Thread by @nickwallis

Court 71 obviously haven’t got their feed up, unless anyone has a link which is working….?

Okay I’ll email the press office.

Okay we are go - it’s live:

Housekeeping discussion completed. Andrew Caldecott QC speaking for Johnny Depp.

He will speak for 90-ish minutes, then the judges (there are two today) may ask NGN to give a response or assist in some way.

AC asking to introduce 2 witness statements.

AC reading the CPR (Civil Procedure Rules) which allows these witness statements to be considered. The additional evidence IS about the alleged deception by Amber Heard about the claimed gifting of her divorce settlement to charity.

NGN argue the appeal application should fail because the legal bar of admissibility is too high. AC saying that the case law NGN is relying on does not apply to this case.

AC quoting from a an Amber Heard statement:

AH “the entire amount of my divorce settlement was donated to charity"

AC it means what it says, we say, that all seven million was donated to charity and it is clear that the judge [Mr Justice Nicol] took it to mean that.
[AC takes the judges to Nicol’s judgment where he states as much]

AC can I just deal with the literal true position - two charites g - Children’s Hospital of LA and UCLA charity set up to stop violence against women. AH publcily said she would donate her $7m settlement equally between the two.

AC the true position re the Children’s Hospital - [refers to a donationn letter from Mr White - JD’s accountant who gave evidence in the last trial]
J asking if this evidence was before the court in the trial
AC it was in the bundle, but it was not referred to in court.

AC - we don’t know if the judge read it or not.
AC this evidence is of the only donation is the ONLY donation that was EVER made to the hospital - a cheque [he doesn’t say how much for]

[the letter goes on to indicate it is the first of a schedule of payments up to the value of $3.5m]
J intervenes to ask about the discussions between Mr White and AH re tax aspects of the payment
AC AH did not speak to Mr White
J didn’t he say he’d had a discussion with AH?

AC my recollection is that he had a discussion with Mr Depp’s attorneys
[Sasha Wass QC for NGN intervenes]
SW Can I help? Could we refer to the agreed timeline?
[takes judge to E White’s evidence in which he says he suggests to AH what she can do with the money]
J so did he...

… discuss it with her or not?
AC it’s a little uncertain whether the discussion was with her attorneys or her. I dont’ want to spend too much time on this
J of course
AC the issue was contentious tho

AC goes to a letter which Ed White [EW] writes to either AH or her representatives asking if she was going to make any more payments
AC we are pretty certain there was no reply

[sorry correction - the letter to AH asking if any more money was going to be forthcoming came from the children’s hospital charity - not EW]

[that letter doesn’t seem to have got a response]
AC we therefore say that the only money donated was $100,000 and not the $3.5m claimed
AC the UCLA got $350K from AH and an additional $100K from EW sent on the same day. There is a letter with an acknowledgment of receipt

AC there is an unsigned pledge from AH, but it doesn’t say what the installment payments may be, just that they will start.
J but there is a letter from ACLU saying thanks for the very generous pledge.
AC yes - it is different from the hospital situation. ACLU received $450K...

AC as against $3.5m
AC the inference from the true position against the reality
J you say there is no evidence from AH on this point, but we have a statement on AH’s behalf that the payments have not been made, but that they will be
AC yes. the final divorce payment was made...

… in Feb 2018. The trial finished on 28 July 2020. On 29 July 2020 AH files a petition to quash the subpoena regarding the American action requiring her to give evidence re her donations. She appealed and lost this and then sought to have them designated confidential so they...

… could not be used in these proceedings. Mr Depp’s reps had to apply to get them so we could see them.
AC sometimes errors are made in witness statements in haste and they can be corrected, but by 29 May she knew subpoenas re her donations were being pursued...

… and that must have focused her mind, and we ask the court to draw an inference that a correction to her witness statement was not pursued because it would be so damaging.

AC the pledge of $7m to the charities was a remarkable act of charity and does considerable credit to her and the subliminal message is “i want him to pay, but I don’t want to keep a dime of his money” it implies revulsion at his activity. The focus of the ACLU contribution...

… in her public statement was to victims of domestic violence.
It’s evidence in the case to which the judge refers to in his judgment. it creates a very potent starting point when considering the kind of person AH appears to be and it points to the likelihood of AH being a...

… victim of domestic violence.
It only came in as an answer to the gold-digging allegation which was not pursued at the trial. Our case in this court is that AH is not a gold-digger, but that this pledge shows her in an exemplary light.

J so you’re asking this to go in as to credit?
[AC starts talking about the georgraphy of the case]
J so it goes to?
AC the likely starting point the judge would have taken as to the likelihood of her being a victim of domestic violence
J does the judge refer to this at all?

AC he says it’s not the actions of a gold-digger - which begs the question as to what she actually is?
J2 - that part of the judgment starts with JD’s theory she was a gold-digger and that he was her insurance policy. Mr Nicol is not dealing with it in terms of credit

AC no, but your lordships will know as trial judges that there is often potent background information that will influence you. But this is not the point - it’s a tilting of the balance from the outset. It’s a false plus to her and a false minus to him.

