Johnny Depp’s Libel Lawsuit Against Amber Heard Can Move Forward Despite U.K. Ruling, Says Virginia Court

Spencer Baculi |

Aug 19, 2021

Source: Minamata (2020), Vertigo Releasing

Despite losing his UK libel suit against The Sun, in which he sought to argue against the tabloid’s description of him as a ‘wife-beater,’ an American court has ruled that Johnny Depp may proceed with a separate libel suit against ex-wife Amber Heard due to a key difference between the two cases.

As detailed by Fairfax County Circuit Court Chief Judge Penney S. Azcarate on August 17th, Heard’s previous attempts to dismiss Depp’s libel suit were based on the doctrine of collateral estoppel, which bars individuals from “litigating any issue of fact actually litigated” and precludes “privity,” a legal concept which “precludes a party or a party’s privies from litigating a factual issue determined in the prior litigation.”

However, as noted by Azcarate, in Virginia, privity only exists when a party is “so identical in interest with another that he represents the same legal right.”

“[Heard] argues she was in privity with The Sun because they both had the same interest in the case,” continued Azcarate. “However […] The Sun’s interests were based on whether the statements the newspaper published were false. Defendant’s interests relate to whether the statements she published were false.”

“Although the claims are similar in the sense they both relate to claims of abuse by Plaintiff, the statements being defended in the UK case are inherently different than the statements published by the Defendant,” the judge concluded. “Therefore, given Virginia’s narrow construction of privity, Defendant and The Sun are not in privity.”

Azcarate further explained that Heard did not qualify for privity because she “was not a named defendant” in Depp’s case against The Sun, and as such, did not participate fully in the discovery process because she “was not subject to the same discovery rules applicable to named parties.”

“In fact,” added Azcarate, “Defendant could not [emphasis hers] have been named defendant to the UK litigation because her allegedly defamatory statements were made after the UK action commenced.”

Responding to an earlier claim made by Heard’s legal team that ruling in favor of Depp “would set a dangerous precedent”, which they referred to as a ‘chilling effect’ on the legal system, Azcarate countered that “If anything, upholding English libel judgements in the United States would create the chilling effect and could create a dangerous precedent.”

“Accordingly,” declared Azcarate, “this Court is unpersuaded by Defendant’s argument.”

Heard originally attempted to have Depp’s lawsuit dismissed earlier this year, filing a supplemental plea with the Fairfax County Court on April 13th which argued that “this Court should recognize the U.K. Judgements,” and recognize “that statements in the Op-Ed published in the Washington Post are true – Mr. Depp committed domestic violence against Ms. Heard on many occasions, causing her to fear for her life.”

“Therefore,” the plea argued, “as a matter of law, Depp cannot prevail on any of his claims, and Depp’s complaint against Ms. Heard should be dismissed in its entirety.”