Posted: 02/12/2020
As readers of any newspaper in recent weeks will know, the American actor, producer and musician, Johnny Depp, lost a high profile libel action against The Sun newspaper. As a result, Mr Depp will now forever be associated with the term ‘wife beater’ which is already having consequences for his career and his former wife, Amber Heard, will have to continue to live with the impact of past domestic abuse.
Partner Jeremy Clarke-Williams, and Grace Lymer-Sullivan, trainee in our reputation management and privacy team take a look at the reported judgment to outline what lessons can be learnt before making such a claim, and Charlotte Purves, associate in our family team, looks at the remedies available to victims of domestic abuse, and provides some useful tips to practitioners as to how to assist clients who are suffering from, or at risk of suffering from, harm.
On 27 April 2018, The Sun published an article on its website, written by its executive editor, Dan Wootton, with the headline “GONE POTTY: How can JK Rowling be “genuinely happy” casting wife beater Mr Depp in the new Fantastic Beasts film?” The headline to the article was altered the next day so that the phrase “wife beater” was removed, but the rest of the content remained the same. An article in substantially the same form was then published in the print edition of the paper on 28 April 2018.
The article contained serious allegations that Depp, was excessively controlling throughout his relationship with his former wife, and was both verbally and physically abusive towards her, in particular when he was under the influence of substances.
Depp strongly denied these allegations and issued libel proceedings against News Group Newspapers, the publisher, and Dan Wootton on 1 June 2018 in relation to each of the articles.
The action was defended, and the Defendants pleaded the defence of truth (section 2 of the Defamation Act 2013) in relation to the following meaning which they contended the articles bore (and which the trial judge accepted):
“the Claimant beat his wife Amber Heard causing her to suffer significant injury and on occasion leading her to her fearing for her life.”
The Sun relied on 14 alleged incidents between 2013 and 2016 that had occurred all across the world (from LA to the Bahamas, from Hicksville to Tokyo and from Australia to south east Asia), when it said Depp had physically assaulted his then wife, causing her serious injury.
The enmity between Depp and Heard had been extensively reported since their marriage ended. The case was never likely to settle and so the outcome of the trial was going to be determined on whose evidence the judge preferred – Johnny Depp’s or Amber Heard’s. The trial took place over 16 days in July and was extensively and breathlessly followed by the world’s media. Hollywood glamour may have come to the Royal Courts of Justice – but the allegations at the heart of the case were extremely serious and decidedly unsavoury. The stakes were incredibly high for the parties.
The judgment in the case was ultimately handed down on 2 November 2020 with Mr Justice Nicol dismissing Depp’s claim. He found that the allegations against Depp that he was a “wife beater” were substantially true, and held the following:
The judgment was met with horror by legions of Depp fans. Inevitably (and depressingly) many surfaced on social media defending him and making concerning and threatening comments about the judge.
Depp's legal team called the judgment “perverse and bewildering” and suggested it was “so flawed it would be ridiculous for Mr Depp not to appeal this decision”.
Despite this reaction, this looks like a difficult judgment to appeal. The trial judge listened to, and saw, all the witnesses and reached his conclusions. On the basis of the evidence presented to him, he found that the Defendants had proved the substantial truth of their allegations. Unless his conclusions were ones that no reasonable judge could have reached, it is difficult to see the Court of Appeal interfering with the judgment.
There are currently further libel proceedings brought by Depp pending in the United States – this time against Heard personally, so the drama may not be over just yet. The UK judgment will be a helpful one for Ms Heard (as no doubt will be the transcript of the evidence which Depp gave on oath in the witness box) in the US proceedings but it does not of itself carry any evidential weight. All the witness evidence will have to be given again.
The fact that the action even reached trial is rather rare, as the vast majority of libel cases are settled before trial. However, when a case depends almost entirely on whose oral witness evidence is believed, and the accounts differ so markedly between the Claimant and the Defendant, settlement becomes much more difficult. (Another example was the ‘Plebgate’ trial between PC Toby Rowland v Andrew Mitchell in 2014. In that case PC Rowland’s evidence was preferred and he won the case).
Other than being a case in the public eye, there is a lot to take away from the interplay between legal elements and real-life scenarios in this case.
Throughout this case, the media has largely focused on the graphic evidence given on both sides about the allegations which has perhaps left some confusion regarding what exactly a libel Defendant must establish when they seek to prove that the words complained of are “true”.
Legally, a Defendant does not have to prove the truth of every single imputation so it was not necessary in this case for the Defendants to prove that every single allegation of domestic abuse alleged by Heard occurred. It was enough to establish that 12 out of the 14 incidents relied on by The Sun were substantially true, and that Depp had been violent towards Heard during their marriage.
It is of course always a risk for a Defendant (here the newspaper group) who seeks to defend a libel claim by pleading that the words complained of are true, because the burden of proof is on them. If they are unsuccessful, they are likely to be liable for a significantly increased level of damages because the judge will take into account the fact the defendant has never apologised, and the enormous additional stress to the Claimant caused by the litigation and trial process. The costs of a fully contested action and trial are also substantial and the general rule is that the loser pays the winner’s costs (in addition to their own). However, in this case, the Defendants were a wealthy newspaper group and so they could bear the cost. In addition, the fact of the litigation itself provided its own compelling ongoing media story to report and (as mentioned) the outcome of the case was largely going to rest on whose evidence the judge preferred. As a result, The Sun will have felt that defending the claim was a risk worth taking.
