By Paul Nathan and Abtin Yeganeh
Last year we commented on the decision of Mr Justice Nicol in Depp -v- Newspapers Group Ltd  EWHC 2911 (QB) in which his widely reported 'wife beater' libel claim was dismissed.
Depp's solicitors, Schillings, had described the decision as'perverse' and had stated his intention to apply for permission to appeal.
However, and unusually for a libel claim, there was very little in the judgment by way of complex law. In the 129-page ruling, only 5 of the 585 paragraphs analysed the law in relation to the defence of truth. The decision to dismiss the claim, therefore, rested heavily on the facts. This made any application for permission to appeal an uphill battle as the Court of Appeal will rarely interfere with a ruling based heavily on facts derived from live evidence. Notwithstanding this, true to his word Depp sought to appeal the decision by way of an application for permission to appeal.
The Appeal Process
Before a party can appeal a decision, they will need to apply for permission to appeal. The relevant test as to whether Permission to Appeal should be granted is set out in CPR 52.6, which provides:
"(1)... permission to appeal may be given only where -
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.
With Nicol J, having originally refused permission to appeal, Depp sought permission from the Court of Appeal.
As part of the application for permission to appeal, Depp's solicitors and counsel relied on fresh evidence which they claimed contradicted Amber Heard's claim and evidence that she had given her entire divorce settlement to charity as she had "agreed" to do (something which had been widely reported in the press as her intention).
The crux of the application for permission to appeal was that since it transpired that Amber Heard had not in fact given all of her divorce settlement to charity, illustrated she was dishonest, and therefore the evidence that she gave in the original trial was unreliable and should not have been believed. In such circumstances, Newspaper Group Limited would not have successfully defended Mr Depp's claim against them. See further below
The point of Amber Heard giving her whole divorce settlement to charity was considered material in Nicol J's decision and his assessment of the case. The relevant extracts of Nicol J's judgment are as follows:
"[10.] While Depp's many high powered friends accused Heard of simply seeking a pay-out, she proved them wrong by committing to donate ALL of the £5 million she received to charity.
[577.] A recurring theme in Mr Depp's evidence was that Ms Heard had constructed a hoax and that she had done this as an 'insurance policy' - presumably in the event that the marriage broke down. Mr Sherborne commented in his closing submissions that Ms Heard had said that she recorded some of her conversations with Mr Depp to show him what he was capable of doing when the Monster prevailed and yet many of these were never played to or shown to Mr Depp. She was, according to this scenario, nothing more than a gold-digger. I have in the course of this judgment given reasons why I do not accept this characterisation of Ms Heard. Looking at the evidence as a whole, I come to the same conclusion. There is a multiplicity of emails, texts and messages and diary entries in the papers before me. I have quoted some. Some, but by no means all, are from Ms Heard. I recognise, of course, that previous statements by her are not independent evidence of the truth of the allegations, yet they are not, on the other hand, inadmissible or irrelevant for that reason. There are also as I have shown sometimes statements from third parties which do corroborate her. I had evidence as to what Ms Heard had received as a result of the divorce settlement. I have explained that there was no expert evidence to compare those figures with what she would otherwise have been entitled to under Californian divorce law. The principal element of that settlement was payment to her by Mr Depp of US $ 7 million. Ms Heard's evidence that she had given that sum away to charity was not challenged on behalf of Mr Depp and the joint statement issued by Mr Depp and Ms Heard as part of the Deal Point Memorandum acknowledged that this was her intention (see file 9/139/L78). I recognise that there were other elements to the divorce settlement as well, but her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger."
At the hearing for permission to appeal, Depp's counsel, Mr Andrew Caldecott QC submitted that Ms Heard's claims that she had donated the divorce settlement to charity were a "calculated and manipulative lie". It was submitted that contrary to Heard's claim that she would donate the entire sum to charity only circa. $1,050,000 of the $7,000,000 sum had actually been donated. Mr Adam Wolanski QC on behalf of Newspapers Group Ltd claimed that the fresh evidence 'would not have had any impact' on the decision.
Having considered submissions from both sides, Lord Justice Underhill has refused the request to admit further evidence whilst refusing permission to appeal on the basis that the appeal has 'no real prospect of success and that there is no other compelling reason for it to be heard.'
Given the test that would have to be met, the decision hardly comes as a surprise.
With the Court of Appeal having determined that the application for permission to appeal has 'no real prospect of success' the latest order signals the end of the road in Depp's libel claim against the Newspapers Group Ltd. CPR 52.30(1) provides that the Court of Appeal or the High Court will not re-open a final determination of any appeal (which includes refusal of permission to appeal) unless -
- It is necessary to do so in order to avoid real injustice.
- The circumstances are exceptional and make it appropriate to re-open the appeal; and
- There is no alternative effective remedy.
The determination serves as a reminder that the Court of Appeal is unlikely to intervene in a decision that rested heavily on live evidence; nor will it entertain appeals where disputes on a determination of the facts are disguised as an error in the law applied.
Further presumably as indicated in the Divorce Settlement (which we have not seen) and referred to by Nichols J, it had been Amber Heard's 'intention' to give all of her settlement to charity. This was her response to the allegation by Depp and many of his friends that Amber Heard was just a 'gold digger.' Had it been more than an intention and the Settlement Agreement had provided that she was obliged to give the whole settlement to charity, then Depp could presumably sue under the Settlement Agreement. He does not appear to have done so to date.
Of course, it must be remembered that this litigation was not a claim by Depp against Amber Heard, but against the owner of the Sun newspaper. Amber Heard was not the Author or Publisher of the statement that Depp was a 'wife beater', although claims of physical and mental abuse had been made in the divorce proceedings.
Whilst Depp had originally set out to preserve his reputation following the article by the Sun the claim may have had the adverse effect given that details of his relationship with Heard were set out within Nicol J's judgment. As mentioned previously the decision to bring a claim was a risky step given that most people did not believe the description of him as a 'wife beater' and it had not affected his continued hiring for major film roles. Indeed, it was JK Rowling casting him in 'Fantastic Beasts and Where To Find Them' (2016) which led to criticism of her in the Sun, for casting Depp, a 'wife beater.' So, in reality, the article was about JK Rowling, not Depp. Unfortunately, the claim may have an adverse effect following the very public disclosure of his relationship with Heard.
It will be interesting to see what impact (if any) the decision has on Depp's US libel claim against Heard.
The authors of this article are Paul Nathan (Partner) and Abtin Yeganeh (Associate) who are part of the commercial dispute resolution team at Fletcher Day. Paul and Abtin have extensive experience in bringing and defending media, data protection and defamation claims.