[AC now going through the arguments as to whether or not this evidence could have been available to JD or EW or JD’s legal at the time of the trial - this is about whether this is significant new evidence, rather than evidence that JD’s team had but didn’t make enough of during..

… last year’s trial]

[the point is that they are not going to be allowed an appeal if they had the information at the time of the trial, but just didn’t notice its importance or follow it up. the appeal only has a chance of going ahead if the judges agree this is new evidence, but there are...

… many other hurdles]

[Neither JD or AH are in court btw. Neither are any journalists. We were going to be facilitated until the court decided the hearing would go out on youtube. The only people in court are 3 barristers for each side, 2 solicitors, 2 judges and a few court staff]

[AC still trying to rebutt the NGN points that the donations issue could have been pursued in time for the trial last year. AC says it could not have been]

AC respondents say AH was not xe’d on the issue. There is a general view she was untrustworthy on this issue, but we had no evidence to contradict her word.
J you could have asked her a perfectly neutral question
AC yes
J she was not given the opportunity to say anything

J you could have asked her, she could have told you the situation as it stands, then you wouldn’t need any evidence.
AC it’s reasonable not to challenge a clear statement that she had donated all the money. I can’t dispute what you say. She could have been asked….

… but we have no idea what she would have said.
J you asked for these documents to be put in the bundle
AC yes there were other reasons for putting those documents in the bundle and there were suspicions about her, but yes, the question was not asked.
But consider the failure...

… to correct during the trial.
AC we do say there is a connection ebtween our examples in our skeleton arguments in our permission to appeal in the way the Judge approached evidence adverse to AH which supports the “real danger” test which we have to satisfy

AC evidence against JD is acted on. evidence against AH is ignored. And we say that this is because he started from a favourable perspective of AH by this donations issue.

[AC moves on to permission to appeal issue]
AC I am v conscious of the natural cautions an appellant has re reviewing a trial verdict. There are really 2 -
1. the judge’s privileged position of having heard the witnesses and seen all teh evidence and

2. the question of resource

AC those principles do not apply if there is a material self-misdirection as to the fact-finding exercise and we say that there is.

J what are you referring to?

AC the judge appears to take the view that there is an apparent superiority to the evidence given in the witness box over the available contemporaneous documents.

[AC goes to case law]

[this is known as “The Authorities” in English law. Judgments and rulings in this country are built on preceding rulings and judgments, ranked by court. The Authorities are previous rulings which help/define the lines on which judges make their rulings]

AC says Nicol’s ruling went “materially adrift”
[lists why he thinks Nicol got it wrong]
[judge was materially influenced by AH’s statement re the money she said she was giving to charity]
AC you have to consider the effect on AH’s credibility if the untruth had been exposed.

AC goes to consensual recording made therapeutically to help try to repair the relationship. It’s crucial to understand AH’s point was she was not guilty of any act of violence and that JD was always the aggressor. Says Nicol referred to this… the judge takes 4 examples...

… from this tape recording and on the last of these “I can’t promise you that I won’t get physical again… I’ll do everything possible to change”
AC JD relied heavily on this. The judge summarises this...

sorry summarises THAT AH’s evidence was correct - she was always the victim and he was the aggressor.
[AC starts reading the judgment in which Nicol clearly prefers AH's evidence in court rather than the tape recording (which appears to admit she could be violent)]

AC makes the point that this recording, made consensually, clear to hear and long enough for context, in which she admits being violent and can’t promise it won’t happen again.
J well she appears to admit to two occasions. 1 - the previous night “I was hitting you but not...

… punching you”
2 - reference to throwing pots and pans and a vase
That’s two occasions not several.
AC I accept your lordships points it is only 2 that she admits to - but that’s not the kind of context where you can say it has only happened twice. But in terms of future...

… conduct we say that is an indication there could be more.
AC it’s obviously true that evidence in court has formal characteristics which contempory documents dont. It does have SOME advantages over other evidence, but he’s quite wrong to downgrade the significance...

… of contemporary documents, as their contemporaneity makes them less likely to be self-serving. Be it two occasions or more it’s a fundamentally important check against AH’s case that she was never an aggressor and always a victim.

AC the judge needs to go through the text and see what it amounts to carefully, and he doesn’t do that at all.

AC says re a recording of the therapy session:

on the face of the conversation it’s candour and spontenaiety, no therapist would encourage a couple to lie to each other, and he says “because you start physical fights” she says “you’re such a baby grow the f up"

J asking re other recordings and transcript from AH xe re the conversatoin
AC yes there are slight problems in that we are limited by the size of what we can give you in a permission to appeal
J sure. Suppose the position were the judge ought to have found on the basis of this...

… of this conversation that there were at least 2 occasions that she started a physical altercation. It doesn’t follow that the judge couldn’t find that the general pattern was that he was mainly the aggressor. You have a couple who have a stormy relationship. He is more...

