A claim by Amber Heard that she gave all of her $7m (£5m) divorce settlement with Johnny Depp to charity was a “calculated and manipulative lie” to influence a libel trial, his lawyers have told the court of appeal.
The judge who found in a libel trial last year that Depp had assaulted his then wife was “subliminally influenced” by the evidence of the donation, which included victims of domestic violence, his legal team claimed.
Lawyers representing News Group Newspapers (NGN), publishers of the Sun, told the court of appeal that Heard was still “a victim of serious domestic violence” even if she had been “feisty” and admitted on video to slapping Johnny Depp.
Judges presiding over an attempt by the actor to overturn a ruling last year that he assaulted her during their marriage were reminded of the “ample support” for Heard’s evidence as his legal team accused her of a “calculated and manipulative lie”.
Heard had not donated all of the divorce settlement to US charities as she claimed, Depp’s legal team argued.
They also argued that the trial judge had erred in not attaching much weight to recordings in which Heard appeared to admit to assaulting her former husband.
Neither Depp nor Heard was present in court for the hearing at the Royal Courts of Justice in London, where his lawyer described her as “the key witness” at the libel trial against NGN.
Depp lost the high-stakes action in November after the Sun newspaper had described him as a “wife beater” in an article.
His legal team began the application for permission to appeal against the ruling by questioning whether she had honoured a pledge to split her $7m divorce settlement evenly between two charities: the Children’s Hospital of Los Angeles and the American Civil Liberties Union (ACLU).
In written submissions on behalf of Depp, Andrew Caldecott QC said the pledges about donating the $7m had “strengthened Heard’s credit in an exceptional way”. But, he added, that was a “calculated and manipulative lie, designed to achieve a potent favourable impression from the outset”.
“They [NGN] would have had no defence without Ms Heard. There were many other witnesses, but she was on any view centre stage,” said Caldecott, who added that Heard’s witness statement referred to how “the entire amount of my divorce settlement was donated to charity”.
The barrister told three court of appeal judges: “We say it is a potentially subliminal message – ‘I want him to pay but I don’t want to keep a dime of his money because of the way I have been treated’ – and obviously in the context of this case it implies revulsion at the way he has treated her physically.”
On 18 August 2016, Heard publicly stated that the $7m would be equally divided between them, according to the barrister, but he added that “the only donation” to the hospital was one of “$100,000, not the $3.5m which we say the court was led to believe was the true position”. He said the ACLU received $350,000 initially and a subsequent $100,000, according to documents that have been released.
At the end of hearings last year, Mr Justice Nicol had rejected Depp’s contention that Heard was a “gold-digger”, saying in his ruling: “Her donation of the seven million US dollars to charity is hardly the act one would expect of a gold-digger.”
Caldecott argued on Thursday that if “the truth about the charity claim emerged at the trial, it would have materially affected Mr Justice Nicol’s consideration of Ms Heard’s evidence as a whole”.
He added: “Her public statements expressly stated that the ACLU donation had victims of domestic violence specifically in mind. The subliminal message of the charity claim was in any event clear: Ms Heard would not wish to keep any of Mr Depp’s money, because he had subjected her to serious violence.
“The evidence presented, and was obviously intended to present, her in the strongest terms as both virtuous and a victim.”
Adam Wolanski QC, representing NGN, said the new evidence Depp wanted to rely on “would not have had any impact” on the result of the trial and the judge had not been required to decide whether or not she had donated the sums.
The issue was only of relevance to “the so-called ‘gold-digger’ thesis”, which he said had been a “misogynistic trope” that Depp’s legal team had expressly abandoned during the case.
Wolanski argued that “even if the judge had had the fresh evidence and decided it did demonstrate that Ms Heard was a gold-digger” that did not mean she had not been assaulted.
He also rejected the contention that Heard had lied about donating her divorce settlement to charity. The ACLU “understood” that Heard had “pledged to pay over 10 years – that is a donation”.
Going on the offensive, Wolanski said Depp had brought the application to “promote his position” in the US where he is suing Heard over a 2018 Washington Post opinion piece in which she claimed to be a victim of domestic abuse but did not mention the actor by name.
On another front, Caldecott also argued that the high court judge unfairly rejected evidence unfavourable to Heard during the trial. He said the judge should have placed more importance on recordings in which Heard appeared to admit to assaulting Depp when she was heard saying: “I can’t promise I won’t get physical again.”
But Sasha Wass QC, representing NGN, said the trial judge had been entitled to dismiss the private recordings of the couple, which she referred to as the “bickering between two people who were in the final stages of a relationship”.
She added: “The position if the judge had found – because Mr Depp’s case was that ‘she hit me more than once’ – she was feisty and had slapped Mr Depp as she admitted on that tape, that does not disqualify her from being a victim of serious domestic violence.”
The court of appeal judges said they would deliver their judgment in written form in due course.