Posted by: John Brace | 10 April 2020

The Hon. Mr Justice Nicol agreed privacy order in Johnny Depp/The Sun Newspaper libel trial allowing Amber Heard and another witness to give some evidence during the libel trial in private (with reporting restrictions)

The Hon. Mr Justice Nicol agreed privacy order in Johnny Depp/The Sun Newspaper libel trial allowing Amber Heard and another witness to give some evidence during the libel trial in private (with reporting restrictions)

                                               

By John Brace (Editor)
and
Leonora Brace (Co-Editor)

Royal Courts of Justice, London, UK (resized). Picture credit sjiong, made available under the CC BY-SA 2.0 licence

Royal Courts of Justice, London, UK (resized). Picture credit sjiong, made available under the CC BY-SA 2.0 licence.

Please note that comments are turned off due to the ongoing nature of this case.

There are two other report of hearings in the same case also published on this blog.

The Hon. Mr Justice Nicol asked to agree to 4 further witnesses (Miss Vanessa Paradis, Miss Winona Ryder, Mr David Killackey and Miss Kate James) in Johnny Depp/The Sun Newspaper libel case (16th May 2020)

Adam Wolanski QC asked Nicol J at a High Court of Justice hearing (Thursday 25th June 2020) to strike out the Johnny Depp libel claim against The Sun newspaper (and Sun journalist Dan Wootton) alleging a breach of an earlier disclosure order of Nicol J (29th June 2020)

This is a report on a public hearing held on the 8rd April 2020 which started at 10.30 am in the High Court of Justice (Queen’s Bench Division) before the Hon. Mr Justice Nicol.

Due to the coronavirus pandemic the hearing was held (see Civil Procedure Rule Practice Direction 51Y) not in person but virtually as a video hearing. It was an application notice hearing in the libel case QB-2018-006323 (Depp v News Group Newspapers Ltd & Dan Wootton).

David Sherborne (instructed by Schillings International LLP) for the Claimant (John Christopher Depp II (“Johnny Depp”)).

Adam Wolanski QC (instructed by Simons Muirhead &Burton LLP) was for the Defendants (News Group Newspapers Limited and Dan Wootton).


The video hearing started at 10.34 am, was being recorded and there were a total of nineteen people watching.

Nicol J asked who was participating?

Adam Wolanski QC answered that he was for the Defendants.

Nicol J asked if he could see him and whether David Sherborne could see him?

Adam Wolanski QC confirmed that he could hear but not see Nicol J.

Nicol J stated that he would let us see if he could sort it out, could he be seen now?

Adam Wolanski QC confirmed that Nicol J now could be seen.

Nicol J stated that they may not appreciate it but it was a major technological achievement.

Adam Wolanski QC stated that he did appreciate it.

Nicol J stated that what they were dealing with was Mr Wolanski’s application on behalf of the Defendants that part of the trial be held in private – had he understood that?

Adam Wolanski QC replied that that was all that was on the agenda.

Nicol J stated that the hearing would be in public. As far as possible a hearing should be conducted in public. However it may be necessary for part of it to be in private when Adam Wolanski QC wished, so that Adam Wolanski QC could develop his points in private, but as far as possible the hearing should be in public, did Adam Wolanski QC understand that?

Adam Wolanski QC confirmed that he did.

Nicol J stated that he would ask for submissions to start but at the point it was considered necessary to hold the hearing in private to please indicate, then he would hear the application in private.

Adam Wolanski QC stated that on the right of the screen there was a long list of attendees including one journalist he named, there may be others. He stated that the press had been put on notice of the application through the Press Association’s Injunction Alert Service. As far as he knew the press were part of the service and were aware of it. He had been given Mr Baker’s details who had expressed an interest in taking part but he didn’t know about other press.

Nicol J stated that it was not necessary for the press to identify themselves as it was a public hearing and the public were free to attend.

Adam Wolanski QC stated that the order sought was to exclude the public and media from attending a short part of the trial relating to a discrete part of Ms Amber Heard’s evidence. He referred to another copy that had been sent through half an hour ago.

Nicol J asked him to hold on please whilst he saw if he could find it. He then referred to the order and indicated to Adam Wolanski QC to continue.

