Posted by: John Brace | 10th 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 the power which it has always possessed to allow evidence to be given in such a way that the identity of a witness or other matters is not more widely disclosed in open court”.

Adam Wolanski QC referred to a power the Court had in the Contempt of Court Act 1981, s.11 and ancillary orders. He referred to paragraph 15 [[2017] UKSC 49] and what was important as more recently there were two factors and a score of exceptions in part because of the frequency and growing volume of civil and criminal matters such as the exception for national security.

The Court was bound by section 6 of the Human Rights Act 1998 to respect human rights. Article 8 rights which were heavily qualified had to be balanced against publication (article 10 rights). He also referred to article 2 and 3 rights. What was reported in the press and broadcast media was amplified by social media. There was already a large amount on media which was distressing. She had been vilified on social media and he asked Nicol J to look at paragraph 27 [[2017] UKSC 49].

Nicol J confirmed this and referred to a particular paragraph and the re Guardian News and Media Ltd [[2010] UKSC 1] reference.

Adam Wolanski QC referred also to the re Guardian News and Media Ltd [[2010] UKSC 1] case. On the subject of control orders, it had been rejected by the Supreme Court but the test applied there was explained at (g) about half-way down which was the test derived in Lord Hoffman’s speech. To justify any curtailment of the right to a private and family life, the test must apply as it applied in the Guardian [[2010] UKSC 1] case and approved here in Khuja [[2017] UKSC 49]. When the Court considered making an order that anonymised, it must equally apply to the application being made today [8th April 2020] as to whether there should be publication of matters held in private and whether there was a legitimate public interest in curtailment of that right to family life as in that Khuja [[2017] UKSC 49] case and the Kaim Todner case.

Nicol J asked for just a moment.

Adam Wolanski QC referred to page 124 onwards of the electronic bundle.

Nicol J asked for just a moment.

Adam Wolanski QC stated that the facts were very different from the current case, but was an application by a firm of solicitors regarding the conduct of the firm and he referred to paragraphs 8 and 9.

Nicol J repeated back paragraphs 8 and 9.

Adam Wolanski QC stated at pages…

Nicol J asked Adam Wolanski QC to just give him a moment and he would… sorry just a moment… the case didn’t seem to have paragraph numbers.

Adam Wolanski QC stated that if Nicol J scrolled down it did and referred to the relevant part at a specific page number of the bundle.

Nicol J stated that oh, he did see it did yeah.

Adam Wolanski QC continued that the passage of particular relevance was paragraph 8, but it was worth reading from paragraph 6 onwards. The Master of the Rolls dealt with the nature, it was obvious that if it was for a limited period then it was less objectionable than a permanent one. If proceedings were behind closed doors then it was accepted that it was a significant interference.

He continued that a witness that had no interest had the strongest claim of being prejudiced by publicity, especially when the courts and parties may depend on their cooperation. In general embarrassment or consequential loss by participation was accepted. Paragraph 9 should be read too.

Nicol J also referred to paragraph 9.

Adam Wolanski QC finished by stating that the applicable legal principles of what he had to say got into the confidential matters and it was very difficult to say without disclosing the nature of the allegations in open court so he invited the Court to sit in private.

Nicol J asked David Sherborne if there was something he wanted to say while the hearing was still in public?

David Sherborne stated that he wanted to say some observations.

Nicol J stated that rather than go back and forth between public and private he wondered if it was convenient for Mr Sherborne to make them in public, then Nicol J could move to private session where David Sherborne and Adam Wolanski QC could develop the points that could only be made in private.

Adam Wolanski QC stated that he was content with that.

David Sherborne referred to the March note and the updated note earlier today [8th April 2020]. It had been clear at the hearing on the 18th of March that allegations of sexual violence had been deliberately referred to by counsel at pre-trial hearings with Ms Heard’s knowledge and consent. She worked closely with the Defendants and in his opinion was not just a mere witness but practically a party. Ms Heard and her friends as witnesses were so central for the Defence that they were not just a mere witness as also her representative had made sure to be present and at the 18th of March hearing Defendants’ counsel in deliberation had referred to in open court allegations of sexual violence.

The application was for a serious derogation from the open justice principle, but not the whole of the evidence would be in private. The allegations of physical violence were denied by Johnny Depp.

So much publicity had already been given to allegations of sexual domestic and physical violence by Ms Heard herself that she hadn’t sought anonymity – indeed quite the opposite reason. He referred Nicol J to the updated note on the position of neutrality as the Claimant’s position had moved following the hearing on the 18th of March and what was detailed in open court.

David Sherborne referred to the entirely unrelated disclosure of medical records and referred to a public note and attachment and the salacious and gratuitous allegations made in open court against Mr Depp which were picked up by the media and reported on. Examples were in the attachment of the widespread reporting the next day by the Daily Mirror and Daily Mail which were still available online.

The reason for the application was David Sherborne argued an exceptional one. What Ms Heard had said she had read on social media was extremely distressing if it was correct and a derogation was sought, but why did she allow it to be referred to at a previous open hearing? Why was it necessary for open justice to be overridden regarding the remaining allegations of sexual violence to be heard in private and was this the proper administration of justice?

