Depp II v News Group Newspapers Ltd & Anor

Permission to appeal in a fact-sensitive civil case requires a real prospect of success or another compelling reason. High-profile circumstances, serious consequences and alleged wider repercussions do not justify an appeal where that threshold is absent.

An appellate court does not rehear disputed evidence or substitute its view merely because another evaluation is possible. A trial judge may decide allegations incident by incident, using the evidence specific to each and the totality, without first making an overall credibility assessment. Informal recordings remain evidence, but their weight depends on context.

Fresh evidence must satisfy the Ladd v Marshall criteria, including probable important influence on the result. Evidence on an issue not tested at trial, and peripheral evidence about general credibility, will ordinarily fail that requirement.

John Christopher Depp II brought a libel claim against News Group Newspapers Ltd and Dan Wootton concerning an article alleging that he had physically abused his wife. Nicol J dismissed the claim after finding that Mr Depp had assaulted Amber Heard on most of the pleaded occasions: [2020] EWHC 2911 (QB).

Mr Depp applied to the Court of Appeal for permission to appeal, alleging errors in the trial judge’s assessment of the evidence and credibility. He also sought permission to adduce post-trial evidence concerning whether Ms Heard had paid a $7 million divorce settlement to charity. The central issues were whether the proposed appeal had a real prospect of success and whether the further evidence could probably have affected the result.

1. Permission to appeal. The proposed appeal had no real prospect of success. The exceptional public profile of the case, its consequences for Mr Depp and alleged wider repercussions did not constitute a compelling reason for an appeal to proceed.
2. Appellate restraint. The Court applied the approach stated in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5. An appellate court does not rehear evidence and should not interfere with findings of primary fact, evaluations or inferences unless compelled to do so.
3. Fact-finding. The trial judge was entitled to assess each alleged assault by reference to the evidence relating specifically to it and the evidence as a whole. He was not required first to make an overall assessment of Ms Heard’s credibility, resolve every detail of the pleaded allegations or find that witnesses whose evidence he rejected had deliberately lied. His reasons were sufficiently clear.
4. Contemporaneous recordings. Taped conversations were not to be disregarded merely because they were not evidence given in court. However, the weight attached to apparent admissions was for the trial judge. Loose, unstructured, therapeutic and emotional conversations could properly receive little weight where context made their meaning uncertain.
5. Further evidence. Applying the Ladd v Marshall principles as glossed in Terluk v Berezovsky [2011] EWCA Civ 1534, the evidence failed the requirement that it would probably have an important influence on the result. The charity evidence was peripheral to the hoax or insurance thesis and did not bear on the incident-specific findings. The Court also doubted whether reasonable diligence had been shown and considered it unfair to pursue an issue not tested in cross-examination. It did not decide the additional question raised by Braddock v Tillotson’s Newspapers Ltd [1950] 1 KB 47.
6. Hearsay. There was no error in the trial judge’s treatment under sections 4(1) and 4(2)(a) of the Civil Evidence Act 1995. Tendering the witness for cross-examination was relevant, but the rejection of his evidence rested on substantive problems unrelated to its hearsay character.

Both applications were dismissed.

1. Court of Appeal (Civil Division): refused permission to appeal and permission to adduce further evidence, [2021] EWCA Civ 423.
2. High Court of Justice, Queen’s Bench Division: Nicol J dismissed the libel claim, [2020] EWHC 2911 (QB).