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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Depp II v News Group Newspapers Ltd & Anor  EWHC 1237 (QB) (18 May 2020)
Cite as:  EWHC 1237 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| John Christopher Depp II
|- and -
|(1) News Group Newspapers Ltd.
(2) Dan Wootton
Sasha Wass QC, Adam Wolanski QC and Clara Hamer (instructed by Simons Muirhead and Burton LLP) for the Defendants
Hearing date: 13th May 2020
Crown Copyright ©
Mr Justice Nicol :
i) Assessing the seriousness or significance of the breach.
ii) Considering why the default occurred.
iii) Considering all the circumstances of the case and, in particular, the factors listed in CPR r.3.9(1)(a) and (b).
'If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.'
'The Claimant encountered practical difficulty in obtaining signed copies of each of the following witness statements [which included those of Ms James and Mr Killackey], due to the witnesses being in different time zones, undertaking various travel arrangements and having their own separate work commitments.'
i) I agree with Ms Wass that the behaviour of Ms Heard towards Mr Killackey says nothing or nothing of significance as to whether the Claimant's behaviour towards her was controlling or otherwise as she describes.
ii) Mr Killackey's statement speaks of Ms Heard giving instructions to him regarding further work on her Mustang in June 2016, but this was, as he says, after her relationship with the Claimant had come to an end. It may be that Ms Heard was without her Mustang for rather less than 3 ½ years as she says in her witness statement, but I do not consider that I will be greatly helped by the resolution of precisely how long that period was.
iii) The behaviour of Ms Heard's father towards Mr Killackey, even if it was as described by the latter, is irrelevant to any issue which I have to decide.
i) She saw Ms Heard on a daily basis. Often Ms Heard was undressed or partially undressed. Ms James says that she never saw any sign of injury on Ms Heard. Mr Sherborne submits that this would be surprising if Ms Heard was subjected to the regular physical assaults which she alleges she was subjected to by the Claimant.
ii) Ms James was able to witness the relationship between the Claimant and Ms Heard. She gives a contrary account to that of Ms Heard. She did not witness him being aggressive or controlling. On the contrary, she describes the Claimant as being kind.
iii) In her third witness statement, Ms Heard says that she consumed only a limited amount of alcohol. Ms James paints a different picture. She also describes Ms Heard's use of drugs.
iv) She gives evidence of Ms Heard's willingness to lie:
a) Regarding the immigration status of Savannah McMillan.
b) Regarding the alleged smuggling of dogs into Australia.
i) Much of what Ms James had to say was irrelevant to the issues which I had to decide.
ii) Ms James had been dismissed by Ms Heard. Ms James was a disgruntled ex-employee whose evidence was tainted by spite and which should be excluded in the interests of proportionality.
iii) Ms James had no medical qualifications and yet she purported to express an opinion on Ms Heard's use of the drugs Provigil and Accutane.
iv) The issues concerning Ms Heard's letter to the Department of Homeland Security and the alleged smuggling of dogs into Australia were contentious and, if Ms James was able to give evidence in relation to them, would lead to satellite litigation.
i) Paragraphs 1-6. These are introductory and may be adduced by the Claimant.
ii) Paragraph 7 - the redesign of Ms Heard's apartment. This is irrelevant or disproportionate and may not be adduced by the Claimant.
iii) Paragraph 8 – Ms Heard's change in the style of her clothes. This is irrelevant or disproportionate and may not be adduced by the Claimant.
iv) Paragraph 9 – Ms Heard taking photographs of Ms James' son. This is irrelevant or disproportionate and may not be adduced by the Claimant.
v) Paragraph 10 – Tipping off paparazzi and Ms James being sent to buy magazines. This is irrelevant or disproportionate and may not be adduced by the Claimant.
vi) Paragraph 11 – Ms Heard asking for designer clothing. This is irrelevant or disproportionate and may not be adduced by the Claimant.
vii) Paragraph 12 - Ms Heard's concern that the Claimant might leave her. This is irrelevant or disproportionate and may not be adduced by the Claimant.
viii) Paragraph 13 – Ms Heard humiliating Ms James in the presence of the handyman, Victor. This is irrelevant or disproportionate and may not be adduced by the Claimant.
ix) Paragraph 14 - Ms Heard being verbally and mentally abusive to Ms James. This is irrelevant or disproportionate and may not be adduced by the Claimant.
