Thread by @nickwallis

Hello. Another world exclusive for you follows. I have the NGN and Wootton response to Johnny Depp’s application for permission to appeal the UK High Court ruling against him.

The ruling was handed down by Mr Justice Nicol on 2 November last year. He found that the Sun Newspaper’s allegation that Mr Depp was a wife-beater was “substantially true” - therefore Mr Depp’s libel claim...

… against the Sun newspaper’s parent company and the journalist who wrote the piece had failed.

Just before Christmas Mr Depp applied to the UK Court of Appeal for permission to appeal Mr Justice Nicol’s judgment. You can read those documents here: nickwallis.com/courtofappeal

I’ll tweet NGN and Wootton’s response in full on this thread. It is much shorter than Mr Depp’s Grounds and Skeleton (as responses of this nature are required to be). Here goes:

IN THE COURT OF APPEAL (CIVIL DIVISION) Appeal Ref: A2/2020/2034 ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Hon. Mr Justice Nicol [2020] EWHC 2911 (QB) (2 November 2020)

B E T W E E N:-
JOHN CHRISTOPHER DEPP II - Claimant/ Appellant
-and-
(1) NEWS GROUP NEWSPAPERS LIMITED (2) DAN WOOTTON
Defendants/ Respondents

DEFENDANTS’/RESPONDENTS’ RESPONSE TO APPLICATION FOR PERMISSION TO APPEAL

The Respondents ask the court to reject this application for PTA, which is solely against the judge’s findings of fact.

Nicol J was steeped in the case: he determined several interlocutory applications then heard a 31⁄2 week trial with over 30 witnesses (26 giving oral evidence, the protagonists in person; cross examined by highly experienced Queens Counsel)…

… and 13 lever arch files of documents, including photographs and many contemporaneous messages to and from Mr Depp. The result was a 585-paragraph judgment over 129 pages.

The Court of Appeal will only rarely review findings of fact, particularly when based on oral
testimony. As Lord Reid stated in McGraddie v McGraddie [2013] 1 WLR 2477 at [3] “The rationale for deference to the original finder of fact…

… is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise…

…. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.”

Mr Depp does not contend that either the trial, or any of the interlocutory applications, were conducted unfairly.

This very experienced judge’s task was to assess whether, on the balance of probabilities, the Respondents had proved their articles were substantially true. He concluded after conducting a painstaking analysis of the evidence that the Respondents…

… had proved 12 of the 14 pleaded assaults perpetrated by Mr Depp on Ms Heard, and the plea of substantial truth was therefore…

… made out. It is apparent from the detailed judgment that there is no basis to conclude that the judge failed to examine the evidence or provide reasons for his findings.

Mr Depp has selected items of evidence which he contends shows the judge carried out his task incorrectly. The Respondents are unable within the confines of this document to answer these points: this would require…

… a similarly detailed and lengthy exposition of the evidence, in many more than the permitted 3 pages. Many of the examples (including in the accompanying Schedule) are simply wrong – e.g. the claim that in taped conversations “Ms Heard…

… never referred to violence akin to that which she recounted in her oral evidence, save for reference to one occasion when the Appellant accidentally knocked Ms Heard’s head she accused him of head butting her.”

There are in fact many examples of Ms Heard accusing Mr Depp of violence (e.g. “everyone around me saw all the bruises and the broken blood vessel under my eye, the bruises on my head, the missing chunks of hair, the split lip, the black eye…

… the swollen nose all that shit because you’re stronger...”, which was in the Trial Bundle but is not in the Supplementary PTA Bundle); and Mr Depp admitted “I head-butted you in the fuckin’ forehead” in one such recording – see para. 429 of the judgment.

[you can read the judgment in full here: bailii.org/ew/cases/EWHC/…]

Further, as Lord Reid explained in McGraddie (supra) at [3] “the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one…

… requiring them to persuade three more judges at the appellate level is requiring too much.”

As to the 7 grounds of appeal:

Ground One: the judge’s findings were bare assertions rather than reasoned decisions.

