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
By John Brace (Editor)
and
Leonora Brace (Co-Editor)
Please note that comments are turned off due to the ongoing nature of this case.
Thanks to Autumn on Venus for pointing out this application notice hearing was taking place.
Updated 18.5.2020 – The decision on this was handed down on the 18th May 2020 and can be read at [2020] EWHC 1237 (QB).
There are other pieces on this blog about other hearings in the same case (see list directly below with links, headlines and dates).
The below is a report on a public hearing held on the 13th May 2020 which started at just after 10.30 am (due to a delay in barrister David Sherborne for the Claimant joining the video hearing) in the High Court of Justice (Queen’s Bench Division) before the Hon. Mr Justice Nicol.
A decision on the application notice is expected to be handed down at 10.00 am on the 18th May 2020.
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”)).
Sasha Wass QC and Adam Wolanski QC (instructed by Simons Muirhead & Burton LLP) was for the Defendants (News Group Newspapers Limited and Dan Wootton).
The video hearing was being recorded and there were a total of twenty-four people watching.
Nicol J informed those present that it was a public hearing and people were free to dial in and link into the call.
David Sherborne (for the Claimant Johnny Depp) explained that it was a directions hearing that had been listed by the court for Friday 20th March, which had been the last working day before the trial that had been due to start on the 23rd of March. He said that His Lordship had adjourned the trial and it had been right to adjourn because of the impossibilities of conducting a trial starting on the 20th March and the serious health risks. He said that the trial had been refixed for the 7th July 2020 with a timetable of (*the number was unclear*) days.
David Sherborne said one of the items on the agenda for His Lordship who had seen the draft timetable which would assist when considering the first item which was the trial timetabling. He [David Sherborne] said it remained unclear what the court system would look like in 8 weeks from now but it was set out in the skeleton argument.
Nicol J stated that he had had quite a lot of documentation and asked which skeleton argument?
David Sherborne answered that it was the one received yesterday at 9.00 o’clock. It was the skeleton in support of the three items which included trial timetabling and an application for permission to rely on 4 witness statements including Winona Ryder. The skeleton had been served at 9.00 o’clock. The defendants had indicated they wished to rely on the trial skeleton argument for the trial originally due to start on the 20th March. In addition to that there was the electronic bundle for today’s [13th May 2020] hearing, the witness statements and the two further documents that were not in the electronic bundle. David Sherborne also referred to Mr Depp’s witness statement.
Nicol J asked if it was the second one?
David Sherborne stated that the first one made was a procedural one but he would give a little bit of the chronology. He said that the witness statements had been exchanged before Christmas last year [2019] and the third witness statement of Amber Heard had arrived on the morning of the pre-trial review. Both were relevant to permission to adduce the four witness statements but there may be documents that “Your Lordship” had that he [David Sherborne[ hadn’t seen.
Nicol J asked him to just hold on a minute.
David Sherborne replied, “of course”.
Nicol J said he was just looking, he did have the skeleton argument for the hearing today [13th May 2020] and the application notice?
David Sherborne replied that that would be yesterday’s application notice.
Nicol J said that as he understood the Defendants didn’t object to it [the application notice].
David Sherborne pointed out that it may have arrived separately to the bundle.
Nicol J asked David Sherborne what he saw as the matter to be dealt with this morning [13th May 2020]?
David Sherborne answered the trial timetable and directions for trial.
Nicol J asked if it was sensible to deal with before the application to adduce evidence?
David Sherborne replied that it depended on Nicol J’s view. Some things were clear. He said what was clear about the trial was that it was still 8 weeks away which was relevant to the question to allow in further witness statements. The trial was scheduled for 15 days. As well as showing how the structure might look and considering a video link for evidence there was going to be a large number of witnesses. The majority of witnesses lived or worked in Los Angeles.
David Sherborne talked about how evidence would be given whether over video link or in person and what the state of play was going to be 8 weeks from now [13th May 2020]. Travel restrictions and so on were entirely a matter for the Court. Various things had been suggested as far as to make it more practical such as a larger courtroom to reflect the reality of the case and the large number of people involved and the considerable interest from the public. A larger courtroom would allow social distancing and also a separate courtroom where it would be shown by video link on CCTV. He hoped these were helpful. He suggested a number of matters that may be taken into account so it could happen in the most effective way. Albeit he was looking 8 weeks in the future, that was item 1 to some extent answered by dealing with it but he said there may be more specific items Your Lordship may wish to explore, but for the moment that was item 1.
Nicol J said that before he moved on, he had inquired about whether a second courtroom would be made available to allow social distancing and the projection of CCTV and this was still being progressed so it may be possible. He said that it goes without saying that any arrangements would need to observe the government’s restrictions on social distancing.
David Sherborne replied that that was what they expected.
Nicol J stated that these were his provisional views, but his views may change over the 8 weeks that elapsed before the trial.
David Sherborne replied that one of the advantages of having this so much earlier as it was 8 weeks now and the start of the trial was in 8 weeks, was for anything arising about the application and time for the court system to return to normality. It was up to Your Lordship as to how far down that road and the issue had been considered before. Hopefully it was not more than an issue with regards to restriction on travel for Johnny Depp and Miss Amber Heard to give evidence. The restrictions between here [UK] and France were less stringent.
Nicol J asked if Mr Johnny Depp was in France now?
David Sherborne replied that as he understood it he was.
Nicol J asked on this part was it Adam Wolanski QC or Sasha Wass QC for the defendants?
Sasha Wass QC answered that it was almost all herself except for Adam Wolanski QC at the end.
Nicol J asked if it was still wished to call Miss Amber Heard in person?
Sasha Wass QC said that there may be a requirement for quarantine before she was released, but Miss Amber Heard was prepared to go through that. The intention was that Miss Amber Heard would be here [UK] well in advance. Sasha Wass QC stated that her name was pronounced Wass not Was.
Continuing she said that Miss Amber Heard had been contacted recently and was very keen to attend in person but it was subject to unknowns.
Nicol J thanked her. He said that as he had said on a previous occasion it was important if possible, if the two principal witnesses Mr Johnny Depp and Miss Amber Heard could give live evidence in the usual way. Nicol J said it was important in equality in terms of the parties. For giving evidence the ability of both of them to give evidence in the traditional fashion was important. The possible ability to give evidence of them both was contingent on the other giving live evidence as well.
Sasha Wass QC gave an observation about that and the issue of equality of arms. She said that a live witness had the same advantages as a witness on a video link and it was a novel suggestion that a witness was at any disadvantage. Continuing, she said that in the criminal courts vulnerable witnesses routinely gave evidence through a video link and there was never any suggestion of an advantage or disadvantage of availing of special measures. She felt it was troubling that Nicol J has used the phrase equality of arms for both witnesses giving evidence in the well rehearsed manner in the court arena.
If Miss Amber Heard was unable to leave Los Angeles in June this would mean it was likely to say that Johnny Depp would not give evidence live, which she found curious. She would be grateful of clarity from the Court and asked if David Sherborne felt the same?
David Sherborne replied that the reason why it didn’t get made clear throughout, was that it was the first time he had heard that it was considered that Miss Amber Heard would not be appearing in person.
He said that there had never been an application for video evidence. The accounts were diametrically opposed on the allegations which took place when nobody else was around, so credibility was key. He said it was very important that there should be parity and both [Miss Amber Heard and Johnny Depp] give evidence and it was important they they were both [Miss Amber Heard and Johnny Depp] here [UK]. He referred to a statement [of Nicol J] and guidance as to what factors were important and how the trial should take place. Johnny Depp had always said he wanted to be there and that was what he understood of Miss Amber Heard too. David Sherborne wasn’t trying to gain favour [with Nicol J] but he was saying that he didn’t think Your Lordship was unambiguous and it did not preclude a further step if the situation was impossible.
Nicol J said that it seemed to him there was a danger of being diverted into hypotheticals and there was enough to deal with with the actuality. Both Miss Amber Heard and Mr Johnny Depp would do everything possible to be present to give live evidence. As long as that remained the position it was not necessary.