… likely to be violent, and some times she is. She doesn’t hit him very hard… but it follows he could make a judgment on that basis.
AC he could. but he didn't

[AC starts talking about the confidential allegation]

J your view is that the judge believed every word she said

AC he didn’t do a fact-finding exercise correctly

[we move on]

[we are now discussing incident 13 just before the Coachella concert]
AC this has a completely different background. AH had got a restraining order against JD. There was a meeting in a hotel room which she recorded without JD’s knowledge.

[think he means after Coachella]
[anyway it is during the recording that JD says AH came at her with a haymaker and was punching on her. AC notes that AH does not try to deny this, because she knows she is recording the conversation and he would put the point again. AC goes to...

Nicol’s point where he dismisses the “haymaker” recording]
[AC is now going to go to the confidential schedule so I am going to be very careful. They haven’t cut the feed yet…]

[you’ll have to forgive me for not reporting - the feed cut in at the beginning of the hearing as the judge was saying something about the application made to keep confidentiality around this point. I didn’t hear all of what the judge said. I don’t want to get in trouble.]

[AC is not going into the substance of the complaint. Just the way it was dealt with by Nicol.]
AC lastly re treament of incident 2...

AC… this was presented in AH's first witness statement as being a starkly new incident. It was “Really out of the blue - i din’t have much familiarity with this kind of crazy behaviour at the time”
AC vivid quality to that evidence - nothing wrong with that. The court will know

[something about needing to be particularised re truth]
[AC points out that this one vivid occasion changed v late in the day just before the trial to several occasions and JD’s legal team complained about this.]
AC now what the judge does is simply accept...

… AH’s new evidence and rejects David Sherbourne’s argument that she changed the date because she’d been caught out in a lie.
AC Nicol does not consider AT ALL the original descrption of how vivid that one single (incident 2) assault was. And simply understands why she was...

… confused.
AC Nicol accepted AH’s evidence two glibly and was not examined properly
J and you give other examples
AC we know you cannot decide if these allegations are true or false. The only relief we seek is. retrial. We say they should be reexamined in a proper...

… judicial inquiry and that is what we are asking for.
[court has risen, suspect Sasha Wass QC for NGN and Adam Wolanski for NGN will be responding to the points raised by AC]

Okay whilst we’re on a break, let’s have a read of some of the documents both parties have submitted to the court today.

I’ve already published the skeleton arguments of both sides here:

nickwallis.com/courtofappeal

The Respondents’ contention that Ms Heard’s original evidence is and was ‘not false’ is very surprising. The ordinary meaning of her written statement was plain...

… That was clearly how the Judge understood it, when he accepted “Ms Heard’s evidence that she had given that sum [i.e. $7m] away to charity”.

The Respondents’ closing submissions would have been equally so understood by the Court. The instalments argument might be material if Ms Heard had pledged her entire settlement and had honoured that pledge. In real terms, however, she did...

...neither. A pledge is not the same as giving money. The fact that the divorce settlement was made in instalments, which were completed by 1st February 2018, does not explain why Ms Heard would only ‘pledge’ to the ACLU to give money over 10 years or have any...

… impact on her failure to honour that pledge. The unanswered letter at JR2 page 16 is of particular importance.

As to honesty, in the context of Court evidence, a witness can ordinarily be taken to intend to convey the plain meaning of his or her testimony. There is no responsive evidence from...

… Ms Heard herself or through Mr Smele on her behalf. Her strenuous opposition to disclosure in the United States is fully detailed in the evidence and speaks for itself. The explanation offered by her US Attorney does not reflect the reality which the documents…

… disclose, nor the chronology. Further, Ms Heard did not correct her evidence about having donated her entire divorce settlement to charity despite the fact that she must have known that the subpoenas had been issued in the US proceedings and despite, around the same...

time, making other corrections to her evidence in these proceedings.

[so obviously that’s about the charitable donations or lack of them made by AH with the divorce settlement as discussed in court earlier]

[there’s more… this is selective btw]
The evidence presented a wholly exceptional act of philanthropy, which would have deeply impressed any reasonable person. Her public statements expressly stated that the ACLU donation had victims of domestic violence specifically in mind ...

… The subliminal message of the charity claim was in any event clear: Ms Heard would not wish to keep any of the Applicant’s money, because he had subjected her to serious violence….

… The evidence presented, and was obviously intended to present, her in the strongest terms as both virtuous and a victim.

A principal element in the Applicant’s wider complaints about the Judgment relates to the Judge’s failure to engage with evidence to Ms Heard’s discredit, to his uneven treatment of the contemporary documents when relevant to matters directly in issue and to his uneven...

… treatment of un-pleaded allegations as between the Applicant and Ms Heard. There is a striking lack of criticism of Ms Heard throughout the judgment.

… the Applicant submits that had the truth about the charity claim emerged at the trial, it would have materially affected the Judge’s consideration of Ms Heard’s evidence as a whole and that the criterion addressed in the opening paragraph of these...

… submissions is satisfied. On the Applicant’s case the fresh evidence exposes a calculated and manipulative lie, designed to achieve a potent favourable impression from the outset.