Depp, decided that libel proceedings were the most effective way to try and vindicate his reputation. As a seasoned star, he must have anticipated the media storm that such proceedings would bring. For other, less wealthy parties, the sheer cost of contested litigation is another important factor in deciding whether to litigate, but the wealth of these parties made it a less crucial consideration. However, in the aftermath of the judgment, Depp must be wondering whether ignoring the story would have had a lesser impact on his career; he has already lost the part of Gellert Grindelwald in the Fantastic Beasts franchise. Round two of the libel battle now shifts across the Atlantic to the US courts.
Though the case itself was a libel action, it was allegations of domestic abuse that lay at the centre of this matter. Some readers may be surprised to learn that there is presently no definition of domestic abuse enshrined in legislation. There is a bill in Parliament for this purpose awaiting its second reading. This bill, if passed, will provide a definition of domestic abuse, and will seek to ensure that the offence is better understood, so as to encourage more victims to come forward (The Domestic Abuse Bill). For further information, see this Government factsheet.
There is, however, a cross-government definition, which was extended in 2012:
[Domestic abuse refers to] ‘any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse: • psychological • physical • sexual • financial • emotional.’
'Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.'
The definition rightly encompasses many forms of abuse, which historically, had not been widely acknowledged. This is particularly so for coercive and controlling behaviour, which is now an offence in its own right (s76 Serious Crime Act 2015). It is expected that lawyers will have seen a growing number of such allegations within their own caseload.
It is not uncommon for clients to disclose that they have suffered from a form of abuse. Sometimes, the separation itself solves the issue, but there are circumstances in which there is a threat of, or there remains, continuing abuse.
Involve the police
In such circumstances, the first consideration for any lawyer must be reporting the matter to the police, particularly if it appears that the behaviour complained of is escalating. The police can issue a Domestic Violence Protection Notice or apply for an Order on the victim’s behalf. Many individuals are, however, reluctant to inform the authorities, and if that is the case, there are other avenues which can be investigated which will provide the necessary protection.
Use the family courts to provide protection
If the decision is taken to avoid police involvement, then consideration should be given to making an application to the Family Court for a protective order. The first, and most common type of order that can be obtained, is known as a non-molestation order.
Non-molestation order
A non-molestation order can protect an individual against violence, threats of violence, harassment and controlling or coercive behaviour. The Orders generally last a year, and a breach of the Order can result in the perpetrator being imprisoned (for two to five years) or fined. The Order will come into effect once it is served upon the perpetrator, and it is often wise, therefore, to arrange personal service.
Orders can only be obtained against certain individuals, such as:
To apply for a non-molestation order, you must generally be over 16 years old (if younger, the court’s permission is required first). These orders are not made freely, and the court will expect to see evidence of the abuse complained of. The Court will need to be persuaded that protection, by way of an order, is required. As such, a full and detailed statement should accompany the application, along with photographic or documentary evidence in support.
Do not, however, think that physical violence needs to have occurred for an order to be made. As outlined above, the legislative definition of domestic abuse encompasses harassment and controlling behaviour.
Occupation orders
It may also be necessary to apply for an occupation order, and the reality is that more often than not, a party will wish to apply for both types of order at the same time.
If made, an occupation order will prevent the offending party from re-entering the home for around 6 months (or in some cases, they can regulate the areas of a home in which the perpetrator is able to go). Such orders are rare, and will be made in those cases where very serious harm is complained of.
When considering an application for an occupation order, the Court will apply the ‘balance of harm’ test, which means that the Court will weigh up whether the applicant is likely to suffer significant harm if the order is not made, versus the harm that the respondent will suffer if the order is made. In carrying out this exercise, the court will look at the housing needs of both parties, their respective financial resources, the impact of any order upon any child of the family and the parties’ behaviour towards one and other.
The ability to obtain an occupation order is dependent upon the relationship between the parties, and the applicant’s right to occupy the home in question. The law is quite complex, and the assistance of a lawyer should be sought at an early stage.
With or without notice?
It is possible to make the above applications to the Court without telling the respondent, but the circumstances in which such an approach should be taken are limited. Although there are often good reasons for not wanting to tell the respondent about your intention to apply to the court (such as fear for their reaction) it is almost always advisable to at least provide informal notice. This is extremely fact specific, and there is certainly not a ‘one size fits all’ approach.
Orders in practice
The courts are prioritising applications for non-molestation and occupation orders during the Coronavirus (Covid-19) pandemic. The courts service has issued guidance to help to make sure that victims of domestic abuse receive protection as soon as possible. Our experience is that the court is working hard to ensure victims are given access to the safeguarding they need. Kerry Fretwell, partner in the firm’s Reading office, commented:
“Non-molestation and occupation orders are draconian measures and breaching them is a criminal office. It is important that anyone seeking such orders puts forward a comprehensive case which meets the criteria set out in law. Legal advice should be sought to ensure the proper evidence and procedure is followed to have the best chance of persuading the court the orders are proportionate and necessary.”
This article has been co-written with Grace Lymer-Sullivan, a trainee solicitor in the reputation management and privacy team.
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