Sasha Wass QC said she was happy to move on.
Nicol J asked where from here?
David Sherborne replied that that was item 1, which he may return to if necessary. Item 2 was the application for permission to call 4 witnesses which had been signalled 8 weeks or more ago. The 4 witnesses were Miss Vanessa Paradis, Miss Winona Ryder, (*unclear*) and Miss Kate James. He said that shortly before the hearing there had been a climb down [by the Defendants] on Miss Winona Ryder and Miss Vanessa Paradis. He said the Defendants were objecting to the witness statements root and branch, but that left two. David Sherborne said that the third item was two short statements and hearsay notices which had been consented to therefore no longer formed part of what was to be considered [today (13th May 2020)]. However he said there may be some consequential matters from the email from Adam Wolanski QC to Nicol J’s clerk. He said that there may not be a lot more on item 1 and he would get to item 2.
David Sherborne started with the background to Mr David Killackey and Miss Kate James. He explained the history of the UK libel case in 2018 and the original defence plea of justification which had been shorter. As shown at the pre-trial review there were two alleged incidents. Since July 2018 there had been amendments to include more alleged incidents and it was important to explain the relevance of Mr David Killackey and Miss Kate James. The re-amended defence and third witness statement of Miss Amber Heard had been received on the morning of the pre-trial review. There had been iterations of the defence, but what had become clear was set out in the detail of the skeleton argument which was relevant to the evidence of Miss Vanessa Paradis. He said that the allegations were very general but were denied root and branch and Johnny Depp denied ever hitting any woman. He [David Sherborne] moved on to the point at which the defendants amended their defence…
Nicol J asked him for just a minute please.
David Sherborne replied, “Sure”.
Nicol J asked where the amended defence was?
David Sherborne replied it was at tab 11. He wanted to take take Nicol J quickly as it was relevant to Miss Vanessa Paradis and Miss Winona Ryder and the reason he said was too look at paragraph 8a on page 142.
Nicol J asked if he had said 142?
David Sherborne said that on his page numbers it started on 141.
Nicol J apologised.
David Sherborne stated that he had it in hard copy form, but yes it was 8a.
Nicol J asked for the precise paragraph number.
David Sherborne stated he thought it was 146 he was told of the electronic bundle.
Nicol J confirmed that was the part that started the Claimant and Miss Heard started living together in 2012?
David Sherborne replied that they were engaged, then married in 2015, but separated in May 2016. He said that the defendants said that throughout the relationship, their words were that the Claimant was physically and verbally abusive but added in March that the Claimant was controlling and physically and verbally abusive particularly when under the influence of alcohol and drugs. David Sherborne said that this was a portrayal that Mr Johnny Depp denied.
David Sherborne said that the way Miss Amber Heard sought to portray the relationship in words such as “controlling, abusive” which had been picked up by the witnesses was set out in the skeleton, but Your Lordship was faced with two opposing accounts. David Sherborne said first was Ms Amber Heard’s account that the defendants have to prove, that Mr Depp resorted to domestic violence and was abusive and how they had chosen to give evidence in the 3rd witness statement where it continued this. David Sherborne continued that Mr [Johnny] Depp’s position was that this was completely untrue and David Sherborne said that as to why the Claimant relied on Miss Vanessa Paradis who stated that Mr Johnny Depp had not been physically violent to her [Miss Vanessa Paradis] or any other woman.
David Sherborne continued with the suggestion of being controlling and abusive and David Sherborne made it clear that Miss [Amber] Heard denied being abusive, aggressive or controlling despite the transcripts and so on. David Sherborne said it would be for Your Lordship to have to determine which account is correct. He said that Mr Depp and witnesses he wished to rely on which were entirely the opposite about what their [Johnny Depp/Amber Heard] relationship was like was setting the scene for the evidence of Miss [Kate] James and [Mr David] Killackey in the way in which the defendants through Miss [Amber] Heard had sought to advance their case. David Sherborne said it was not simply here 14 incidents of physical assault but much more wide-ranging about the relationship and nature of the man. He asked to turn to the statements and specifically [Mr David] Killackey’s witness statement at tab 23 starting at page 383.
Nicol J commented, “just a minute”.
David Sherborne asked if Your Lordship had it?
Nicol J answered, “yep”.
David Sherborne said that Mr [David] Killackey was a mechanic that was working for the Claimant [Johnny Depp] and Miss [Amber] Heard.
Nicol J asked what does he [Mr David Killackey] say that is relevant?
David Sherborne said that he [Mr David Killackey] described her [Miss Amber Heard’s] animus towards him.
Nicol J asked how did it have a bearing on what he had to decide?
David Sherborne answered about the events described by Mr David Killackey with a quote from what Miss Amber Heard had said to Mr David Killackey about Johnny Depp and Miss Amber Heard’s reaction which was not just towards Mr David Killackey.
Nicol J asked what the relevance was?
David Sherborne referred to Miss Amber Heard. He commented why hadn’t [Miss Amber Heard] not complained about physical assaults? Was she so controlled by Mr [Johnny] Depp and that [Miss Amber Heard] tried to give an account of totally controlled, intimidated and overborne by an aggressive man that [Miss Amber Heard] was going along with to protect him [Johnny Depp]. David Sherborne said that this was not the action of someone controlled or intimidated and that [Miss Amber Heard] was abusive when something happened that [Miss Amber Heard] didn’t like.
Nicol J asked, “When?”
David Sherborne gave paragraph 14 as one example.
Nicol J replied.
David Sherborne referred to she is talking about and asked if Your Lordship had it?
Nicol J replied, “I do”.
David Sherborne said that the team had been asked to do [work] relating to the car. He said she [Miss Amber Heard] had asked for her car to be released without payment. David Sherborne said that she [Miss Amber Heard] was asking for the car to be released by Mr [David] Killackey who was refusing to do so, having been given instructions by Mr [Johnny] Depp who instructed that it [the car] couldn’t be allowed to be released. However, David Sherborne said that Miss Amber Heard had not said fine, she wouldn’t do it but had responded in an abusive fashion – David Sherborne said that this was because she [Miss Amber Heard] was not controlled or intimidated by Mr [Johnny] Depp – see paragraph 12.
Nicol J asked for David Sherborne to let him [Nicol J] to get back to paragraph 12.
David Sherborne stated that it was inconsistent they said with how [Miss Amber] Heard said she was controlled. He said when there was abuse she did nothing to speak out, her behaviour [Miss Amber Heard] was inconsistent and that if she [Miss Amber Heard] had said on 14 or 2 times he [Johnny Depp] had physically assaulted her it was obviously not relevant, but she had not confined herself to this and portrayed herself as a controlled victim of domestic abuse and stated that what always happened when the relationship is talked about is that she [Miss Amber Heard] gets attacked for doing so.
Nicol J asked for just a minute.
David Sherborne gave the example in paragraph 9 in particular and again stated that these were not the actions they said of somebody who had been intimidated and controlled by the relationship. He said that they understood that [Mr David] Killackey was not at the heart of the defendant’s case and that it was all well and good saying that he would wouldn’t he? He said he [Johnny Depp] is entitled as Ms [Amber] Heard is to call close friends and that he [Johnny Depp] was entitled to call evidence to counter this portrayal. David Sherborne said that Nicol J was the Trial Judge so it was a matter for Nicol J as to the weight he [Nicol J] gave it but at this stage he was asked whether to admit it.
Nicol J asked to move to [Miss] Kate James?
David Sherborne replied.
Nicol J asked him [David Sherborne] to remind him where?
David Sherborne answered at tab 22 which started on page 361. Miss [Kate] James was her [Miss Amber Heard’s] personal assistant in the early years of her [Miss Amber Heard’s] relationship with the Claimant [Johnny Depp] and that was what the relevance was. He said she [Miss Kate James] dealt with three categories but in the context of explaining her employment with Miss [Amber] Heard.
