FAIRFAX, Va. (Legal Newline) - A Virginia judge is set to decide whether Johnny Depp can go forward with a defamation lawsuit against ex-wife Amber Heard.
Fairfax Circuit Court Chief Judge Penney Azcarate has taken under advisement Heard’s affirmative defense to Depp's 2019 lawsuit, which if granted, would bar the claim.
Depp’s attorney Benjamin Chew has filed a brief in opposition, and a ruling is expected by Aug. 20.
As widely reported, Depp lost a libel lawsuit he filed in a UK court in London in 2018, against the British tabloid, The Sun, over an article that that called him a "wife beater."
The Pirates of Caribbean star subsequently sued Heard in the Circuit Court of Fairfax County in Virginia, where Heard is arguing that res adjudicata and estoppel apply because the same claims have already been litigated and resolved in England.
When reached by telephone, Heard’s attorney, Elaine Charlson Bredehoft, declined to comment.
But according to a brief Bredehoft wrote for Heard, though Depp’s complaint filed in the UK court alleged that he was not a wife-beater, the burden of proof was on the defendant, The Sun, to prove these statements were true.
“The United Kingdom's High Court of Justice Queen's Bench Division (the trial court) found in favor of the defendants and dismissed Mr. Depp’s case holding that Mr. Depp has not succeeded in his action for libel,” Bredehoft wrote in an April 13 judicial notice in Depp's case against Heard.
While the Uniform Foreign-Country Judgments Recognition Act allows for American courts to recognize a foreign judgment, Virginia Code § 8.01-465.13:3 provides standards for the protocol, which include requiring the litigant who is resisting recognition of a foreign-country judgment to establish the grounds upon which a foreign judgment should be dismissed.
In response, Depp asserts his ex-wife’s status as a non-party in the UK defamation lawsuit against The Sun prevented him from having a full and fair opportunity evidentially to litigate the validity of Heard's claims of abuse.
“Ms. Heard and Mr. Depp are the only ones who truly know whether Ms. Heard’s claims of domestic abuse are true or false and it is in this action to which they are both parties that this factual issue should be adjudicated,” wrote Chew in Depp’s June 28 opposition brief.
“To recognize a UK judgment as precluding this adjudication between the parties would be an unfair and unreasonable application of comity.”
Comity refers to reciprocal recognition of one country’s due process protocol by another.
Bredehoft argued at a hearing before Judge Azcarate on July 22 that recognizing the UK judgment will not deny Depp a full and fair opportunity evidentially.
“In fact, Depp had the unique advantage of full discovery not only in the UK but also in the U.S.,” stated Bredehoft, according to the transcript obtained by Legal Newsline. “He had two full years in the UK and 16 months in the U.S…In June of last year, they had already used up all the interrogatories and all of the requests for admissions. Then there also were multiple depositions.”
Chew, Depp’s attorney, did not immediately respond to requests for comment.