WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA

There are many aspects of the judgment in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) that have gained wide media attention.  Here I want to look at two issues in relation to the failure to call witnesses whose statements have been disclosed. The first relates to the failure to call witnesses whose statements have been served, the second relates to the wider dissemination of those statements if the witnesses are not called but are referred to in open court.

THE CASE

The claimant brought an action against the defendant alleging libel. That action was unsuccessful.  There was an issue as to whether the media should be granted access to statements of witnesses whose statements had been served but did not, in fact, give evidence during the trial.  It was held that since the statements had been mentioned in open court the statements were

THE JUDGMENT ON THOSE ISSUES

1. 1. The Claimant had served witness statements from various other people whom he did not call to give evidence. They included his former partner, Vanessa Paradis, and an earlier girlfriend, Winona Ryder. Ms Wass indicated that, had they been called, she would have wished to cross examine them as to their statements, but that was immaterial. Since the Claimant had not called them, he was unable to rely on the evidence they might have given (see CPR r.32.5(1)). The Claimant having chosen not to call these witnesses, it would have been open to the Defendants to put in their witness statements as hearsay evidence (see r.32.5(5)) but that was not something which the Defendants wished to do.

   2. A separate issue arose in consequence of the Claimant’s decision not to call these witnesses. PA Media (formerly the Press Association) applied for copies of the witness statements of Ms Paradis and Ms Ryder. By r.32.13(1),

‘A witness statement which stands as the evidence in chief is open to inspection during the course of the trial unless the court orders otherwise.’

1. However, that rule was not engaged. Since the witnesses had not been called, their witness statement did not stand as their evidence in chief. However, Sam Tobin, on behalf of PA Media, submitted that the statements had been referred in open court. On that basis, it was argued, they should be open to inspection. Neither Mr Sherborne nor Ms Wass opposed the application and neither of them asked me to distinguish between those paragraphs which had been read out and those which had not. Accordingly, I acceded to the request and copies of those witness statements were provided.

2. The Defendants called the following witnesses: Amber Heard (in person); Josh Drew (who was the fiancé of Ms Heard’s friend Raquel Pennington, who later married Ms Pennington but who is now divorced from her. In 2016 he and Ms Pennington lived in Penthouse 1 in the Eastern Columbia Building) (via video-link from Los Angeles); Melanie Inglessis (who is a professional makeup artist) via video-link from Los Angeles); Whitney Henriquez (who is the younger sister of Amber Heard) (in person); Kristina Sexton (a friend of Amber Heard) (via video-link from Australia); Raquel Pennington (a friend of Amber Heard) (via video-link from Los Angles); iO Tillett Wright (a friend of Amber Heard) (via video-link from Los Angeles). There were 14 days of evidence and two further days of closing submissions.

3. I also had some 13 lever arch files of documents. There were many late additions to the bundles which explains why finding the correct document was sometimes challenging. Where it is necessary to give a reference to a document it is as bundle number/tab number/page number. There are multiple copies of some documents. Where this is the case, I give a reference to only one.