April 12, 2021
In November 2020, Mr Justice Nicol handed down a judgment dismissing a claim for libel brought by the actor Johnny Depp against News Group Newspapers Ltd and one of its journalists. The claim arose out of an article in The Sun which accused Mr Depp of being a wife-beater. NGN’s defence was that the allegation was true because Mr Depp had on numerous occasions physically assaulted his then wife, Amber Heard: fourteen separate incidents were pleaded, covering a three-year period between early 2013 and May 2016. Nicol J found that Mr Depp had assaulted Ms Heard on all but two of those occasions. Ms Heard was the principal witness for NGN, and the judge largely accepted her evidence. Accordingly, NGN’s defence under s 2(1) of the Defamation Act 2013 succeeded.
Mr Depp applied to the Court of Appeal for permission to appeal against Nicol J’s decision and for permission to rely in support of the appeal on evidence that had not been before the judge, but which he said cast serious doubt on Ms Heard’s credibility.
Lord Justice Underhill, giving the judgment, noted that Nicol J had examined a number of points relied on by Mr Depp, apart from the fourteen incidents, as reflecting badly on Ms Heard’s credibility and had concluded that none of them carried substantial weight. Although in one sense Nicol J’s conclusion involved him accepting that Ms Heard was a credible witness, Underhill LJ said that it was important to appreciate that he had not made an overall assessment of her credibility, which he had then fed into his conclusions on the individual incidents; he had found that Mr Depp’s various submissions challenging her general credibility were not helpful. Rather, in relation to each of the fourteen incidents he had relied on the evidence relating specifically to that incident.
Mr Depp argued that there were fundamental flaws in Nicol J’s approach to the fact-finding exercise and raised a number of grounds. He focused on three complaints, which he said all had a common element, namely that Ms Heard’s evidence had been accepted by Nicol J “too glibly without proper forensic examination of the inherent probabilities and the contemporary documents”. On an analysis of Nicol J’s judgment, Underhill LJ found that this was not a fair criticism. Accordingly, all grounds of appeal were rejected on the facts.
As for the application for permission to adduce further evidence, Mr Depp said that Ms Heard had married him for financial gain and that he had further evidence that questioned Ms Heard’s witness evidence that she had donated the entire amount of her divorce settlement to charity.
There was no dispute that, in accordance with the well-established “Ladd v Marshall principles”, further evidence should only be admitted for the purpose of an appeal: (i) if it could not have been obtained with reasonable diligence for use at the trial; (ii) if it would probably have had an important influence on the result of the case; and (iii) if it is credible.
Underhill LJ noted that, whether Ms Heard had given a misleading impression about her charitable donations, was in itself nothing to do with the case that Nicol J had had to decide; Mr Depp had himself told the court that his belief that Ms Heard had married him for financial gain was not part of his case. Further, he had not cross-examined Ms Heard on the issue. It was therefore only relevant to the extent that it shed light on the question of whether Mr Depp had committed the alleged assaults. As such, it was irrelevant.
Mr Depp argued that the apparent fact that Ms Heard had donated the entirety of her divorce settlement to charity was at least very likely to have influenced Nicol J’s assessment of her overall credibility. Underhill LJ rejected this, finding that, given that Nicol J had based his conclusions on each of the incidents of assault on an extremely detailed review of the evidence specific to each incident, there was little need for him to give weight to any general assessment of Ms Heard’s credibility, which is notoriously a more difficult and uncertain basis for deciding on disputed facts. It was pure speculation, and very unlikely, that he gave any weight to general considerations about her character of the kind suggested by Mr Depp.
Further, Underhill LJ found that Nicol J would not have reached a different conclusion if it had been established that Ms Heard had given a misleading impression about how much of her divorce settlement had in fact been paid to her nominated charities. Again, that was essentially because his focus had been squarely on the evidence relating to the alleged assaults themselves.
Accordingly, the application was dismissed on the basis of limb (ii) of Ladd v Marshall. As for limb (i), Underhill LJ said that the real difficulty for Mr Depp was that he had not cross-examined Ms Heard about her donation to charity.
Underhill LJ concluded that it was not easy to persuade the Court of Appeal to overturn the findings of a trial judge on purely factual questions and there was no real prospect of it being prepared to do so in this case. The hearing before Nicol J was full and fair, and he had given thorough reasons for his conclusions, which had not been shown even arguably to be vitiated by any error of approach or mistake of law. (John Christopher Depp II v News Group Newspapers Ltd  EWCA Civ 423 (25 March 2021) — to read the judgment in full, click here).