Johnny Depp Files Appeal Against Amber Heard $2 Million Verdict

We previously discussed a number of aspects of a libel action brought by Johnny Depp against NGN Group in respect of accusations made by his ex-wife, Ms Heard, that Mr Depp was a ‘wife-beater’ (see these blogs here and here).

Mr Depp then pursued proceedings in the USA against Ms Heard personally in respect of similar accusations made in an article in the Washington Post (see our blog on these proceedings here).

Within the same proceedings, Ms Heard issued a counterclaim in relation to three statements that were made to the Daily Mail in 2020 by Mr Depp’s divorce lawyer, Adam Waldman. Such statements had described Ms Heard’s abuse allegations as a hoax. Ms Heard stated that Mr Depp was liable for these comments as they were made on his behalf.

The proceedings concluded in June 2022 and the jury awarded Mr Depp $10 million in compensatory damages and $5 million in punitive damages. The jury found in Mr Depp’s favour in relation to two of Mr Waldman’s statements. They however found in Ms Heard’s favour in relation to the third statement.

The third statement was published in an article in the Daily Mail dated 27 April 2020. Within this statement, Mr Waldman claimed that Ms Heard and her friends “spilled a little wine and roughed the place up, got their stories straight”. The jury considered this statement to be defamatory and awarded Ms Heard $2 million in compensatory damage and no punitive damages.

Mr Depp has lodged an appeal solely in relation to the third statement. Mr Depp has asked the Court to reverse the judgment in relation to the third statement but to affirm the judgment in his favour. Within his appeal, Mr Depp’s lawyers comment that the “judgment in Ms Heard’s favour on that lone statement is erroneous”. There appears to be two elements to Mr Depp’s appeal, namely:

What would the outcome be if the appeal was being heard in the Court of England and Wales?

In England and Wales, a person may be liable not only for his own defamatory comments but also vicariously for defamatory comments made by his agent. It is however generally the position that a defendant is not vicariously liable for the torts of independent contractors who are carrying on a business on their own account. If Mr Depp’s appeal was being heard in England and Wales, he would therefore need to prove that in making the third statement Mr Waldman was acting as an independent contractor.

Mr Depp’s appeal further refers to his motions for summary judgment and strike out based on the lack of evidence presented by Ms Heard. Had the trial taken place in the Court of England and Wales, Mr Depp likely would have been advised to make an application for summary judgment and/or strike out of Ms Heard’s counterclaim.

To be successful in an application for summary judgment, Mr Depp would have needed to prove that Ms Heard’s counterclaim had no real prospect of success and that there was no other compelling reason for a trial. The test for strike out is slightly different. To be successful in an application for strike out, Mr Depp would have needed to prove that Ms Heard disclosed no reasonable grounds for bringing her claim. Mr Depp could have based either of the above applications on Ms Heard failure to file the relevant evidence in support of her counterclaim.