By Paul Nathan and Abtin Yeganeh
On 2 November 2020, Mr Justice Nicol handed down his long-awaited judgment in Johnny Depp's highly publicised libel claim against the Sun.
In dismissing Depp's claim, Mr Justice Nicol found that the allegation that Depp had assaulted his ex-wife, actress, Amber Heard was 'substantially true'. Whilst Depp's solicitors have stated he intends on appealing the 'perverse' and 'bewildering' ruling, it will be interesting to see whether this becomes a reality given the volume of live evidence that was before the High Court.
On 1 June 2018, Johnny Depp filed a libel claim against, News Group Newspapers Ltd in respect of an article published by the Sun under the headline: 'Gone Potty: How can JK Rowling be "genuinely happy" casting wife beater Johnny Depp in the new Fantastic Beasts film?'
It had been claimed on behalf of Johnny Depp that the term 'wife beater' was untrue and defamatory and that it would cause serious harm to his reputation.
In order to succeed in his claim, he would have to meet the serious harm test under section 1 of the Defamation Act 2013, which provides:
- Serious harm
(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not 'serious harm' unless it has caused or is likely to cause the body serious financial loss.
Of course, if the Statement were found to be true, then there would be no liability whatever the harm caused to Johnny Depp's reputation because something which is true cannot be defamatory.
Whilst the Sun acknowledged that the term 'wife beater' could cause harm to his reputation and that it, therefore, met the serious harm test, it took a somewhat risky approach and defended the claim relying on Section 2 of the Defamation Act 2013, which provides:
"It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true."
Having relied on the defence of truth, the burden was on the Sun to establish to a civil standard of proof that the allegation that Depp was a 'wife beater' was substantially true. When filing its defence, in order to substantiate the allegation that Depp was a 'wife beater', the Sun set out and relied on 14 separate incidents where Heard alleged she had been assaulted by Depp, as proof.
HIGH COURT DISMISSES DEPP'S LIBEL CLAIM
Following a 16-day trial which took up 5 court rooms in the High Court, Mr Justice Nicol handed down judgment on 2 November 2020 dismissing the claim.
In his 129-page judgment, Nicol J considered the 14 assault incidents alleged to have taken place, in detail, relying on evidence from no fewer than 26 witnesses for the parties along with 13 lever arch bundles of documents. To satisfy its defence of truth, the Sun relied heavily on the evidence of Depp's ex-wife, actress Amber Heard and witnesses who supported her claims. Depp had the support of his ex-wife Vanessa Paradis and ex-girlfriend Winona Ryder, both of whom stated that Depp had been kind and decent to them both and had never verbally or physically assaulted them. The Depp described by Heard was not the man they had shared their lives with.
Whilst Depp had proved the necessary elements to bring his claim in libel, Nicol J, dismissed the claim. Having examined the 14 incidents in detail, Nicol J dismissed the claim on the basis that he found that the 12 of 14 incidents in which Heard claimed Depp had assaulted her had been proven to a civil standard and were thus 'substantially true'. Depp's lawyers have commented that Mr Justice Nichol ignored Depp's evidence and that of Paradis and Ryder, preferring Heard's evidence and that Depp intends to appeal against the decision on this basis.
WHAT NEXT FOR DEPP?
Depp's solicitors ,Schillings, have described the decision as 'perverse' and have 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 makes an application for permission to appeal difficult as it is unlikely that the Court of Appeal will interfere with a ruling based heavily on facts derived from live witness evidence.
Depp had originally set out to preserve his reputation following the article by the Sun. This 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. Depp's ego seems to have taken over and he was determined to clear his name.
Following the highly publicised disclosure in the case and the detailed analysis of his relationship with Amber Heard, the Judgement has immediately caused real and major damage to Depp. The immediate fall out of the judgment is that Depp has been dropped from the 3rd instalment of Fantastic Beasts, due to start filming shortly. Warner Bros, the production studio concerned, have asked Depp to step down from his role (which he appears to have agreed to, most likely because he has a $10,000,000 clause in his contract entitling him to be paid in any event) and have thanked Depp for his work over the years. All indications are they will not have him feature or appear in any film made or distributed under their studio banner in the future. It is quite possible that other studios, producers, directors, and casting agents will follow Warner Bros. This leaves Depp with little option but to seek to appeal, as his career is in jeopardy.
As to JK Rowling, she seems to have escaped further criticism by accepting Warner Bros' actions, but possibly her reputation has suffered some damage based on Mr Justice Nicol's decision (as he has decided the article in the Sun was true)
It is highly likely that the judgment will negatively impact Depp's libel claim in the US which is due to be heard in January 2021. Mr Justice Nicol is a highly respected judge who has determined many Defamation cases. His findings of fact will be difficult to ignore.
Watch this space!!
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.
Disclaimer: The authors' comments are based on the findings of fact made by the judge and other matters reported in the press, but not denied.