Adam Wolanski QC stated that it also ordered restricted access to materials, such as sensitive matters in parts of witness statements that were listed in the confidentiality schedules and an ancillary order to prevent reporting of the matters held in private. The press had been served notice of the application and the hearing. The only media organisation that had made a request to see the confidential materials that were appended after making the undertaking required was Associated Newspapers who had made a decision not to oppose the application.

Nicol J stated that as he understood it, any other press organisation prepared to give undertakings could have seen the skeleton argument and confidential materials but only Associated Newspapers chose to do so?

Adam Wolanski QC stated that he was informed that they were not opposed to the hearing having read them. No other media organisation had asked to see them. He had been told that the Press Association had considered a request but had decided not to having been informed of Associated Newspaper’s position, there was no opposition from any other member of the press. As far as he was aware Mr Depp’s position was one of neutrality.

Nicol J referred to Mr Sherborne’s note and asked if Adam Wolanski had seen it?

Adam Wolanski QC stated he had seen it that morning.

Nicol J also said for the record that the bundle produced for the hearing and Mr Sherborne’s note also attracted press cuttings.

Adam Wolanski QC stated that hopefully the internal tabbing had worked.

Nicol J stated that yes it did work and thanked him.

Adam Wolanski QC stated that Depp’s position was one of neutrality, but that the note this morning was not quite as neutral. In Adam Wolanski QC’s opinion the application if successful would result in a fairly limited incursion on open justice principles. The evidence it related to was very limited in scope therefore if approved the press and public would be excluded but it would only be for a very short time.

It was about just one incident described in detail and he didn’t think it would take up very much time, but obviously it would interfere to an extent with press and public attendance but was of limited scope.

The evidence it related to was that of Ms Amber Heard and Miss Kristina Sexton which was also of limited scope on the same topic.

It was a relatively short part of the pleadings, but it was dealt with in a short confidential schedule to the amended reply. The matters alleged were strongly disputed by Mr Depp, Adam Wolanski QC wanted to make that clear.

The application was one that would have limited impact on the press to report the trial case which was going to be very widely publicised both in this country and internationally. There had been a great deal of publicity already concerning Miss Heard’s witness statement (see pages 66-68). She had been the subject of a great deal of vilification in the press and social media that was of a concerning nature. If the allegations in the case, if this evidence was reported in open proceedings the point was that the concerns have particular vehemence and the nature of the evidence would no doubt attract massive international publicity which couldn’t be sensibly disputed.

If reported it would interfere with her human rights under article 8.

Adam Wolanski QC wouldn’t go into the detail of the nature of evidence of Miss Heard’s concerns as were in the second witness statement, but there were two additional matters. If Miss Heard had to give evidence relating to these matters in front of the press and public the experience of giving evidence would be extremely difficult and was described as “terrifying”. The other point was that Miss Heard had not chosen to bring or defend proceedings, she was merely a witness.

Nicol J replied, “Yeah”.

Adam Wolanski QC stated that Miss Heard was not even alleged to have been the source of the articles complained of. No lesser measure would achieve the objective of protecting Miss Heard from consequences, it was not practical to shield the witness from view as this would not have the effect needed. Similarly it was unrealistic for her to give witness evidence by video, regardless of any practical difficulties they had heard at the last hearing that Mr Depp would object to an attempt to give evidence by video.

Nicol J stated that as he understood it, there were two points being made in relation to that one. That it would be wrong for the two principal witnesses Mr Depp and Ms Heard to be giving evidence in a different fashion from one to another, secondly it was preferable for a principal witness to give their evidence in the traditional way in person.

Adam Wolanski QC confirmed that those were the points made. He didn’t want Ms Heard to give evidence by video link, he wanted her as a live witness. Video link was not something that even if allowed would make any difference and would give rise to significant practical problems. He referred to the law and authorities on the disclosure and nature of sensitive material and then referred to Civil Procedure Rule 39.2(4) which was in the electronic bundle at page 73.

Nicol J asked for a moment to let him try to get to that part of the bundle and he asked for a tab number? He confirmed he had got to 39.2 and referred to 39.2(3).

Adam Wolanski QC referred to a hearing in private, but that it had to be read in conjunction with 39.2(4).

