Johnny Depp's Libel Case May Be Delayed Amid Pandemic

Law360, London (March 18, 2020, 4:38 PM GMT) -- The beginning of a trial over Johnny Depp’s libel suit in London against the publishers of The Sun newspaper was thrown into doubt after the judge overseeing the case raised concerns Wednesday over the threat of COVID-19.

High Court Judge Andrew Nicol said that he will make a final determination on Friday over whether the 10-day trial — centered on an article that alleged Depp was physically violent and abusive toward his ex-wife Amber Heard — should be suspended or go ahead on March 23 as scheduled.

Wednesday’s hearing was held for several applications related to disclosure and a privacy order for parts of the trial. Depp’s solicitors, who attended alongside representatives for the defendants News Group Newspapers Ltd. and The Sun’s executive editor, Dan Wootton, said that one of Depp’s barristers — who normally addresses the judge — is in self-isolation because of coronavirus and the other was unable to attend court. Depp himself is currently in the south of France.

If the trial does go ahead as planned, it may do so with a longer timetable — catering for potential delays as the 24 expected witnesses give evidence over video, many of whom are based in the U.S. and face strict government-imposed travel restrictions amid the pandemic.

“There’s also the issue of if we were to start and illness struck one or more participants halfway through, what would we do? Even if you haven’t raised the question, I was going to raise it,” Judge Nicol told the lawyers.

The actor filed his libel suit in June 2018 over an article published on The Sun website in April 2018 under the headline “Gone Potty: How can J.K. Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”

The headline was later amended — though still referenced assault claims — and the article also ran in the print edition of the newspaper.

According to court filings, the newspaper group is seeking to prove at trial that Depp did beat Heard during their relationship, “causing her to suffer significant injury and on occasion leading her to fearing for her life.” Depp has denied the allegations, arguing it was Heard who assaulted him and that the article damaged his career.

At court Wednesday, Adam Wolanski QC, counsel for the newspaper, said that the pair had “diametrically opposed” recollections of the violent incidents alleged by either side — a central matter that the judge will have to determine at trial.

“We’re extremely keen for the trial to proceed,” Wolanski said. “We have witnesses who are able to give evidence, probably not here, but by video link.”

He said that evidence that was due to be presented at trial has repeatedly been leaked to the press and that Heard, who has agreed to give evidence via video for the newspaper, suspects the material is coming from Depp. She says her ex-husband wants to “conduct this trial by media.”

“Ms. Heard has simply had enough and is prepared to do whatever it takes for this to go ahead,” Wolanski said.

The hearing comes after the judiciary ordered on Tuesday that any new criminal trials scheduled for longer than three days must be postponed in light of the coronavirus outbreak.

Judge Nicol said that although Depp’s case is in the civil courts, and is a trial by judge alone — rather than a jury — the trial will still involve the attendance of a significant number of people, including lawyers, witnesses and members of the public and press, and so their safety and ability to come to court must be taken into account.

Wednesday’s hearing also dealt with an application from the newspaper for further disclosure from Depp. The actor has already handed over medical records relating to his prescription drug and alcohol usage. But the newspaper wanted more information relating to his mental health, seeking the records held by two psychiatrists who treated the actor.

Wolanksi said that text messages Depp’s legal team had handed over in the recent round of disclosure, ordered by the court last month, should have been disclosed far earlier as they are directly relevant to his client’s defense.

“They demonstrate that, just as we said at the [pretrial review], the claimant just cannot be trusted when it comes to disclosure,” the attorney said.

Depp’s lawyers said there is “nothing that has been improper or untoward” in the actor’s approach to the disclosure process.

Depp has called 17 potential witnesses to give evidence. The newspaper has called seven witnesses, including Heard.

It had already been agreed that Heard, two officers from the Los Angeles Police Department, Depp’s accountant Ed White, Heard’s actress friend Amanda de Cadenet and 16 other individuals would also give their evidence through video link.

Depp is represented by Schillings International LLP.

News Group and Wootton are represented by Adam Wolanski QC of 5RB, instructed by Simons Muirhead & Burton LLP.

The case is John Christopher Depp II v. News Group Newspapers Ltd. and another, case number QB-2018-006323, in the Queen’s Bench Division of the High Court of Justice of England and Wales.

--Editing by Tom Mudd.

For a reprint of this article, please contact reprints@law360.com.

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