David Sherborne said about Miss Kate James wrapping Christmas presents for Miss Amber Heard.
He [David Sherborne] said the three categories were she [Miss Kate James] saw [Miss Amber] Heard on a day to day basis both dressed and undressed. He said that [Miss Kate James] had never seen a single injury which contradicted one other witness who said that the witness saw visible injuries so it couldn’t possibly be irrelevant as [Miss Kate James] saw her [Miss Amber Heard] day in and day out in various states of undress trying on clothes and [Miss Amber] Heard had said there were visible injuries on her [Miss Amber Heard’s] face.
David Sherborne said that the second category that [Miss Kate James] said she witnessed was the nature of the relationship between [Miss Amber] Heard and [Johnny] Depp, which undermined [Miss Amber] Heard but supported [Johnny] Depp’s account.
David Sherborne said the third category was Miss [Amber] Heard’s drug and alcohol abuse as in the third witness statement there was evidence about very limited intake of alcohol and drugs. He [David Sherborne] said that she [Miss Kate James] gave first hand evidence which one could simply not say was irrelevant.
David Sherborne said the fourth category was the circumstances that [Miss Kate James] was prevailed upon by Ms [Amber] Heard to lie such as the Australian dog episode. David Sherborne said that in witness evidence [Miss Amber Heard] had sought to procure Miss [Kate] James to lie about the dogs in the context of criminal proceedings.
He [David Sherborne] continued that there was also the lie that Miss [Kate] James was aware of as she had been brought in by Miss [Amber] Heard regarding a letter to the Department of Homeland Security which falsely claimed that one of Miss [Amber] Heard’s employees was just a friend.
In David Sherborne’s opinion, this was a pattern of procuring people to lie to court and other legal authorities and he asked to consider at the start of trial to consider Mr Murphy’s evidence.
If David Sherborne started with Miss [Kate] James’ evidence and not all the detail it showed a pattern but it was necessary from paragraph 5 onwards to explain her employment. David Sherborne said that [Miss Amber] Heard’s account was that Mr [Johnny] Depp was controlling, but that Miss [Kate] James said he [Mr Johnny Depp] was passive, innocent and never abusive. David Sherborne said that when [Miss Kate James] had started working for Ms [Amber] Heard before she said who [Johnny Depp] was she [Amber Heard] was disparaging. David Sherborne said that it lay right at the heart of the defendants’ case as the first impression of [Johnny] Depp was how softly spoken and peaceful he [Johnny Depp] was.
David Sherborne said that Miss Kate James had been asked to deal with various matters to do with Miss [Amber] Heard that aren’t right at the heart of it but do explain the background to the relationship. He [David Sherborne] said that it wasn’t a jury trial with regard to background and matters. He [David Sherborne] said that the way the relationship with Mr [Johnny] Depp they said was relevant but not as relevant.
Nicol J pointed out that paragraph 7 dealt with the redesign of Ms [Amber] Heard’s duplex apartment?
David Sherborne answered that was the background set out.
Nicol J asked what had that got to do with anything?
David Sherborne referred to a part of Miss [Kate James’] witness statement [as to Kate James’ reasons for the redesign by Amber Heard as she Amber Heard] got closer and closer to Johnny Depp and changed into someone more appropriate which was the same in Johnny Depp’s witness statement.
Nicol J said it hadn’t been sought to strike out your [the Claimant’s] application for evidence to be admitted.
David Sherborne said that [Johnny] Depp felt manipulated by Miss [Amber] Heard and that Nicol J needed to decide who was the correct one. David Sherborne said that we said Mr [Johnny] Depp, but that Nicol J was going to have to decide. David Sherborne made a further comment about evidence, but followed by that he appreciated it was not right at the heart of it, but it still gave Your Lordship an account opposite to what Ms [Amber] Heard gives.
Nicol J replied, “Yeah”.
David Sherborne said it was how she [Miss Kate James] observed the relationship. He said [Miss Kate James] had seen [Miss Amber] Heard for nearly every day for 3 years and never once [seen] bruising. David Sherborne said that Miss Kate James would often see [Miss Amber] Heard naked or semi-naked at fittings and was around her [Miss Amber Heard] a lot which countered the evidence [Miss Amber] Heard or her sister gave. David Sherborne said that the evidence that countered that was at paragraph 24 on page 368, how she [Miss Kate James] observed Mr [Johnny] Depp, then paragraph 25 dealt with the [Department of] Homeland Security…
Nicol J asked if this was the [Department of] Homeland Security letter of September 2014?
David Sherborne answered by saying that [Amber Heard] had hired Savannah McMillan.
Nicol J asked if it was Savannah or Samantha?
Sasha Wass QC said it was two different people as there were two McMillans.
David Sherborne agreed and pointed to that it could be seen in the exhibit.
Nicol J said he hadn’t looked at the exhibit and where was the exhibit?
David Sherborne answered that it should be right behind her statement?
Nicol J answered, “Yeah” then asked what page on the bundle was the letter about the [Department of] Homeland Security?
David Sherborne answered, “page 375”.
Nicol J asked for just a moment. Nicol J said that this was the document dated he thought September 16th 2014?
David Sherborne answered yes, followed by sorry now they say December 16th.
Nicol J said he thought it might be 2012.
David Sherborne said he was not sure what Nicol J was looking at and apologised.
Nicol J quoted, “My name is Amber Heard. I’m a proud American citizen, I’m writing this letter..”
David Sherborne commented.
Nicol J stated that he couldn’t see very clearly and was going to enlarge it.
David Sherborne made a comment about seeing the right document.
Nicol J repeated, “My name is Amber Heard.”
David Sherborne mentioned a fraudulent report, said she [Miss Amber Heard] had made a false claim without any proof or corroboration. He [David Sherborne] went on to refer to the regret of the friend, what was written to the [Department of] Homeland Security and the check written to Savannah McMillan by Ms [Amber] Heard.
Nicol J said this was dated 5th September 2014 for US$1,625 dollars.
David Sherborne said, “yes”.
Nicol J said just a minute, followed by yes and then back to Miss [Amber] Heard.
David Sherborne said that [Miss Kate James] was asked to send a letter to the [Department of] Homeland Security.
Nicol J said something.
David Sherborne answered, “tab 22” and referred to page 368.
Nicol J said “just a moment”, paragraph?
David Sherborne said paragraph 25 was where it started.
Nicol J said “just a moment” followed by “yeah”.
David Sherborne then referred to paragraph 26 and what Miss [Kate] James said was quotes from the letter she [Miss Kate James] had been asked to send. David Sherborne stated unequivocally it was untrue, but it went on record to the [Department of] Homeland Security. David Sherborne said that it was a deliberate lie to U.S. [Citizenship and] Immigration [Services (USCIS)] which is why [Miss Kate James] took a photo of the check.
David Sherborne said that [Savannah McMillan] was working as an assistant, but she [Savannah McMillan] was a British citizen on a tourist visa and Ms [Amber] Heard knew it. David Sherborne said it involved Miss [Kate] James exactly the same as the Australian dogs episode. David Sherborne referred to objection to Murphy’s evidence and disclosure of emails sent to a lawyer asking for advice as to whether [Amber Heard] could get Miss [Kate] James to lie on [Amber Heard’s] behalf.
Nicol J asked if that was in Murphy’s statement?
David Sherborne referred to paragraph 33 and how it was found that Miss [Amber Heard] was a bully and controlling. David Sherborne appreciated it was not at the heart, and Nicol J may take the view to either consider it briefly or that it would not assist but that in a number of categories Miss [Kate] James’ evidence was connected to the way the defendants had advanced their case.
David Sherborne referred to the account of being controlling was untrue and [Johnny] Depp was right when he said very abusive and as Mr [Johnny] Depp said [Amber Heard] had started trying to ingratiate herself [Amber Heard] with him [Johnny Depp] which Miss [Amber] Heard denied, another category was the injuries.
Nicol J stated it was listed already.
David Sherborne said he was summarising.
