Last month, we reported on the pre-trial disclosure orders made in Johnny Depp’s defamation claim against News Group Newspapers and The Sun’s executive editor, Dan Wootton. The trial was due to start on Monday 23 March 2020 but was adjourned the Friday prior due to the COVID-19 outbreak. In this article, we discuss the position on virtual defamation trials and why the adjournment of the Depp libel trial is likely to be the exception rather than the norm during the lockdown.

It will not come as news to anyone that Johnny Depp is suing News Group Newspapers, the publishers of The Sun, and its executive editor, Dan Wootton, for defamation in the English Media and Communications Court (the MAC Court). His claim relates to different versions of an article with the original headline “Gone Potty: How can JK Rowling be ’genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”.

The 10-day trial of Mr Depp’s claim was due to start on Monday 23 March 2020, but this was adjourned on Mr Depp’s application on Friday 20 March 2020. Two of Mr Depp’s barristers were said to be in self-isolation due to COVID-19 and Mr Depp himself was in lockdown in France. Mr Justice Nicol adjourned the trial with regret, but he was clearly concerned about the safety of those in the courtroom and what to do in the event that a participant became ill midway through proceedings.

While reports indicate that many of the witnesses would have given evidence by video link-up in any event – a tried and tested path in the English courts – there does not appear to have been serious consideration of holding the proceedings as a whole as a virtual defamation trial. Despite this, the time seems ripe for such virtual trials in the MAC Court, in light of the following three recent developments:

  1. The civil courts’ Protocol Regarding Remote Hearings issued on 20 March 2020 confirms that hearings, whether applications or trials, should go ahead remotely “wherever possible”. Hand-in-hand with this is new Practice Direction 51Y, which will remain in force for as long as the Coronavirus Act 2020. This technical amendment clarifies that the court may exercise its discretion to conduct hearings remotely in private, where proceedings are to be conducted wholly as video or audio proceedings and it is not practicable (i) for the hearing to be broadcast in a court building, or (ii) for a member of the media to access the remote hearing. The court must ensure access by the public after the event through making available audio or video recordings of those hearings.
  2. It is true that some cases seem instinctively more suitable for hearings remotely in private than others. For instance, some urgent cases related to privacy, breach of confidence and data issues may require emergency injunctions and this system should be well suited to them. But preliminary defamation hearings on “meaning”, which have recently increased in frequency, may also lend themselves easily to being dealt with remotely. Earlier this year, Mr Justice Warby gave a preliminary ruling on meaning on paper in the libel case of Tina Hamilton v News Group Newspapers, which suggests a pre-virus shift in court behaviour in any event.
  3. The further step of a full defamation trial by virtual means may have seemed more fanciful were it not for the High Court ruling on 19 March 2020 that the civil trial in National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors should proceed remotely. The claimant (represented by Stewarts) argued that such a remote hearing should be possible using one or more forms of video conferencing facilities. Mr Justice Teare decided that the hearing should go ahead as a virtual trial, with an adjournment of two days to enable the use of video conferencing technology in his judgment. He said: “The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear: The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely.” In the event, this first virtual trial in the Commercial Court did start on Thursday 26 March 2020 and concluded on Wednesday 1 April, with live streaming and the posting on the internet of daily transcripts. Reports from the Stewarts’ trial team are that the virtual environment has worked well.

While the adjournment of a trial may still be necessary depending on the case, the National Bank of Kazakhstan is a complex commercial case with witnesses in multiple jurisdictions. It is therefore clear that the court will be open to the possibility of virtual trials in a range of hearings and that the default position is that adjournment should be prevented when possible.

Given the lack of certainty about how long the UK may be in lockdown, with existing defamation claims ready to proceed and more being issued, it seems unlikely that there would be stays of all defamation trials indefinitely when a virtual model looks perfectly fit for purpose. As such, it is expected that the MAC Court will be open for business fully in the same way as the Commercial Court, but that justice will be served in technologically new and effective ways while the lockdown continues.



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