David Sherborne stated that it was important to do this in the context that Ms Heard was no ordinary witness, she was the individual who had made allegations in public in 2016 that she was a victim not just of physical abuse but of sexual violence and promoted herself as an activist which included when she spoke to the UN [United Nations] General Assembly in 2019 and she was associated with the #metoo movement.

Mr Sherborne referred to a Washington Post opinion piece in December that had referred to the impact and that in the Washington Post opinion piece that she had stated she was standing up against sexual violence and having made allegations public she had been faced with culture’s wrath. He quoted from the article, “women who come forward to talk about violence receive more support”, when that was considered in the factors there was the distinct impression that the Defendants were seeking to use the sexual violence as a sword but with a cloak of secrecy but this was not advantageous. The derogations were from a cornerstone principle and impacted on Johnny Depp’s ability to conduct the trial if such matters would all be in private.

What had happened now was part of them had deliberately been put in open court and aired and repeated, so Mr Depp was in the worst position as the allegations had been made in public but details would be behind closed doors which the Claimant aimed to prove were outright lies in private – therefore the application needed to be carefully scrutinised. Ms Heard was a self-styled spokesperson for those who had suffered sexual violence.

Her very public stance and the deliberate reference on the 18th of March to acts of sexual violence pointed to whether it was strictly necessary. It was important to point out that when the substance had been widely reported there had been publication in which Mr Depp had been unable to properly defend himself against the allegations.

It was stated that the part in private would be for a very short time indeed, but it wasn’t accepted that that was necessarily the case as although the evidence may be heard in a relatively short time, the cross-examination might be particularly lengthy as to the sheer implausibility of the accounts and inconsistency, as well as why it had taken to now to make the allegations and how consistent it was with what had been said on other occasions.

Turning to the hearsay evidence of Ms Sexton, if it was granted and some allegations were not accepted it was not be for a short time or for a limited incursion.

The final points were it had not been a trial where some had been in public and some in private as anonymity had not been sought, Mr Depp had been set up in the most public way possible and David Sherborne stated that we say her allegations of sexual violence are nonsense and that she was the violent one but has promoted herself as a sufferer of sexual violence.

Nicol J stated that he had made that point and that he understood the point about the public statements of Ms Heard, he had got that already.

David Sherborne continued that even if it was granted, the privacy should be reviewed in light of the facts and it may be appropriate to record in the judgement whether she gave false evidence.

Nicol J stated that it would be common for any order of this nature to be subject to any further order that was wished to be made or chose to be made and there would be a qualification in those terms to accommodate that point.

David Sherborne agreed that it would.

Nicol J asked if he had anything else to say in the public part?

David Sherborne responded, “No”.

Nicol J stated that he was having to adapt procedures and he had said an advantage was gained by dealing with the public part of the hearing in one go. He didn’t know if in the public part Adam Wolanski QC wanted to say anything in reply to David Sherborne or whether this was too much a departure from the customary way that all submissions were made and then replied to comprehensively.

Adam Wolanski QC stated that he would reply very briefly to a couple of points. In summary he was not sure if David Sherborne’s client [Mr Depp] was still neutral and if so it was not apparent from his submissions. David Sherborne had said that Ms Heard wanted it publically tried, but it was made clear that was not her case and Sherborne’s assertion was not supported by the evidence before the Court. It was accepted that it had been ventilated in Court but nowhere was it said she wanted it tried at all let alone publically. David Sherborne had stated that his client would be prejudiced but Adam Wolanski QC struggled to understand this as there would be no curtailment of a cross examination of Ms Depp.

Nicol J stated that it was a mistake to refer to her as Ms Depp.

Adam Wolanski QC apologised and corrected it to Ms Heard. There would be no curtailment of cross-examination at all.

Nicol J stated that so far as Ms Heard had made her accusations or allegations in public, that Adam Wolanski QC would accept so far as those allegations were concerned Mr Depp could also deal with those in public.

Adam Wolanski QC replied absolutely. The matters from 18th of March in the public pleadings were available to public inspection and there was nothing which was private about matters or of a confidential nature. This was not the point that they sought that they were made private or asked for such an order as they had always been a public part of the case.

Adam Wolanski QC would look at the more overarching point which appeared to amount to an assertion that there was no difference. The confidentiality orders were on sensitive matters and his submission was that there was a world of difference.

Nicol J stated that Adam Wolanski QC had asked for the remainder to be conducted in private.

David Sherborne stated that it was inevitable that the remainder of the hearing must take place in private and it was well understood that the courts couldn’t operate in public if that process would deprive the party in question of the very protection that was sought by the application.

Nicol J asked if David Sherborne wanted to say any more?

David Sherborne answered, “No”.

Nicol J stated that the remainder of the hearing would take place in private. He asked Amy [Baker] for her assistance in how to achieve that.

Amy Baker asked all members of the press to hang up from the video hearing.

The application hearing continued in private.


