Mr [Johnny] Depp say what he is likely to have said beaches so bad completely inaudible demonstrate far from controlling far from him the one hitting her she is admitting to the physicality satisfy the test under 3(a), no other way provided by Miss [Amber] Heard necessary for fair disposal, otherwise [Amber] Heard portray … Likely to may well assist Mr [Johnny] Depp, Miss [Amber] Heard is going into the witness box … Necessary for the fair disposal in reaction to the first recording …the second…
Nicol J: 1(b) not [an] issue.
David Sherborne: Talking about Toronto, … client chosen not to put in witness statement, says she’s going to send to Mr [Johnny] Depp, that is a sufficient basis [**heavyset (error?)**] they demonstrate the point she is behaving appallingly, she is the one fighting that’s why he says, send me Toronto, no other person has only Miss [Amber] Heard .. when I say give the evidence, 1(e) and 1(f) Your Lordship has seen the Confidential Schedule without asking you to go back to it right at heart of the Defence, Claimant was physically and verbally abusive to Miss [Amber] Heard, that is denied by Mr [Johnny] Depp, in the Confidential Schedule, played about false, accusations of affairs entirely denied, therefore in dispute, if you take Miss [Amber] Heard’s witness statement, first witness statement at tab 20…
Nicol J: Yep.
David Sherborne: Page 263.
David Price QC: Paragraph?
David Sherborne: Starts at paragraph 22, just permit me one minute.
Nicol J: Got paragraph 22.
David Sherborne: One second, just to find my reference. Look at [the] rubric, Johnny [Depp]’s controlling and isolating behaviour .. Describes aspects of Johnny [Depp]’s beahviour during the relationship … Then talks about .. Didn’t like me not doing anything not under his control.. Then in 24, he would create fights before she would go to an audition,. Stop going to jobs .. 25 gets on to the extra marital allegations, .. Much worse kissing and sexual scenes .. Tried [to] catch out act as if … information doing it when I hadn’t .. Then see if carry on, no other way now suggested “he accused me of having affairs with” .. Eddie Redmayne, [** Gilly (phonetic)**]
Nicol J: Mr [David] Sherborne, I want you try to bring your submissions to a conclusion.
David Sherborne: Nonsensical accusations against me, no idea what he was talking about, as part of controlling behaviour accused her of having affairs, turn to two allegations [that] predate marital affairs, see that the two of them intimately engage in the lift consistent with [being] in a relationship, may well support or likely … Doesn’t have to be .. Narrowed our focus to the texts, material [wee] cannot get any other way .. It’s bound to exist we say we should be entitled to it, for fairly as for Mr [Elon] Musk, Your Lord has already got text messages that demonstrate .. They say it’s Mr [James] Franco, it’s Miss [Amber] Heard who said in the press it was M[r] [James] Franco but he hasn’t been anywhere near where we lived which is obviously untrue .. Rocket man texts, evidence of Mr Romero.. Going back to 2015 said to have been physically abusive,
Nicol J: Made the comment about controlling behaviour.
David Sherborne: [I was] doing it generally, [now I’m] doing it specifically.
Nicol J: Move on.
David Sherborne: Necessary, fairly …. Miss [Amber] Heard giving evidence
Nicol J: Good, [is] that your reply? Mr [David] Price [QC] and Mr [David] Sherborne, [I have] reserved [my] decision [on an] application [for] relief against sanction, also rese[rve] my decision in relation [to] this matter, as before as expeditiously as possible.
David Sherborne: Thanks.
Nicol J: Anything else?
Adam Wolanski QC: Our application for cost[s] rather [than]deal with another application.
Nicol J: By force of circumstances reserve[d] to another occasion, anything else?
Adam Wolanski QC: No.
David Sherborne: No.
Nicol J: Thanks, Mr [David] Price [QC] draft judgement these days [is] handed down electronically [and] distribute[d] to electronic databases.
David Price QC: From the gods.
Nicol J: I’m going to terminate the call now.
David Sherborne Thank you My Lord and to Miss [Amy] Baker as well …
The hearing ended at approximately 7:36 pm.
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