This is unarguable. The judgment was long and thorough, with each conclusion of fact
supported by a detailed analysis of the relevant oral and documentary evidence.

Ground Two: the judge failed to test Ms Heard’s oral evidence against contemporaneous documentary or witness evidence.


This is obviously wrong.

Ground Three: the judge failed to examine or properly assess the credibility of Ms Heard or the other witnesses called by the Respondents.


This too is plainly wrong. The judge explained...

… his assessment of the witnesses’ (especially Ms Heard’s) credibility in considerable detail.

Ground Four: the judge failed to address his mind to the impact of finding that one of the assaults alleged by Ms Heard in the confidential schedule did not occur.

This is misconceived. The fact that the judge...

… did not find that the Respondents had satisfied him, on the balance of probabilities, that one incident had occurred as pleaded did not mean that he was compelled to reject the entirety of the Respondents’ case.

Ground Five: it was incumbent on the judge to closely examine and provide a proper assessment of the principal grounds on which Ms Heard’s credibility was challenged, or at least address them, but he did neither.

This is the same as Grounds Two and Three.

Ground Six: the judge made no findings that the Appellant or other witnesses were dishonest, as would be inevitable given his findings of fact.


An explicit finding of dishonesty on the part of a witness was not ‘inevitable’ in order for the judge...

… to reject that witness’s testimony and to prefer the account of other witnesses. This is especially so in the case of Mr Depp, who admitted that he suffered from memory lapses and ‘blackouts’ following sustained drug and alcohol abuse.

Ground Seven: the judge erred in applying s.4(1) of the Civil Evidence Act 1995 to the evidence of a LAPD officer.

Section 4(1) requires the court to have regard...

... to “any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the [hearsay] evidence”. The judge did this, and fully explained the basis on which he concluded that the officer’s evidence was not reliable.

—————-

Mr Depp’s PR offensive and the timing of this appeal:

The judge referred at para. 580 to Mr Depp’s determination to “stop at nothing” to subject
Ms Heard to “total global humiliation”. Mr Depp’s US libel trial against Ms Heard over the same allegations is due to start before a jury in Virginia on 17 May 2021…

Immediately after the verdict in this case Mr Depp instructed his UK solicitors publicly to attack Nicol J as having reached conclusions which are “perverse”, “bewildering”, “troubling” and “ridiculous” and to…

… state “we hope that in contrast to this case, the ongoing libel proceedings in America are equitable”. [Press release from Schillings, 2 November 2020]

This court can infer that Mr Depp brings this wholly unmeritorious application for PTA [permission to appeal] at least in part to promote his position in the US by…

…. continuing publicly to denigrate the supposedly “inequitable” English legal process, at least until after the US trial has concluded.

ADAM WOLANSKI QC

ENDS

I will put up the full document as just tweeted on this page of my website: nickwallis.com/courtofappeal as soon as I can.

It currently already holds Mr Depp’s two appeal application documents - the Grounds and (much longer) Skeleton argument.

My work on this story is crowdfunded, so if you can afford to buy me a coffee or a pint (a coffee would be best, I’m doing dry January😜), the secure link to the tip jar is here: store29806256.company.site

In terms of what happens next, a single Court of Appeal judge will decide whether there needs to be an oral hearing before making a decision on whether or not to allow the appeal application. If not, a decision will be made on the written submissions alone.

Oral hearings are relatively rare, but then, there is worldwide interest in this case, so we’ll see. This means the next thing that you will hear will either be a decision on the application or that there will be an oral hearing. If it is a decision, and it goes against…

… Johnny Depp, that is the end of the road for him in this jurisdiction (ie the courts of England and Wales).

I’ll obviously keep you updated.

That’s all from me for now. Thanks for all your comments - I do appreciate them. As before, please don’t ask me who will win or which party has the best chance. Plenty of other better qualified people will weigh in on that point, I am sure.

Enjoy your day/evening/morning!

Nick.