Nicol J said he [David Sherborne] was repeating his previous submissions which was not helpful.
David Sherborne said about the use of alcohol and drugs and lying to the authorities. He [David Sherborne] said he had missed one point on Mr [David] Killackey and a specific incident and he took Nicol J to Miss [Amber] Heard’s witness statement.
Nicol J asked, “3rd?”
David Sherborne answered, “1st”.
Nicol J said, “tab 19”.
David Sherborne said, “page 216”, in Your Lordship’s bundle, sorry that was where it started, on page 220 was where it should be, did Your Lordship have that?
Nicol J asked, “which paragraph?”
David Sherborne answered, “paragraph 31 in particular” which should explain what it was.
Nicol J said “just a moment” followed by “paragraph 31”.
David Sherborne said just go back to paragraph 22 to show the rubric at page 217.
Nicol J said “just a minute”.
David Sherborne asked if Your Lordship had it?
Nicol J replied that he had paragraph 22.
David Sherborne said that was how she portrayed the relationship and how she described increasingly controlling behavioural examples and described examples of controlling behaviour which David Sherborne would come back to when the objections were dealt with at the start of the trial.
Nicol J said to let’s go back to 30/31.
David Sherborne said that Your Lordship sees the context.
Nicol J said just a moment, paragraph 31 referred to Mr [Johnny] Depp taking the Mustang as a gift and she [Amber Heard] didn’t have a car for the next three and a half years and one of the ways that [Johnny Depp] knew about where she [Amber Heard] was which was one of the examples meant to support the allegations.
David Sherborne said it was a point he had forgotten to take as he was going to take Miss [Kate] James first, then go back to Mr [David] Killackey’s witness statement.
Nicol J asked which paragraph?
David Sherborne answered with a page number and a tab number. He [David Sherborne] said at paragraph 6 what he presumed Miss [Amber] Heard was referring to. David Sherborne said it was a gift to have it [the Mustang] souped up by Mr [David] Killackey and then what happened when [Amber Heard] comes down to the garage to see it and took the car away. David Sherborne said it was contrary to [Amber Heard] saying that [Johnny] Depp had kept it for 3 and a half years and that was how he [Johnny Depp] controlled me [Amber Heard]. David Sherborne said that in 2016 she [Amber Heard] brought the car back, to look at 11 about ringing up this and that, the car and so on.
Nicol J asked if David Sherborne had a date?
David Sherborne stated that it was 2 years later he took instructions but that it directly contradicted the evidence.
Nicol J said he was having trouble following this, the car was taken in 2014?
David Sherborne answered, “yes”.
Nicol J said in 2016 they were talking about paragraph 11.
David Sherborne said that work continued on the Mustang.
Nicol J asked how it contradicted that [Amber Heard] was without the car for 3 and a half years?
David Sherborne said about the conversation between Mr [David] Killackey
and [Miss Amber Heard] about the use of the hands free to make calls. He said Mr [David] Killackey told her she couldn’t have the car and was not allowed to drive it, she [Amber Heard] said she was the one in control of the car not him. David Sherborne said she [Amber Heard] was independently [of Johnny Depp] giving instructions.
Nicol J replied.
David Sherborne said about her [Amber Heard’s] response to Mr [David] Killackey.
Nicol J asked if David Sherborne had anything else to say in his application to admit those witness statements?
David Sherborne answered about Mr [David] Killackey but in relation to Miss Kate James it may give rise to satellite issues. He said the defendants had had the witness statements for at least 8 weeks with no submission to explain in detail how it was said to lead to uncontrollable issues. He [David Sherborne] said that there was 8 weeks between now and the trial if there was other material Miss [Amber] Heard could put in a statement if she could. David Sherborne said that the points made in the skeleton where when it was imminent and due to take place in days, as it is at least 8 weeks on and it was 8 weeks to trial it could not be said to be disruptive, that was all he [David Sherborne] needed to say, if Sasha Wass QC said anything in response he would deal with it by his [David Sherborne’s] reply.
Nicol J invited Sasha Wass QC to reply.
Sasha Wass QC said how important it was for the Court to get a grip on what was relevant. She [Sasha Wass QC] said none of the material touched on any of the pleaded incidents. She [Sasha Wass QC] described a witness as “tainted and tangential” and not having a bearing on the central issue, which was Mr [Johnny] Depp a wife beater or a man who indulged in domestic violence against his partner [Miss Amber Heard]?
Sasha Wass QC said that Mr [David] Killackey was a mechanic who dealt with a Mustang that belonged to Miss [Amber] Heard. She [Sasha Wass QC] said he [Mr [David] Killackey] was not able to give evidence of abusive [behaviour] or violent [behaviour] by [Johnny] Depp to Miss [Amber] Heard.
Sarah Wass QC said on three incidents [Mr David Killackey in his witness statement stated that] Miss [Amber] Heard had used aggressive, vulgar language and [used] inappropriate behaviour. Sarah Wass QC said that this suggested [earlier by David Sherborne] that if Miss [Amber Heard] was subjected to domestic violence then she [Miss Amber Heard] would be unable to raise her voice. Sasha Wass QC referred to evidence of conduct to third parties and said that two of the three incidents in June 2016 and December 2016 were after [Miss Amber Heard] had issued divorce proceedings and after the relationship was over. Sasha Wass QC said the sound system had no bearing on the issues in the case. She [Sasha Wass QC] said about what would have to be demonstrated by David Sherborne in cross-examination, the amount of court time that would be spent dealing with it and that once material was given that was contentious, is had to be contradicted particularly in parts. Sasha Wass QC then commented on the defendants’ position on acceptance of Miss [Kate] James’ case.
Nicol J asked to keep to anything else that Mr David Killackey said first?
Sasha Wass QC said it [Mr David Killackey’s witness statement] was tangential, irrelevant and couldn’t help.
Nicol J said that one of the points that was made that was inconsistent was that Miss [Amber] Heard was without her Mustang car for 3 and a half years.
Sasha Wass QC replied about [Miss Amber Heard] having the car in December 2016 and in the last paragraph a young man had turned up with cash.
Nicol J said to go back and said the dates were what?
Sasha Wass QC answered, “December 2016”.
Nicol J replied with a comment about the year.
Sasha Wass QC stated that it appeared a man had come to pay for the services to the car. Her [Sasha Wass QC’s] reading of it, was that the car had not been given back [to Miss Amber Heard] and he [Mr David Killackey] had it for the remaining time. Sasha Wass QC said to look at the June incident in paragraph 12 in June 2016 and how he [Mr David Killackey] asked Mr Murphy ([Johnny] Depp’s assistant) whether to bill Johnny [Depp] for the work on [Miss] Amber’s [Heard] Mustang and that [Mr David Killackey] obviously had the car at this time. Sasha Wass QC said it was known he [Mr David Killackey] was dealing with the car in 2014, but what was not clear from that statement was who had the car.
Sasha Wass QC said about the assertion that [Johnny] Depp took it upon himself for the Mustang to be remodelled appeared to be supported, but it was not clear at what stage the car was returned. Sasha Wass QC said it was as unclear as it could be and that she was happy to go on to [Miss] Kate James now.
Nicol J said to go back to Miss [Kate] James’ statement at tab 22.
Sasha Wass QC replied.
Nicol J asked which paragraph?
Sasha Wass QC answered to start at paragraph 36 right at the end, just the first sentence.
Nicol J read out a part about [Miss] Amber [Heard] fired me [Miss Kate James].
Sasha Wass QC said that as [Miss Kate James] was a disaffected former employee [of Miss Amber Heard] that it was tainted.
Nicol J said that was a matter for trial.
Sasha Wass QC said about evidence and proportionality. She [Sasha Wass QC] said that if animosity was trawled up, then the Court would be drawn into the mire of contradicted evidence that had no bearing, that did not preclude relevant evidence and on that point it did neither of those and she [Sasha Wass QC] had got her [Miss Kate James’ witness] statement in front of her [Sasha Wass QC].
Nicol J asked which paragraph?
