Depp v News Group Newspapers Limited and Dan Wootton

Background

The claim was brought in relation to an article published online by the Sun on 27 April 2018 with the headline ‘ GONE POTTY: How can J K Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new fantastic beasts film?’. On 28 April 2018 the headline of the online article was changed to ‘ GONE POTTY How can J K Rowling be ‘genuinely happy’ casting Johnny Depp in the new Fantastic Beasts film after assault claim?’ This headline was used in the hard copy published on the same day.

Meaning of the articles

Nicol J outlined the meanings which were agreed and those which were in dispute between the parties.

The following meanings were agreed as Chase level 1 meanings (imputing guilt of the wrongdoing) as opposed to Chase level 2 (reasonable ground to suspect) or Chase level 3 (grounds to investigate) meanings.

i) The Claimant had committed physical violence against Ms Heard

ii) This had caused her to suffer significant injury; and

iii) On occasion it caused Ms Heard to fear for her life.

The Defendants made several submissions regarding the remaining differences in meaning between the parties:

i) The Claimant referred to ‘overwhelming evidence’ in their meanings but the judge found this to be immaterial as, if the Defendants could prove the ‘sting’ of the article (that Mr Depp had been violent towards Ms Heard), then the amount of evidence would not be relevant.

ii) The Claimant suggested the article inferred Mr Depp had paid Ms Heard £5 million in damages but the judge found that this reference was most likely to have been to £5 million paid to Ms Heard as part of a divorce settlement .

iii) The Claimant suggested the article referred to a continued restraint order but the judge found no such reference.

iv) The Claimant also suggested a meaning surrounding Mr Depp being cast in the Fantastic Beasts film. The Judge held that this was a meaning in relation to J K Rowling and not to the Claimant.

Claim

A claimant in a libel claim must prove that the defamatory material has been published with some permanency and, under the Defamation Act 2013 s1 the claimant must prove that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

Depp claimed that the articles caused ‘serious harm to his personal and professional reputation’ asking the court to draw inference from:

i) The seriousness of the allegations;

ii) The huge extent of the publication;

iii) The effect of accusations of violence against women in the context of the widely known #MeToo/Time’s Up movements;

iv) The inclusion of quotes or purported quotes from women described as victims of Harvey Weinstein (the subject of high profile and serious criminal allegations);

v) The very likely intended effect of the articles was to finish the Claimant’s career.

Counsel for the Defendant admitted that the articles would cause serious harm.

In support of his claim for damages, the Claimant pleaded that:

i) The restraining order referred to in the articles was only a temporary restraining order (a ‘TRO’) and Ms Heard’s application for Restraining Orders had been dismissed with prejudice on 16th August 2016, as the Defendants knew.

ii) The articles failed to include any denials by the Claimant of Ms Heard’s allegations, although the Defendants were aware of them.

iii) The Defendants had previously reported that the police had attended the home of the Claimant and Ms Heard on 21st May [2016] but had concluded that no crime had been committed. That matter had been omitted from the articles which instead gave a ‘one-sided and unfair account’ of the evidence.

iv) The articles had misquoted and/or taken out of context remarks by Katherine Kendall, a #Me Too/Time’s Up victim, and failed to correct the website article when Ms Kendall objected to being misquoted.

Defence

The Defendants relied on the defence of Truth under s2(1) of the Defamation Act 2013 which states it is a defence to an action for defamation for a Defendant to show that the imputation conveyed by the statement complained of is substantially true. The Defendant relied on a Truth defence in the meaning: ‘ the Claimant beat his wife Amber Heard causing her to suffer significant injury and on occasion leading her to fear for her life’.

Trial

The issues were solely:

1 The meaning of the articles complained of; and

2 Whether the imputation conveyed by the articles was substantially true.

The judge heard evidence in person from a multitude of witnesses listed at p87 of the judgment. The Claimant also relied on hearsay evidence and witness statements from various sources including ex partners.

The Claimant denied the assault allegations and claimed that he was, in fact, the victim of Ms Heard. Nicol J considered the facts presented to him by the Claimant and the Defendant with some details of the violence alleged by Ms Heard being held in a confidential schedule.

Nicol J considered the details of 14 ‘incidents’ that took place between the Claimant and Ms Heard.

The Defendant detailed instances where Ms Heard alleged the Claimant attacked her whilst under the influence of alcohol and other illegal substances including an incident on a plane in May 2014 where she claims the Claimant threw objects at her, slapped and kicked her before passing out in the bathroom. On another incident in March 2015 it was alleged that, whilst under the influence of MDMA, the Claimant was physically abusive towards Ms Heard including slapping, pushing and choking her. During this incident the Claimant injured his finger (the tip had been cut off) and he proceeded to write on the walls using a mixture of oil paint and his own blood.

The Claimant denied the allegations and stated that it was Ms Heard who was verbally and physically abusive towards him on these occasions. He claimed that he did not pass out in the bathroom on the plane in May 2014 but spent the remainder of the journey in there to avoid Ms Heard. He also claimed that it was Ms Heard that broke a bottle over his finger during the incident in March 2015 though he did concede he wrote over the walls in blood and paint whilst in shock as a result of the injury.

The judge also considered evidence from the Claimant in an attempt to diminish the credibility of Ms Heard’s evidence (p109-186). He found that there was either little evidence that the Claimant’s allegations were true and, even if they were, that they were immaterial to the credibility of her evidence given in these proceedings.

Nicol J went on to consider the Claimant’s and Ms Heard’s history of violence. Neither have had convictions in the UK or US but both have had a history of arrests for violent behaviour in the past. The Claimant was questioned over at least 6 violent incidents at trial and Ms Heard over an incident with her ex-partner. The judge found both the Claimant and Ms Heard’s records of previous violence were irrelevant. He followed the guidance given to a jury in criminal trials where a defendant has no relevant convictions or cautions it does not admit criminal conduct.

Conclusion and Summary

Nicol J highlighted the importance of considering the evidence as a whole and pointed out that he had done so.

The judge held that most of the alleged assaults on Ms Heard by the Claimant had been proven to a civil standard of proof . The judge quoted Lord Nichols in re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586 that for the civil standard a court is satisfied an event occurred if the court considers, on the evidence, the occurrence of the event was more likely than not. He also noted that as stated by Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468 at [62] and approved by Lord Carswell in Re D [2008] 1 WLR 1499 at [27]: ‘Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.’

Overall, he held that although the Claimant had established the necessary elements of his cause of action, the Defendants had shown that the words of the article were substantially true in the meanings held. Parliament has said that the defence of truth is a complete defence and therefore it was not necessary for the court to consider the fairness of the article or the Defendant’s ‘malice’.

The claim was dismissed, and Mr Depp has been ordered to pay £628,000.00 in costs.

Appeal denied

The judge has refused to grant Mr Depp permission to appeal the decision but has given him until 7 December 2020 to appeal directly to the Court of Appeal in this respect.