In previous blogs (see links at the bottom of this article) we discussed the cases brought by Johnny Depp against both NGN and Amber Heard.
Depp v Heard verdict
Recently, the verdict of the Jury was handed down in the USA in respect of a news piece written by Amber Heard about her being a victim of domestic abuse in the Washington Post in 2018. Depp sued Heard for $50m and Heard counter-sued also alleging defamation.
The case pursued against NGN in the Courts of England and Wales resulted in Mr Depp losing the case. The case against NGN revolved around a suggestion that Depp was a ‘wife-beater’. Depp lost the case against NGN having established all of the necessary elements for libel on the basis that the Judge, in that case, held that the comments made were substantially true.
In stark contrast, the Jury in the case brought by Depp against Heard found that Heard was unable to substantiate her allegations and that her comments were motivated by malice. The Jury, therefore, awarded Mr Depp $10m, in addition to $5m punitive damages (with the punitive damages being reduced to $350k by the Judge on the basis that there was a statutory cap on the level of punitive damages). Heard also succeeded, but to a lesser extent, in respect of one count of defamatory comments made by Depp, with her damages being awarded at $2m with no punitive damages.
The one key difference between the two cases is that the case in England and Wales was determined by a Judge alone and the case in the USA was determined by a Jury. Up to the introduction of the Defamation Act 2013, there was a presumption in a defamation case in England and Wales that there would be a jury trial.
Trial by jury in defamation cases in England and Wales
Section 11 of the Defamation Act 2013 removed this presumption. Accordingly, if a party wants a jury trial in a defamation case in England and Wales, they would have to persuade a judge that this was appropriate in the circumstances of the specific case. A recent decision of Mr Justice Nicklin on an application made pursuant to permission for a defamation case to be tried by a jury is the case of Blake and Others v Fox [2022], which highlights how difficult it is to now obtain permission for a trial by jury in defamation cases in England and Wales. Mr Justice Nicklin summed up his position as follows:
“77. Turning to the broader issues of discretion under s.69(3), I have no hesitation in rejecting the application for trial by jury, largely for the same reasons as were carefully and compellingly explained by Warby J in Yeo.
i) I have already explained the importance of a reasoned judgment generally. In her submissions, Ms Rogers correctly identified the importance of such a judgment in this case (see [65] above).
ii) Proportionality, effective case management, and furtherance of the overriding objective weigh very heavily against trial by jury. A jury trial effectively disables the Court from performing any meaningful case management. Not only does that mean that a defamation action will cost more and take longer during its procedural and trial phases, but it also raises, as it always did, the spectre of the waste of enormous costs on the trial of issues that are ultimately found to be irrelevant. A return to such an inconvenient mode of trial would require the most compelling justification before the Court would exercise the discretion under s.69(3) to order a jury trial. In this case, for example, if the Court were to direct trial, as a preliminary issue, whether the Claimants’ Tweets contained or were an allegation of fact or expression of opinion, that determination would ensure that time, costs, and resources were not expended on a trial of a substantive defence that was irrelevant.
iii) The substantive law of defamation has become more complicated since jury trial was effectively abolished by the 2013 Act…Although the Defendant had refused the invitation to put forward a draft ‘route to verdict’, I am satisfied that such a document – and the directions of law that would have to accompany of them – would be complex and challenging.
iv) The only factors raised by the Defendant in favour of jury trial are what is said to be the “enhanced impartiality” of jury trial over judge alone, in the particular circumstances of the case and particularly in light of the issues surrounding “racism”, and that the Defendant believes that the quality and nature of his vindication (were he to achieve that) would be undermined if it came in a judgment from a High Court Judge. In respect of the first point, I am simply not persuaded that the value of this – somewhat nebulous – factor makes up in any way for the substantial and obvious disadvantages of the jury trial. Equally, the Court cannot take important decisions of case management in an effort to avoid some people thinking less of any vindication of the Claimant because they believe that it has come from a “white judge [who] sided with a white man who denied being a racist”.
If the decision were therefore purely an exercise of discretion under s.69(3), I would refuse to direct trial by jury. As recognised in Yeo, since the removal of the statutory presumption in s.69(1), jury trials in defamation claims are now as likely to be tried by a jury as a personal injury claim or a contractual dispute…”
Comment
Given how difficult it is to now have a jury trial in England and Wales, where a defamed individual has a choice of jurisdictions as to where to pursue a claim, if a jury trial is preferred, they should think long and hard about whether the Courts of England and Wales is the right forum for their case to be heard.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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