Sasha Wass QC said about briefly skimming over.
Nicol J asked to turn back to paragraph 5.
Sasha Wass QC referred to the meat of the statement.
She [Sasha Wass QC] said why it was not relevant was at paragraph 6, the suggestion that [Miss] Amber [Heard] had referred to Mr [Johnny] Depp as an old man and also that she found Mr [Johnny] Depp to be rather… why this was irrelevant was it took the matter no further.
Sasha Wass QC said that the task of redesigning [Miss Amber] Heard’s duplex apartment was found to be bizarre but said with malevolence by a disaffected former employee. Sasha Wass QC stated that paragraph 8 talked about her [Miss Amber Heard’s] clothing style and mimicking Johnny [Depp]’s style but it was said in a way that was nasty and critical.
Sasha Wass QC said that it [the witness statement] then said at paragraph 9 that [Miss Amber] Heard had taken photos of herself with Ms [Kate] James’ son in order to send to Mr [Johnny] Depp to suggest a maternal character. Sasha Wass QC described this allegation of [Miss Amber] Heard as “disingenuous”.
Sasha Wass QC said that paragraph 10 suggested that [Miss Amber] Heard was seeking attention from paparazzi and asked Miss [Kate] James to buy magazines in which [Miss Amber] Heard appeared – this was irrelevant and spiteful and indicative of the quality of the witness [Miss Kate James].
She [Sasha Wass QC] said that paragraph 11 suggested that [Miss Amber] Heard had tried to get discounted designer clothing – which was generated by spite and there was the suggestion in paragraph 12 that [Miss Amber] Heard was controlling and paranoid. Sasha Wass QC would say no more about it than that.
Sasha Wass QC continued with the part where Miss Kate James suggested she had been treated badly as an employee and paid lower than the market rate – this was a slur to [Miss Amber] Heard’s character and entirely untrue.
Sasha Wass QC said that paragraph 14 suggested that Ms [Amber] Heard was verbally and mentally abusive. She [Sasha Wass QC] said it dovetails with Mr David Killackey and the suggestion of David Sherborne that any victim of domestic violence was never abusive. Sasha Wass QC said the relationship ended acrimoniously from the employment point of view but the suggestion was denied.
Sasha Wass QC stated that paragraph 15 dealt with drugs and alcohol and it was not denied that [Miss Amber Heard] was prescribed Provigil [Modafinil] for narcolepsy and that [Miss Amber Heard] did not deny she drank red wine. Sasha Wass QC stated that the recreational drugs were taken recreationally rather than as an addict which she stated Mr [Johnny] Depp was [an addict] and that Mr [Johnny] Depp had been treated for alcohol [abuse] over the years.
Sasha Wass QC also said that Miss [Kate] James had no medical qualification and that Doctor [David] Kipper gave the best quality evidence on the intake of drugs [compared to] the ideas that a part-time assistant [gave] who left under unpleasant circumstances, which was inappropriate. Sasha Wass QC said that [Miss Kate James] says she saw [Miss Amber Heard] each day but never saw violence by [Miss] Amber [Heard] or Johnny [Depp].
Nicol J said it was supportive of the Claimant’s position.
Sasha Wass QC referred to the wealth of other Mr [Johnny] Depp’s employees but she agreed with Nicol J over the fact it [the witness statement of Miss Kate James] said no injuries.
Nicol J said it [the witness statement of Miss Kate James] says no sign, which was supportive of the Claimant’s position.
Sasha Wass QC said something about what the witness had said in their statement and then said about photos of [Miss] Amber Heard’s injuries to face and arms as well as destruction to properties.
Nicol J said it was not helpful to rehearse the other evidence that the defendants rely on and that what he [Nicol J] had got to consider was whether to rely …
Sasha Wass QC said about whether it was proportionate to have so much contentious and malicious evidence.
Nicol J said just a minute, it may or may not be malicious but it’s not a helpful submission made at this stage and not something that to rely on in the decision on the present application.
Sasha Wass QC said that the source of the allegations and the weight or how serious and the type of witness they are, goes to whether the witness had a purpose to serve. Sarah Wass QC said she said she had got a purpose to serve when proportionality was considered and weighed in the balance.
She [Sarah Wass QC] said about paragraph 22 and the question of injuries described in paragraph 24, that [Johnny] Depp interacted very well with her [Miss Kate James’] son and the hearsay evidence that her [Miss Kate James’] son appeared not to like Miss [Amber] Heard – how could this possibly take the case further?
Sasha Wass QC said that domestic violence in the main was behind closed doors, those who saw the couple [Miss Amber Heard and Johnny Depp] [said they] seemed fine and didn’t know as generally speaking it [domestic violence] is hidden. Sasha Wass QC said that the observation that she [Miss Kate James] can make that her [Miss Kate James’s] son didn’t like [Johnny Depp] went way outside the ambit of what was relevant and that [they were] already burdened with the evidence of the pleaded issues. She [Sasha Wass QC] next took those present to the next two points in the statement on the [Department of] Homeland Security letter which was not pleaded and of limited if any…
Nicol J said she [Sasha Wass QC] said it was not pleaded and wouldn’t be pleaded but didn’t the issue go to the credibility of a witness on one side or another?
Sasha Wass QC described Miss [Amber] Heard as part and parcel of the [issue].
Nicol J said it was not something pled that the defendant’s witness was lying.
Sasha Wass QC said that [Johnny] Depp’s case was that Miss [Amber] Heard was a liar and a fantasist.
Nicol J said he was not sure there was anything to submit that it was significant that it was not pleaded that Miss [Amber] Heard was a liar.
Sasha Wass QC said she [Sasha Wass QC] had made the point now and that she [Sasha Wass QC] didn’t think repeating it was going to assist.
Nicol J replied, “OK”.
Sasha Wass QC said something about Savannah.
Nicol J asked about that proposition and the reason to be relevant was that it goes to Miss [Amber] Heard’s credibility, not that it was a fact in dispute in the broader sense.
Sasha Wass QC said it was like bad character evidence in the criminal sphere.
Nicol J said [Sasha Wass QC] had to be careful to carry over from the criminal context to a civil dispute.
Sasha Wass QC said she would put the criminal right out of mind. She [Sasha Wass QC] said it was not proven, it was a contentious issue. Sasha Wass QC said why, [because] it is satellite litigation but Sasha Wass QC accepted what was said. Sasha Wass QC referred to disputes heard and [Miss Kate] James’ and McMillans’ role as to whether Ms [Amber] Heard had fabricated or painted on bruises. Sasha Wass QC said their submission was not to take it further and it was the same with the Australian dogs incident. She [Sasha Wass QC] said [Miss Kate] James was a part of what was going on.
Sasha Wass QC said that [Miss Amber] Heard had pleaded a lot of documentation that had been disclosed and accepted that the dogs were not properly brought into the country [Australia]. Sasha Wass QC said that [Johnny] Depp had a part in that incident and hired a private jet to take the dogs back to Los Angeles. Sasha Wass QC said another piece of irrelevant material in which both [Johnny] Depp and [Amber] Heard were involved was one [dog was called] Pistol and the other [was called] Boo.
Sasha Wass QC said it had been resolved and [Johnny Depp] and [Amber] Heard had made a video apology to the people of Australia [see below].
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Sasha Wass QC said that whether Ms [Amber] Heard’s behaviour could be separated from Mr [Johnny] Depp and [another issue about an] abusive partner the defendants would question in Court – but [Nicol J] has a job to keep [the case] on the rails and getting [too] far away. Sasha Wass QC said dealing with the witnesses who said Ms [Amber] Heard is not a nice character and found it unpleasant or upsetting to work [with] Ms [Amber] Heard – [there were] lawyers involved and court involved on all sorts of aspects far removed [from the] article.
Sasha Wass QC said that was about all she wished to say. Sasha Wass QC said that the application for two witnesses by Mr [David] Sherbourne that if the chronology was looked at then the witness statements were originally ordered served by 16th December 2019.
