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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Depp II v News Group Newspapers Ltd & Anor [2021] EWCA Civ 423 (25 March 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/423.html Cite as: [2021] EWCA Civ 423 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Nicol J
[2020] EWHC 2911 (QB)
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
and
LORD JUSTICE DINGEMANS
____________________
JOHN CHRISTOPHER DEPP II |
Appellant |
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- and - |
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NEWS GROUP NEWSPAPERS LTD DAN WOOTTON |
Respondents |
____________________
Sasha Wass QC, Adam Wolanski QC and Clara Hamer (instructed by Simons Muirhead & Burton LLP) for the Respondents
Hearing date: 18th March 2021
____________________
Crown Copyright ©
Lord Justice Underhill (giving the judgment of the Court):
INTRODUCTION
(1) Throughout the period in question Mr Depp, as he admitted, frequently took quantities of illegal drugs and drank excessively. The Judge found, with considerable support from the contemporaneous evidence, that when under the influence of drink and drugs he was liable to moods of extreme anger and jealousy and could behave highly destructively. (The Judge found that Mr Depp himself often referred to this aspect of his personality as "the monster" - see paras. 177186 of the judgment.) A particularly dramatic example of his behaviour under the influence of drink and drugs is incident 8, covered at paras. 287-370. The contemporaneous evidence shows that in that case Mr Depp did extensive damage to a house which he had rented and wrote offensive graffiti about Ms Heard (shown in photographs), some in paint and some in his own blood. While it does not necessarily follow that angry and jealous behaviour of this kind would involve physical violence against Ms Heard, the Judge evidently regarded it as making her allegations more likely to be true.
(2) There are several instances of Mr Depp acknowledging in contemporaneous texts, either to Ms Heard or to third parties, that he had been out of control through drink and drugs and had behaved very badly. He does not explicitly admit acts of assault against Ms Heard, but again the Judge regarded the admissions as making it more plausible that he did in fact commit such acts (and also that he might not be able to remember what he had done). Examples are the texts to Ms Heard and to his friend Paul Bettany following incident 4 (see paras. 251 and 244). As regards that incident, there were also texts from a member of Mr Depp's staff to Ms Heard referring to how badly Mr Depp had behaved, including that he had kicked her (see paras. 254-258).
(3) In relation to incident 12 there was photographic and medical evidence of injuries suffered by Ms Heard: see para. 455 (iv) and (ix)-(xi).
(4) Although generally in his evidence Mr Depp maintained his position that on none of the pleaded occasions had he assaulted Ms Heard, he did in cross-examination accept that in incident 12 he had head-butted her (see para. 455 (iii)), though he claimed that he had done so accidentally.
(5) In relation to several of the incidents Ms Heard wrote about them near- contemporaneously to her family or friends or in a diary.
THE APPLICATION FOR PERMISSION TO APPEAL
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. ... The reasons for this approach are many. They include
(i) The expertise of a trial judge is in determining what facts are
relevant to the legal issues to be decided, and what those facts are if they are disputed.
(ii) The trial is not a dress rehearsal. It is the first and last night of the show.
(iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
(v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
(vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
"174. In her evidence, Ms Heard said that she did sometimes throw pots and pans at Mr Depp but only to try and escape him and as a means of self-defence. She also said at times in Argument 2 she was being sarcastic.
175. In my view no great weight is to be put on these alleged admissions by Ms Heard to aggressive violent behaviour. It is trite to say, but nonetheless true, that these conversations are quite different to evidence in court. A witness giving evidence in court does so under an oath or affirmation to tell the truth, the whole truth and nothing but the truth. Questioning can be controlled by the judge. Questions which are unclear can be re-phrased. If a question is not answered, it can be pressed (subject to the court's control) and if still unanswered may be the proper object of comment. None of those features applied to these conversations which, in any event, according to Ms Heard had a purpose or purposes different from simply conveying truthful information."
When he came to deal with incident 13 the Judge referred back in terms to these paragraphs: see para. 476 (v). If Ms Heard's apparent admission to throwing pots and pans and a vase does indeed relate to incident 8, the Judge does not expressly refer to it in that context; but he clearly had argument 2 in mind because he referred to it at para. 356, and it is clear that his observations in para. 175 would apply equally in the context of any admissions made in relation to that incident.
"Mr Sherborne submitted that it was significant that Ms Heard had originally given a different date for Incident 2 and that she and her sister had been caught out in a lie which had led them to change their story and split Incident 2 into two separate incidents (three in the case of Ms Henriquez). He submitted that I should therefore conclude that there was no assault by Mr Depp on Ms Heard as she had alleged in Incident 2. Mr Sherborne in his closing submissions referred to other alterations in the details of this incident. I was not persuaded by this submission. I accept Ms Heard's explanation for how she originally came to give the date of 8th March. Ms Heard said that Mr Depp inflicted a number of assaults on her in March 2013. Only one is pleaded, but I accept that is why in some respects Ms Heard's account was confused. I accept Ms Henriquez's explanation that she had merged the two different incidents regarding Ms van Ree's paintings."
THE FURTHER EVIDENCE APPLICATION
"Your Lordship does not need to worry about this, because you only need to decide, did Mr Depp hit Ms Heard or not? How Mr Depp pieces that together after the event in his own mind is another matter."
He went on to repeat that the issue of the "hoax" and of whether Ms Heard was a gold- digger were not connected.
"[Ms Heard] 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. ... 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 . . 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."
He continued, at para. 578:
"As Ms Wass said in her closing submissions, if Ms Heard had been constructing a hoax there are various measures which she might have taken, but which she did not ... I agree that those points add further force to the conclusion I would anyway have reached, which is to reject the 'hoax' or 'insurance policy' thesis."
CONCLUSION