Depp II v News Group Newspapers Ltd & Anor

Under Defamation Act 2013, s 2, the defendant bears the burden of proving that the imputation conveyed by the publication is substantially true. The standard remains the civil balance of probabilities. Serious allegations do not create a higher standard, but require evidence of sufficient strength and quality. The court must identify the publication’s meaning and then assess whether the pleaded particulars substantially establish that meaning. Where several imputations are conveyed, failure to prove one does not defeat the defence if the unproved imputation does not seriously harm the claimant’s reputation having regard to those proved. Truth is a complete defence, so fairness and malice need not be considered once substantial truth is established.

The claimant brought a libel claim against the publisher of The Sun and its executive editor concerning an online article and substantially similar print article describing him as having committed domestic violence against Amber Heard. The defendants relied on the statutory defence of truth under Defamation Act 2013, s 2, pleading that the claimant had beaten Ms Heard and caused significant injury and fear for her life.

The court determined the meaning of the publications, the burden and standard of proof, and whether the pleaded incidents substantially established that meaning. It considered fourteen alleged incidents, the parties’ competing evidence, credibility, contemporaneous records and the defendants’ unsuccessful application to adduce expert evidence. The central issue was whether the published imputations were substantially true.

1. Meaning and issues. The publications conveyed that the claimant had committed physical violence against Ms Heard, causing significant injury and, on occasion, causing her to fear for her life. The defendants accepted these as Chase level 1 meanings, imputing guilt rather than suspicion or grounds for investigation.
2. Burden and standard. The burden rested on the defendants under Defamation Act 2013, s 2(1). The applicable standard was the balance of probabilities. There is no heightened civil standard for serious allegations, although the evidence required in practice must be sufficiently strong and persuasive: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; Re D [2008] 1 WLR 1499; R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468; Hunt v Times Newspapers Ltd [2013] EWHC 1868 (QB); and Bokhova v Associated Newspapers Ltd [2018] EWHC 2032 (QB), [2019] QB 861.
3. Fact-finding. The court accepted that the great majority of the pleaded assaults occurred, including repeated physical assaults, conduct associated with excessive alcohol and controlled-drug use, and incidents in which Ms Heard feared for her life. Incidents 6 and 11, and one additional confidential Hicksville allegation, were not proved. Those failures did not materially affect the overall truth of the published imputations.
4. Evidence and procedure. The court treated contemporaneous texts, diary entries, photographs, medical material and independent or near-contemporaneous accounts as important in assessing credibility. A failure to put an allegation to a witness may ordinarily prevent reliance on it against that witness, although the omission was not determinative of every issue: EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945, [2005] 1 WLR 3456. The late application for expert evidence concerning photographs, metadata and a recording was refused as disproportionate and unnecessary, applying British Airways v Spencer [2015] EWHC 2477 (Ch).
5. Disposition. The defendants proved that the words published were substantially true in the meanings found. The statutory defence was complete. The claim was dismissed. It was unnecessary to decide fairness or malice.

The judgment is a first-instance trial decision. It records earlier interlocutory applications concerning stay, disclosure, sanctions, third-party disclosure, privacy and evidence, but no appeal from the present decision is stated.