Nicol J asked, “16th”?
Sasha Wass QC replied, “16, 1, 6”. Sasha Wass QC said at the pre-trial review on the 26th February before My Lord at the Royal Courts of Justice it had been ordered that any additional statements be served by 4 o’clock on the 4th March 2020.
Nicol J asked for just a minute as Sarah Wass QC was fading out.
Sasha Wass QC asked if Nicol J could hear now?
Nicol J said he could [hear Sasha Wass QC].
Sasha Wass QC said it was by 4 o’clock on 4th March 2020 at page 193 of the hearing bundle, the witness statements for [Mr David] Killackey and [Miss Kate] James were provided on the early hours of 7th March 2020 so were technically late.
Nicol J said well that’s true and that David Sherborne needed relief from sanctions in order to be permitted to do that, but there was a well-trodden route [Nicol J] had to go to as to whether to give relief from sanctions.
Sasha Wass QC referred to the Denton criteria [[2014] 1 WLR 3926] and how there had been no explanation as to why the fault had occurred [although there was] a time difference between [the UK and the] United States [of America].
Nicol J stated that the first question was the seriousness of the breach and whilst there had been a breach of the direction made on the 26th February, it couldn’t be said to be serious as the trial was still 8 weeks away.
Sasha Wass QC stated that they hadn’t dealt with disclosure so it may not be a problem for [Mr David] Killackey and (*unclear*) [but] may be for Miss [Winona] Ryder, now it was agreed it was admitted subject to My Lord.
Nicol J asked what the defendants’ position was, was Sasha Wass QC saying the breach was serious or not?
Sasha Wass QC replied that any flouting of a court order was.
Nicol J answered of course [Sasha Wass QC was] right, but as to seriousness in that regard it couldn’t answer the first Denton [[2014] 1 WLR 3926] criteria that was required.
Sasha Wass QC said that the question was a question of hours, rather than days or months, but no explanation as to why it occurred but the primary objection was one of proportionality, relevance and trial management.
Nicol J said [Sasha Wass QC] had made submissions. He said as to why it was not relevant, was it all or nothing, all or none of it or was there scope to consider paragraphs discretely?
Sasha Wass QC said on the face of that, [that was] a compromise. She [Sasha Wass QC] said the assertion was it showed Ms [Amber] Heard in an unattractive light and could be the subject of cross-examination in order to attack [Miss Kate] James’ credibility. Sasha Wass QC said if lying can be demonstrated, it would have to be demonstrated where it was said.
Sasha Wass QC said it demonstrated it was a partisan and difficult witness and where allegiances lie so parts couldn’t be cherry picked.
Nicol J answered no, it can’t be cherry picked.
Sasha Wass QC said that [the defendants] didn’t think [they] can consider whether there could be a compromise approach for four witnesses, hence the position to Tara Roberts who was served yesterday, very late and not just by a few hours. Sasha Wass QC said that Tara Roberts and Starling Jenkins [the defendants] accepted do go to the relevant issues whereas [Mr David] Killackey and [Miss Kate James don’t]. Sasha Wass QC was concerned it was simply derailing the trial.
Nicol J thanked her very much and asked if David Sherborne was still there?
David Sherborne replied, “I am, yes”.
Nicol J pointed out it was five to one and asked David Sherborne if he would prefer after lunch?
David Sherborne said he could start now but it would take longer than 5 minutes.
Nicol J said it would be better to resume at 2 o’clock.
David Sherborne replied he was grateful, thank you.
Nicol J said to Sarah Wass QC and David Sherborne that it would adjourn and now resume at two o’clock, whoever else was on the line Nicol J would terminate the hearing but resume at two o’clock.
The hearing was adjourned until two o’clock.
The hearing resumed after the lunch adjournment.
Nicol J said hello, do you have Miss [Sasha] Wass [QC] that I [Nicol J] can see and Mr [David] Sherbourne I can see?
Sasha Wass QC asked if she could raise one short matter.
David Sherborne said he thought Miss [Sasha] Wass [QC] wanted to raise one matter.
Sasha Wass QC said that [the defendants] had considered cherry picking regarding Miss [Kate] James and technically it would be possible to do so.
Nicol J said Miss [Sasha] Wass [QC] I think your microphone is muted.
Sasha Wass QC said can I find out why that’s happened, can My Lord hear me now?
Nicol J said he can now, Amy [Baker] can you hear you [Sasha Wass QC]?
Amy Baker replied that she could hear Nicol J and Miss [Sasha] Wass [QC].
Nicol J asked, “Amy?”
Sasha Wass QC said Amy, I think my solicitors can hear me and it might be his Lordship’s computer that might be causing the problem that might have arisen, could Mr [David Sherborne] hear her [Sasha Wass QC]?
David Sherborne answered, “I can”.
Sasha Wass QC said that it’s the Judge I’m afraid that has the problem.
Amy Baker replied, “OK”.
Nicol J asked can people hear me?
Sasha Wass QC said she could.
David Sherborne said he could hear Your Lordship.
Sasha Wass QC asked can My Lordship hear me?
Nicol J said he now could, could people hear him?
Sasha Wass QC said she could hear, could he hear her?
Nicol J said he couldn’t hear earlier from now.
Sasha Wass QC said she would repeat what she said when she raised a point about cherry-picking Miss [Kate] James’ evidence and the position put forward that it was not possible, the position is it is undesirable but technically it is possible to do and she hoped that clarified her position and for David Sherborne for allowing her to but in.
Nicol J asked if David Sherborne could hear him?
David Sherborne said he was grateful for the time over the short adjournment so he could focus and keep it as brief as he could.
David Sherborne’s starting point was the point of Miss [Sasha] Wass [QC] and the pleading point about [Mr David] Killackey and whether it had to consider the pleaded case. He [David Sherborne] said that the defendants amended their case at the beginning of March and inserted into their particulars of justification “controlling” and that Ms [Amber] Heard introduced 4 pages of which at least 10-11 paragraphs was about controlling behaviour on behalf of Mr [Johnny] Depp.
He [David Sherborne] said this included control by reference to the Mustang and the pleading point of Ms [Sasha] Wass QC took was not her best point, then another point was that to allow material gave rise to cross-examination which was not her best point because of that example said to be Mr [Johnny] Depp’s controlling behaviour on the car that Mr [David] Killackey dealt with that incident because [Miss Amber] Heard’s evidenece gave rise, but he could move quickly….
Nicol J said not to assume to move between documents quickly, to give Nicol J time and he’d do it.
David Sherborne said about [Miss Amber] Heard’s statement at tab 19, paragraph 31 on page 220.
Nicol J asked “paragraph 31?”
David Sherborne answered, “Yes”.
Nicol J said this was the paragraph beginning “he once took my car without asking me”.
David Sherborne said to explain her evidence what was put into witness statements that [the Claimant was] entitled to cross-examine. He [David Sherborne] said there was no dispute over that soup up for the overhauling programme. He [David Sherborne] said after the car was taken, it was harder to resist over time. David Sherborne said that the relevance of the example of the use of the car as a form of control but otherwise there was no significance of him [Johnny Depp] controlling her [Miss Amber Heard].
He [David Sherborne] referred to Mr [David] Killackey’s witness statement at tab 23, page 383 and where it started, it was probably best at page 386 which was paragraph 11.
Nicol J quoted from the paragraph, “although Johnny [Depp] and [Miss] Amber [Heard] separated I continued to work on Johnny [Depp]’s automobiles and [Miss Amber] Heard’s Mustang.
David Sherborne said that although Johnny [Depp] and [Miss] Amber [Heard] separated he continued to work, but [Miss] Amber [Heard] continued to instruct me [Mr David Killackey] for overhauling. David Sherborne said in every instance I [Mr David Killackey] followed instructions precisely.
David Sherborne said when asked what form of control, [this was about] giving instructions about the car. He said that paragraph 14 gave an insight as to what was going on and went on to refer to not being swayed by instructions from [Johnny] Depp’s team.
