In November 2020, the High Court delivered its highly awaited judgment in the case of Depp v News Group Newspapers and anor  EWHC 2911 (QB). This was a libel claim based on an article published online by The Sun newspaper alleging that Mr Depp had beaten his former wife, Amber Heard. After a three-week trial in the High Court, Mr Justice Nicol dismissed Mr Depp’s claim and found the allegation made by the Defendants was substantially true. We wrote a comment on the decision at the time.
In a statement published on his social media following the handing down of the judgment, Mr Depp described Mr Justice Nicol’s judgment as ‘surreal’ and confirmed that he planned to appeal. An application for permission to appeal was made promptly at the end of the trial but was refused by the trial judge, who also ordered that Mr Depp make an initial payment to News Group Newspapers of £630,000 towards its costs in defending his claim. Mr Depp then had until 7 December 2020 to apply directly to the Court of Appeal to seek permission to appeal the judgment. An application was subsequently filed at the Court of Appeal, where Mr Depp advanced seven grounds to support his claim that he had a reasonable prospect of success at an appeal or alternatively, that there were other compelling reasons for an appeal to be heard.
As part of his application, Mr Depp argued that other compelling reasons were premised on the fact Mr Justice Nicol’s judgment was a ‘very public judgment’ that made ‘devastating findings’ of extremely serious criminal offences having been committed and that this had wide ranging implications for the public, particularly victims, or those wrongly accused, of alleged domestic abuse. Mr Depp was required to do this because the losing party does not enjoy an automatic right to appeal a decision. An appeal can only take place if the losing party can show that the appeal would have a real prospect of success or that there is some other compelling reason for it to be heard.
In addition to seeking permission to appeal, Mr Depp also sought permission to adduce further evidence showing that Ms Heard has not yet given away most of the $7 million, received in her divorce settlement from Mr Depp, which she had said that she was donating to charity.
The Court of Appeal listed Mr Depp’s application to be heard on 18 March 2021 before Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division)) and Lord Justice Dingemans.
In a judgment ( EWCA Civ 423) handed down on 25 March 2021, the Court of Appeal refused Mr Depp’s application for permission to appeal. The judgment addressed the application for permission to appeal without reference to the further evidence, which is addressed separately .
The application for permission to appeal
In its judgment, the Court began by emphasising that Mr Depp faced a significant difficulty because the Court of Appeal does not hear evidence again . An appeal against a decision based on the judge’s findings about disputed questions of fact is not easy to overturn on appeal. This, the Court said, is a matter for the trial judge who has the advantage of watching the witnesses give their evidence. Here the Court placed reliance on Leveson LJ’s observations in FAGE UK Ltd v Chobani UK Ltd  EWCA CIV 5 at .
The Court then went on to hold that none of the criticisms of Mr Justice Nicol’s reasoning or concluding remarks advanced by Mr Depp had a real prospect of success  to . Having heard the three complaints advanced in the hearing, which were a selection of the examples given in the skeleton argument, the Court held in the circumstances it would be disproportionate to go through the remainder of the complaints. The Court in its judgment does, at  to , provide brief responses to each of the seven grounds advanced by Mr Depp.
The Court also noted that the point about the high profile nature of the trial and its ‘wider repercussions’ for alleged victims of domestic abuse or those accused of alleged domestic abuse, while submitted in the Grounds of Appeal and the skeleton argument, was not developed during the trial. The Court held at  that the reasons advanced, separately or together, could not justify the exceptional course of allowing the appeal to proceeding, even if it had no real prospect of success.
The further evidence application
As set out above Mr Depp sought to rely on further evidence showing that Ms Heard has not yet given away most of the $7 million, received in her divorce settlement from Mr Depp, which she had said that she was donating to charity. The further evidence comprised of a witness statement from his solicitor, exhibiting various documents obtained in Mr Depp’s libel proceedings against Ms Heard in the United States. Mr Depp commenced these proceedings in March 2019, during which, various attempts have been made by his US legal team to obtain evidence about what payments Ms Heard had made.
The legal test for this question (known as the Ladd v Marshall principles) is that further evidence should only be admitted if:
- it could not have been obtained with reasonable diligence for use at the trial;
- it would probably have had an important influence on the result of the case; and
- if it is credible.
The Court considered the matter, taking limb (b) first.
Mr Depp’s application relied on a claim that Ms Heard had given a misleading impression about her charitable donations to the trial judge and this was bound (or was at least very likely) to have influenced the Judge’s assessment of her overall credibility . The Court of Appeal in its judgment made no finding about whether Ms Heard’s statements about her donations were misleading and found that there was no reason to believe that the Judge’s decision was influenced by what she had said about the donations ( to ).
Having failed limb (b) of the test, the Court concluded that it did not need to decide whether Mr Depp could satisfy limb (a), even more so given Ms Heard was never asked anything about her donation to charity during cross-examination in the trial ().
The judgment concludes at :
As we have said, it is not easy to persuade this Court to overturn the findings of a trial judge on purely factual questions. We do not believe that there is a real prospect of it being prepared to do so in this case. The hearing before Nicol J was full and fair, and he gave thorough reasons for his conclusions which have not been shown even arguably to be vitiated by any error of approach or mistake of law.
Mr Depp’s chances of obtaining permission to appeal were always likely to face a significant challenge. Nevertheless, the Court of Appeal’s judgment provides a forensic dissection of his application, reflecting Mr Justice Nicol’s analysis of the allegations in the trial. The Court of Appeal’s decision now concludes Mr Depp’s case in England and Wales, with the original trial judgment serving as a decision likely to give newspaper editors more confidence in publishing material that makes serious allegations of domestic abuse against individuals (although caution should always be advised as the success of a s.2 truth defence will always turn on the facts of each case and the evidence available to the defendants).
Mr Depp’s solicitors have said the proceedings in the US libel case will continue, where Mr Depp is suing Ms Heard personally over a 2018 Washington Post opinion piece in which she claimed to be a victim of domestic abuse, but did not mention the actor by name.
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