After the earlier hearing had finished, a new video hearing on the same day in the same case and also on the matter of the application started to hear Nicol J’s decision in public at 2.32 pm.


Mr Justice Nicol welcomed Adam Wolanski QC and Mr David Sherborne to the hearing. He was going to start his judgement in public, if that was alright?

The trial of the libel action was due to start, the application was for part of it to take place in private and the associated orders. It had originally been scheduled to be decided at a pre-trial review in February but there had not been time then to hear arguments.

Notice of the hearing had been distributed to the media through the Press Injunctions Alert Service. The Defendants had been prepared to give access to the confidential schedules if an undertaking was given. One had taken this up, but having done so decided not to oppose the application.

The hearing had begun in public via Skype, Nicol J had acceded to the application to continue in private as he agreed that a partially private hearing was necessary in the interests of justice, it would commence as a public judgement but would have to continue in private.

The starting rule was that it was in public (see Civil Procedure Rule 39.2(1)). The public were free to attend and the media was free to report what took place. It was clear the courts did have the power to sit in private as stated in Civil Procedure Rule 39.2(3). Civil Procedure Rule 39.2(3)(g) gave a reason as the Court considered it necessary to be in the interest of justice.

Nicol J stated that Adam Wolanski QC submitted that this was a case where it was in the interests of justice for part of the trial to be heard in private but accepted an order would only be made if there was a compelling case for it.

Such an order should only be the minimum necessary to achieve the ends of justice. Nicol J stated that Adam Wolanski QC stated that he submitted that the test was satisfied.

Primarily, Miss Heard had been the wife of the Claimant Mr Depp and she had not brought the libel action, nor was she a Defendant, she was only a witness.

As Lord Woolf in the Queen against Legal Aid Board [1999] QB 966 at paragraph 8 stated,

“A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.”
 

Nicol J continued that Adam Wolanski QC had stated regarding the rights of Miss Heard, she had a right to respect of her private life (article 8) and he had also referred to the Human Rights Act 1998, section 6. Adam Wolanski QC had drawn attention to the nature of the material and the impact Ms Heard stated it has on her, if Nicol J had to give a judgement in public in the usual way he could say more about this in a private part of the judgement.

Nicol J also referred to Adam Wolanski QC pointing out the circumstances in the Supreme Court case Khuja vs Times Newspaper Limited [[2017] UKSC 49].

Nicol J mentioned the earlier Claimant’s [Mr Depp’s] position which was described as neutral, but he was not sure if that description remained appropriate in view of the submissions by David Sherborne for the Claimant [Mr Depp] that morning.

A departure from open justice should be sought only if strictly necessary in the circumstances. It had been submitted that it had been wrong to regard her as a mere witness as she was a principal witness for the Defendants as their case was that the libel published was substantially true but the case rested on evidence which was vigorously contested by the Defendants.

She [Ms Heard] was the Defendant in defamation proceedings in the State of Virginia in the United States of America brought by Mr Depp. It had been observed that Adam Wolanski QC had submitted that morning that the outcome of the English action may affect the course of the United States proceedings, even if that was somewhat optimistic given the difference in legal regimes but it served to emphasise that Ms Heard was not simply a witness.

Nicol J continued with part two. There were allegations in public which included allegations of sexual violence and these had been repeated by Adam Wolanski QC on the 18th of March 2020, picked up and reported by the media and she [Ms Heard] was locally identified with the #metoo movement. An article in the Washington Post had led to the defamation action against her in the United States of America.

The Claimant [Mr Depp] should not be disadvantaged by the arrangements for the trial.

Nothing prejudged the issues at trial which would be conducted fairly for both sides and neither would be disadvantaged by it being part in private.

There would be a full opportunity so far as was proper to challenge the evidence of Ms Heard by cross-examination which it was agreed would be dealt with in private as it was a different order to what had been made public so far. To treat it differently would not be a proportionate interference with her rights if it was insisted that she gave evidence in public.

Nicol J also agreed with Adam Wolanski QC that it was right to make the orders sought. It was not suggested that Ms Heard was otherwise unwilling to give evidence at all for the purpose of these proceedings, she was a witness not a party to them. The litigation between her and Mr Depp was in the United States of America.

Nicol J looked to the professionals to be sensitive regarding all parts of the trial in private. He hoped that the need to switch between public and private would be kept to a minimum.

Consequential orders were also proportionate and necessary to limit access to the confidential schedules and there would also be an order prohibiting publication of what was in private under the Contempt of Court Act 1981.

Those who were present must not disclose information.

The Claimant [Mr Depp] wanted the opportunity for the need to privacy to be reviewed in light of the judgement at the end of the case. Nicol J did not dispute that any order would be subject to any further orders of the Court to allow the possibility of such a review, but it was not a mandate for such a review.

That was what Nicol J could say in public, the remainder of the judgement would have to be in private. Nicol J asked those who were not parties to the case or lawyers to parties in the case now to leave and Nicol J was going to ask his clerk Amy Baker to review who was present on the Skype call.

The public part of the hearing ended at 2:51 pm.


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