David Sherborne said when it was said that the repairs hadn’t been authorised, [Miss Amber Heard] was reminded of telephone conversations and text messages that contradicted that statement. He [David Sherborne] said that Amber [Heard] tried everything to release the car to her [Amber Heard] without payment. [Amber Heard] claimed not to have the money, said Johnny [Depp] was not paying and “f*** him [Johnny Depp] and f*** you [Mr David Killackey]”. David Sherborne said there were video clips.
He [David Sherborne] said what [Mr David] Killackey’s evidence demonstrated was that when [Amber Heard] realised she had to pay and he [Mr David Killackey] reminded her and said what she was saying was untrue, she [Amber Heard] started being abusive towards him [Mr David Killackey] and what his [Mr David Killackey’s] response to her was.
David Sherborne said that there had been a choice to amend and give a whole series of examples, but then it was said it can’t be relevant to chase down every point which was why [Mr David Killackey]’s evidence should be allowed to be introduced.
He [David Sherborne] said that he had suggested that because [Amber Heard] was abusive towards [Mr David] Killackey, that was suggested that David Sherborne was impugning victims of domestic violence – the way Ms [Amber] Heard presents the relationship as an inability to fight back and be aggressive – a one-way street, about [Mr David Killackey] being aggressive about Ms [Amber Heard] was the way [she – Ms Amber Heard] sought to portray herself [Amber Heard] which we [the Claimant] say was a light that was entirely untrue and part and parcel of the allegations.
David Sherborne moved on to Miss [Kate] James and he [David Sherborne] would not spend time dealing with the attack on Miss [Kate] James which was no doubt for public consumption.
He [said] it would be dealt with at trial, but what was more troubling than the transparent attack, was that Ms [Sasha] Wass [QC] was seeking to give evidence. David Sherborne said that the defendants had over 8 weeks and had not put in a single statement to challenge it. He [David Sherborne] said that Nicol J would be familiar with the expression submissions are not evidence. David Sherborne said there were 8 weeks which could be used for a response and there would no doubt be cross-examination.
He [David Sherborne] said that coming into the contents of the witness statement – there were several paragraphs that it was said were not particularly relevant and it had been demonstrated that Ms [Kate] James did not like Ms [Amber] Heard and David Sherborne would take them to the beginning of the statement.
Nicol J said to let him [Nicol J] get back to Ms [Kate] James’ statement, tab number?
David Sherborne answered tab 22, follow at page 362.
Nicol J said just a minute, then to David Sherborne he asked the question he had put to Miss [Sasha] Wass QC, was this an all or nothing exercise or [could he [Nicol J]] give permission to speak to certain paragraphs and not others?
David Sherborne answered, “of course”.
He [David Sherborne] said that Miss [Sasha] Wass QC hadn’t deal with the categories of evidence earlier that were indisputably relevant and said it’s problematic. David Sherborne said that whether to allow the entire statement was a matter of law and Your Lordship was perfectly entitled to say certain parts were not relevant or give weight as Trial Judge as a matter of case management if Nicol J regarded paragraphs 3 and 4 as irrelevant.
He [David Sherborne] said even if you looked at paragraphs 6-7 it talked about the beginning of the employment [and the] way [Amber] Heard moulded her personality to ingratiate [herself] with Mr [Johnny] Depp – it did talk about [at the] beginning [Amber Heard] pretending to like his [Johnny Depp’s] films when she didn’t which may not go to the heart of the evidence.
David Sherborne said that Miss [Sasha] Wass [QC] had said it was all or nothing, but what Miss [Sasha] Wass [QC] hadn’t dealt with was the categories that [Johnny] Depp was controlling and isolating that Ms [Amber] Heard served in September. He [David Sherborne] said that as Miss [Sasha] Wass [QC] said [he was] not [on this] occasion scoring points – Miss [Kate] James was relevant evidence [as Miss Kate James saw Amber Heard] day in, day out [whereas Ms Amber Heard stated that she] barely drank or took drugs – what Sasha Wass QC couldn’t say was that that was not relevant.
David Sherborne said that the final category of evidence of Miss [Kate] James was lying to the authorities, the [Department of] Homeland Security and the Australian dogs [and there was] no requirement to plead an issue that goes to credit. He [David Sherborne] said second it would be a massive investigation required [on the] dogs, which was not interested in the underlying fact – whether [Amber Heard] sought to procure and what Mr Murphy said about it.
David Sherborne asked to try to look briefly at Mr Murphy’s witness statements in the trial bundle and he’d asked his instructing solicitors to send it and that was no criticism of Your Lordship’s clerk.
Nicol J said just a moment, he’d seen that, he’d got it and asked if David Sherborne wanted Nicol J to open Mr Murphy’s witness statement?
David Sherborne replied, “paragraph 7”.
Nicol J said just to give him [Nicol J] a moment please. Nicol J said could he just check that David Sherborne had got [Nicol J’s] decision as to the scope of what Nicol J would deal with today [13th May 2020]?
David Sherborne answered yes, and if Nicol J was in any doubt at all then Nicol J should allow this in, then consider again when considering the objection to Mr Murphy and said to look at paragraphs 8-9.
Nicol J said looking at paragraphs 8-9 he [Nicol J] would like to look at Mr Murphy’s statement to remind himself of those. Nicol J then said right he’d read paragraphs 8 and 9 of Mr Murphy’s statement.
David Sherborne said he [Mr Murphy] specifically gave evidence that Miss [Amber] Heard asked him to lie under oath (that was what he said in paragraph 7) [which] Miss Heard [was] well aware was illegal.
David Sherborne said that in paragraph 8 before asking Mr Murphy she [Amber Heard] gave a false statement, a lawyer had said to Miss [Amber] Heard [to be] careful [he] will cooperate and not go public if you ask.
He [David Sherborne] said that Mr Murphy refused to solicit a false statement, Miss [Amber] Heard demanded a false witness statement, then [Amber] Heard said she wouldn’t want you [Mr Murphy] to have trouble [with his] job which was a much narrower issue than the dogs. David Sherborne said that this goes right to the heart of the credibility of Miss [Amber] Heard and Mr [Johnny] Depp. He [David Sherborne] said [she [Amber Heard]] sought to procure Miss [Kate] James to lie and the incident with the [Department of] Homeland Security went to [Amber Heard’s] credibility and the lack of response [from Sasha] Wass [QC] was undeniably relevant. David Sherborne’s final point on timing was he [David Sherborne] said it was right to say it was technically late.
Nicol J said it was not technically, they were late!
David Sherborne said it was wrong to say there were not explanations as [Jenny] Afia had put in a supporting witness statement at tab 13.
Nicol J asked where Nicol J would find tab 13 in the bundle for today [13th May 2020]?
David Sherborne answered, “page 184”.
Nicol J said just a moment and asked David Sherborne to give Nicol J the tab number for her [Jenny Afia’s] witness statement?
David Sherborne said, “tab 13 My Lord” and that page 184 was the relevant page.
Nicol J asked which paragraph of [Jenny] Afia’s statement?
David Sherborne answered paragraph 7 dealt with the extension, paragraph 8 with the practical difficulties of obtaining signed copies – signed being the operative word.
Nicol J said just a minute and so it’s fair to say that Miss [Jenny] Afia dealt with those collectively.
David Sherborne said the two relevant ones were served just after midnight on the Friday night.
Nicol J said that what he meant by collectively [was she] hadn’t stated specifically the practical problems.
David Sherborne agreed, not in relation to each one.
He [David Sherborne] explained about getting signed copies of each of the statements due to different time zones – it was a matter of hours late – both witnesses were in Los Angeles – it was not impossible which explained why it was late instead of 4 pm but after midnight. David Sherborne said to adopt Denton [[2014] 1 WLR 3926] to decide whether it was a serious breach. David Sherborne accepted that breaches as a matter of public policy should be avoided.