x) Paragraph 15 – Ms Heard's use of Provigil. Ms James is not able to give expert evidence and her evidence as to this is inadmissible. Ms James' evidence of the effect of Provigil on herself (when she took half a tablet) is irrelevant or disproportionate. This paragraph may not be adduced by the Claimant. That also includes pages 1-2 of Exhibit KJ1.
xi) Paragraph 16
a) The effect of Provigil is similar to amphetamine. Ms James is not able to give expert evidence and her evidence as to this is inadmissible. It may not be adduced by the Claimant.
b) Ms Heard drank vast quantities of red wine each night. In her third witness stataement Ms Heard says at paragraph 5,
'Johnny says I often drank more than him, and that I am a regular/heavy drug user. That's just not true, although of course I drank more than him during the brief periods when he was sober. If he was sober, then to be respectful, I would usually check with him that it was okay for me to drink wine in front of him. He would say yes and often insisted on pouring my wine.'
This part of paragraph 16 potentially responds to this evidence of Ms Heard and may be adduced by the Claimant.
xii) Paragraph 17 – Ms Heard's use of Accutane. Ms James is not able to give expert evidence and this paragraph is inadmissible. It may not be adduced by the Claimant.
xiii) Paragraph 18 - Ms Heard took [magic] mushrooms and MDMA. In her third witness statement paragraph 6 Ms Heard admits taking these drugs. The evidence in paragraph 18 is therefore irrelevant. It may not be adduced by the Claimant.
xiv) Paragraph 19 – Ms Heard sending abusive texts to Ms James and being cross when Ms James sent her an SMS message. This is irrelevant or disproportionate and may not be adduced by the Claimant.
xv) Paragraph 20 – abusive messages to Ms James on her birthday. This is irrelevant or disproportionate and may not be adduced by the Claimant.
xvi) Paragraph 21 – Ms James saw no sign of a serious or messy fight when she called unannounced. The Claimant may adduce this evidence.
xvii) Paragraph 22 – Ms James never saw any sign of physical violence on either the Claimant or Ms Heard. I agree that this paragraph is relevant and the Claimant should be able to adduce it.
xviii) Paragraph 23 – Ms Heard was jealous. This is irrelevant or disproportionate and may not be adduced by the Claimant. The same goes for page 3 of Exhibit KJ1.
xix) Paragraph 24 –
a) Ms James' impression of the Claimant. This is of some relevance and it is not disproportionate for the Claimant to adduce it.
b) Ms James' son's impression of the Claimant and Ms Heard and the degree to which Ms Heard contributed to the Children's Hospital, Los Angeles. These are irrelevant or disproportionate and may not be adduced by the Claimant.
xx) Paragraphs 25-26 – Ms Heard's letter to the Department of Homeland Security regarding Savannah McMillan and Exhibit KJ1 pages 4-5. I agree with Mr Sherborne that this incident is potentially relevant to Ms Heard's credibility. Because it concerned her credibility it was not a matter which had to be pleaded. The issue of potential relevance is whether Ms Heard said something to the Department which she knew was untrue. I agree with Mr Sherborne that this is relatively self-contained and the risk of satellite litigation does not persuade me that it should be excluded. The Claimant may adduce this evidence.
xxi) Paragraphs 27-31 – The smuggling of dogs into Australia. The potential relevance of this issue is whether Ms Heard said something to the Australian authorities or court which she knew was untrue. There is an overlap with the objection which the Defendants have expressed to certain other passages in the witness statements served on behalf of the Claimant (for instance the witness statement of Kevin Murphy). I have directed that the Defendants' application to exclude those passages will be heard at a convenient point or points at the trial. It is sensible to defer similarly the issue of whether these paragraphs of Ms James' statement can be adduced by the Claimant until the Defendants' objections to the passages in Mr Murphy's witness statement can be resolved.
xxii) Paragraph 32 and page 6 of Exhibit KJ1 - 2013 incident regarding providing altered certificates of when dogs were inoculated and whether there was a vet who could be 'greased'. Potentially this matter also goes to Ms Heard's credibility and the Claimant should be entitled to adduce it.
xxiii) Paragraphs 33-37 – the effect on Ms James of working for Ms Heard. Save for the first two sentences of paragraph 36 (Ms Heard's dismissal of Ms James without notice) these paragraphs are irrelevant or disproportionate and may not be adduced by the Claimant. That includes pages 7-8 of Exhibit KJ1