Nicol J stated that was whether her identity shouldn’t be disclosed, but that it was going to be disclosed.

Adam Wolanski QC stated that it was somewhat unusual but he would go into it more in closed session, but that it couldn’t be in the territory of subparagraph 4.

Nicol J agreed it was not in the territory and that the application was for part of the hearing in private which was 39.2(3).

Adam Wolanski QC stated that the reason he referred to 39.2(4) was that where the Court was considering anonymisation, it could be for securing the “proper administration of justice” and also an order to protect the interests of that part or witness, when he came to the authorities the applicable principles went beyond just the administration of justice and also whether or not to protect the interests of a part of witness, but 39.2(3) did not explicitly state that.

Nicol J stated that as far as he understood, it was covered by 39.2(g) which was “any other reason”.

Adam Wolanski QC pointed out that the category it came into was that it had to be read in reference to the overall context of the scheme. He gave the example of that unless an order was made justice simply couldn’t be done for example a witness wouldn’t turn up and referred to the authorities including Khuja [[2017] UKSC 49]. The Court must have regard to the convention rights and the relevant principles when there is a departure from open justice. Adam Wolanski QC also referred to the Master of the Rolls’ practice guidance on interim applications on non disclosure orders which could be found on page 78 of the bundle.

Nicol J confirmed that yes, he had got page 78.

Adam Wolanski QC referred to paragraph 9 which contained a summary of the jurisprudence in the field which was also at paragraphs 9-15.

Nicol J agreed that as Adam Wolansksi QC stated they were well-known principles.

Adam Wolanski QC referred to the Khuja Supreme Court case [[2017] UKSC 49] which was in the electronic bundle.

Nicol J referred to it as Khuja and Times Newspapers [[2017] UKSC 49].

Adam Wolanski QC confirmed that that was it.

Nicol J asked for just a moment.

Adam Wolanski QC agreed.

Nicol J asked if there was a particular part that Adam Wolanski QC would like him to look at?

Adam Wolanski QC stated that the facts were different in Khuja [[2017] UKSC 49]. In that case the Claimant sought an injunction preventing reports of criminal proceedings. It involved evidence regarding sexual violence against minors, was not reported at the time and made subject to a Contempt of Court Act 1981, s.4(2) order at the time of the trial. It was still being investigated by the police and there was the possibility that he would be tried in relation to the matters discussed in court. After the trial had ended, police told Mr Khuja that he would not be tried. Just before the Contempt of Court Act 1981, s.4(2) order was to be lifted, there was an immediate application to the High Court concerning Times Newspapers Limited in particular in respect of reporting those parts of the evidence during the criminal trial while evidence had been given.

It had looked at the topic of open justice and orders had been granted that derogated from open justice. Starting at paragraph 12 [[2017] UKSC 49]

Nicol J asked Adam Wolanski QC for just a moment to allow him to get to paragraph 12 and to hold on.

Adam Wolanski QC stated that Nicol J had gone silent, he couldn’t hear Nicol J and he’d gone silent. He asked the Judge’s Clerk Ms Baker could she hear him? He couldn’t hear Nicol J and also that he had gone silent.

Amy Baker stated that she would see what she could do.

Nicol J apologised for the technical problem just now and he had got as far as paragraph 12 in Khuja [[2017] UKSC 49].

Adam Wolanski QC stated that he would not read paragraphs 12 and 13 [[2017] UKSC 49] out but it dealt with why open justice was important, the principle of derogation and why it was not absolute. Adam Wolanski QC particularly referred to paragraph 14 [[2017] UKSC 49] and the sentence beginning after the reference to R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General [1975] QB 637, 652 beginning with the phrase “Orders controlling”.

Nicol J read out, “Orders controlling the conduct of proceedings in court in this way remain available in civil proceedings whenever the court ‘considers non-disclosure necessary in order to protect the interests of that party or witness.’”

Adam Wolanski QC stated that that was right.

He referred to observation about it that Lord Sumption had made about orders and the power of the court to control its proceedings by whatever way necessary to give effect to rights. Orders controlling conduct were not just anonymity orders. Again referring to Lord Sumption and then paragraph 14 [[2017] UKSC 49], he quoted, “the court retains