He David Sherborne said whether it was serious, as Nicol J knew as the Court of Appeal [[2014] 1 WLR 3926] had said, it was no good saying every breach was serious, some would be slight. David Sherborne said it was very much at the slight end of the spectrum with no effect on the trial, whether the breach had an effect he [David Sherborne] couldn’t possibly say, it was accepted it shouldn’t have been breached but was very much at the lower end.
Nicol J said to focus on the discrepancy, the date when the directions said when the witness statements must be served there was also the point expressly said that even if service was within that time, permission would be needed and that the initial statement was for witness statements to be exchanged in December.
David Sherborne agreed and said but there had been a second round of statements in February, the beginning of March and a re-amended defence filed, he appreciated the original date was just before Christmas. He [David Sherborne] said there were a series of further amendments made by the defendants. David Sherborne said that subject to permission was a different question to relief from sanctions, he was not trying to be difficult but Your Lordship was raising timing in relief from sanctions and there are the points she [Sasha Wass QC] made.
David Sherborne said it wasn’t an issue as to whether evidence should have been given in December, [it was] still 8 weeks from the trial, the original was made in March when it was due to be heard shortly before the trial which had gone off.
He [David Sherborne] said there had been a breach from 4 pm to justs after midnight, the second stage was looking at the reason, good reason, terrible reason or no reason at all. David Sherborne said it had been a matter of hours and difficulty obtaining signed copies in his submission that was a good reason, but if it got beyond the first and second there was a well trodden path, was it going to disrupt the trial? David Sherborne said that we firmly said no it was not going to derail the trial.
Nicol J said a number of times it was said that the defendants had an opportunity to respond which would be premature before permission, he did take the point Nicol J had been alerted that the Claimant wished to do so for some weeks and there will have to be a further opportunity to put evidence in reply.
David Sherborne made further responses to the defendants’ submission on the third stage of the Denton test [[2014] 1 WLR 3926], evidence, witness statements and the response of Miss [Amber] Heard.
Nicol J thanked David Sherborne very much and thanked Miss [Sasha] Wass [QC], this was a form of pre-trial review as there was some detail to reflect on so he would take a little time to consider the decision to make on the application – Nicol J would try to give a decision as quickly as possible – but could we deal with any further matters today [13th May 2020]?
Sasha Wass QC said she would like to flag up the matter of the timetable at page 101.
Nicol J asked to remind him [Nicol J] of the tab, the 600 page electronic timeteable was not tabulated but the draft timetable appeared at page 101.
David Sherborne replied tab 6 My Lord.
Sasha Wass QC thanked Mr [David] Sherbourne.
Nicol J said just a minute.
Sasha Wass QC said that the week beginning [in] July, Kristina Sexton on the morning of the 23rd, these were going to have to be swapped over.
Nicol J replied, “Yeah”.
Sasha Wass QC said about permission to cross-examine Laura Divenere.
Nicol J said just a moment.
Sasha Wass QC said LAPD [Los Angeles Police Department] officer Melissa Saenz and Tyler Hyddon do not appear in the draft timetable and to let her know whether that was an oversight?
David Sherborne said it appeared to be an oversight. He [David Sherborne] said what was not put in the witnesses was under a hearsay notice, but David Sherborne was happy to accommodate, there was nothing sinister, it was not in because it was not in the only provisional but it looked like the estimate was spot on.
Sasha Wass QC was grateful and said about the timetabling of disclosure and trial bundles.
David Sherborne said about extensive disclosure and David Sherborne was not entirely sure [what was meant] by timetabling disclosure as David Sherborne was not knowing what this disclosure was.
Sasha Wass QC said it was in respect of outstanding and new witnesses by the 27th May, for avoidance of doubt Vanessa Paradis [in reference to] drunkeness, drug taking and violence to people or property and in respect of Miss [Winona] Ryder she had one well documented episode of mental health difficulties which may well be relevant.
David Sherborne said he presumed it mean the trend to smear individuals in the public domain and it sounded like requests of witnesses. He [David Sherborne] that they would give disclosure of Miss [Winona] Ryder’s mental health, but that they shouldn’t need to remind Miss [Sasha] Wass [QC] every time and asked regarding Miss [Amber] Heard that if [there was to be] third party disclosure, then an application should be made throwing it out and not taken further.
Sasha Wass QC responding to David Sherborne as he had asked for elaboration, referred to the video evidence of Mr David Killackey and asked for no disclosure to be dealt with by correspondence unless David Sherborne wanted to trouble the court now.
David Sherborne said that because of the overhauling of the Mustang it was filmed and there was footage of it [the Mustang] somewhere of leaving the showroom, but he hadn’t realised it would be a point taken. He [David Sherborne] said if it was found it would be provided as it goes to control of the car, if it was found it could be provided.
Nicol J said he was conscious of two things. He [Nicol J] said that sensible parties can often helpfully reach agreement so the courts don’t have to react [with] a ruling. Nicol J said that the trial date was approaching. Nicol J asked whether it would be helpful for Nicol J to adjourn the present hearing and resume in an hour and consider matters parties were unable to agree and useful and practicable to deal with later that afternoon [13th May 2020].
David Sherborne said he appreciated the intention, but he [David Sherborne] didn’t think it helpful. He [David Sherborne] said it looked as if it was a third party disclosure order. David Sherborne said that considerations that applied, not foreclosing some resolution through correspondence, he [David Sherborne] would’t want to waste [the time of] Your Lordship, the court and the 21 other participants.
Sasha Wass QC said that if Mr [David] Sherborne thinks it is pointless then we have to be guided by him.
Nicol J said alright then, he [Nicol J] would withdraw that suggestion, but encourage the parties to liaise on outstanding matters including the trial timetable and issues of disclosures. Nicol J said that if it couldn’t be agreed the usual course was to put in an application notice to find a way as quickly and conveniently as possible.
Sasha Wass QC asked for an order about the trial bundle. She [Sasha Wass QC] said she would be grateful for an order that the trial bundle in final form [be sent to] defendants and Court no later than 5th June, Sasha Wass QC hoped that was modest given that the meat had been already achieved and it was simply finessing documents late in the day. Sasha Wass QC invited the court to make that order.
David Sherborne said he was taking instructions as what was anticipated as it was not just the people who stand up, but all the people behind.
Nicol J said he was extremely grateful for the hard work by solicitors on both sides.
David Sherborne said he was very grateful and to Your Lordship, one caveat depends on what additional disclosure is sought. David Sherborne said either leave as 15th June or whatever makes it more normal two weeks before, David Sherborne was a little more nervous about three weeks but it was a matter for Your Lordship.
Sasha Wass QC said it was many weeks away – the plan was to deal with it straight away with a disclosure order [which] was the appropriate way of dealing with it.
Nicol J said to Mr [David] Sherborne that it was the Claimant’s responsibility to prepare the trial bundles of course with contribution from the defendants, Nicol J saw the merits of this well in advance of the 15th June.
Sasha Wass QC said electronic and hard copy bundles, did [Mr David] Sherborne have anything to add?
David Sherborne said he wasn’t anticipating any distinction, but yes that was a good point given Your Lordship is making an order. He said that the COVID-19 restrictions may mean that hard copy bundles take a little longer than the 15th to agree for both.
Nicol J said that by the 15th June the Claimant must provide electronic and hard copy bundles subject to any COVID-19 restrictions which would make compliance impracticable.
Nicol J then asked if there was anything else that needed to be dealt with today [13th May 2020]?
Sasha Wass QC said could My Lord give a moment to ask whether Mr [Adam] Wolanski QC needed to deal with anything or matters [Mr Adam Wolanski QC] wanted to raise?
Nicol J asked if Adam Wolanski QC was on the connection?
Adam Wolanski QC asked if Nicol J could hear him?
Nicol J said he couldn’t see Adam Wolanski QC.
Adam Wolanski QC said that the answer was no.
Nicol J said if there was nothing further, Nicol J would distribute the decision on the question as to whether the Claimant has permission to rely on the witness statements as soon as possible.
Nicol J thanked everybody and the solicitors and the link could be terminated now.
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