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’ (these blogs can be read here and here). It is clear from the summary of the outcome of the case that Mr Depp was unsuccessful in his case against NGN Group.
The Judge summed up his reason for reaching this conclusion as follows:
“Although he [Depp] has proved the necessary elements of his cause of action in libel, the defendants have shown that what they published in the meaning which I have held the words to bear was substantially true…I have reached these conclusions having examined in detail the 14 incidents on which the defendants rely, as well as the over-arching considerations which the claimant submitted.”
The doctrine of res judicata
The saga continues as Mr Depp has now pursued proceedings in the USA against Ms Heard personally in respect of similar accusations made by Ms Heard in an article in the Washington Post. In England and Wales, there is a legal doctrine known by its Latin name, res judicata, which translates as ‘a thing determined’. The doctrine operates to stop parties litigating repeatedly over the same matters. Whilst Ms Heard was not a party to the libel action brought by Mr Depp against NGN Group, it is very clear from the Court’s findings that Ms Heard was NGN Group’s star witness and that the conclusion reached in that case as a result of findings that the Judge found the accusations of domestic abuse levelled at Mr Depp by NGN Group were ‘substantially true’.
Whilst the current defamation proceedings are on foot in the USA, it does beg the question of whether the doctrine of res judicata would have applied if the proceedings were pursued by Mr Depp against Ms Heard in England and Wales. In order to successfully deploy the doctrine, a party needs to establish the following:
- The decision reached was judicial, whether determined in England and Wales or otherwise;
- The decision reached formed part of a binding judgment;
- The tribunal had jurisdiction over the parties to determine the subject matter of the case;
- The judgment was on the merits and final;
- The question raised in later proceedings had been dealt with in earlier proceedings; and
- The parties to the subsequent case were the same or their ‘privies’ or the decision was intended to apply to all.
It is safe to say that numbers one to four above would be answered in the affirmative when applied to the case brought by Mr Depp against NGN Group. For the purposes of this blog, it is assumed that five also applies, although it is accepted that there would be significant scope to argue that the determination made by the Judge was on a different question, whether substantially or in part. Whilst Ms Heard was the star witness in the NGN Group case, she was not a party to it. Accordingly, could it be argued that the doctrine could apply to Mr Depp preventing him from bringing any subsequent proceedings against Ms Heard based on allegations made by Ms Heard of domestic abuse, as a result of him losing the case against NGN Group (or to put it in legal terms was Ms Heard a ‘privy’ to NGN Group)?
In the case of Resolution Chemicals v H Lundbeck, Lord Justice Floyd summarised his answer to the question of who a privy is as follows:
“32. […] in my judgment a Court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party; and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation.”
The above still leaves significant room for interpretation on a case-by-case basis and perhaps does not, therefore, take the question to be answered about whether Mr Depp would be prevented from bringing subsequent proceedings against Ms Heard in England and Wales any further forwards. The Judge in Gleeson v J Wippell & Co however stated that the question could be tested as follows:
“…in the present case, I think that the matter may be tested by a question that I put to Mr. Skone James in the opening. Suppose that in the Denne action the plaintiff, Miss Gleeson, had succeeded, instead of failing. Would the decision in that action that Wippell had indirectly copied the Gleeson drawings be binding on Wippell, so that if sued by Miss Gleeson, Wippell would be estopped by the Denne decision from denying liability? Mr. Skone James felt constrained to answer Yes to that question. I say “constrained” because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. … In such a case, Wippell would be unable to deny liability to Miss Gleeson by reason of a decision reached in a case to which Wippell was not a party, and in which Wippell had no voice. Such a result would clearly be most unjust. Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him.”
Comment
Applying this approach to Mr Depp’s case would lead to the question of whether it would be just to prevent Ms Heard from defending defamation proceedings brought by Mr Depp if he had succeeded in his action against NGN Group.
Clearly, it would not be just to impose such a restriction given that Ms Heard was not a formal party to the NGN Group proceedings and accordingly would not be motivated to defend herself in the same way as she might if she was the defendant. As such, it is highly likely that the doctrine of res judicata would not apply to a subsequent action brought by Mr Depp against Ms Heard for defamation in the Courts of England and Wales or indeed against any other newspapers publishing further articles with Ms Heard as a source.
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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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