Jeffrey Smele, Simons Muirhead Burton

The turmoil and smut of real life Hollywood played out in London’s High Court over 2020, in a high-profile libel case brought by Johnny Depp over a newspaper article in The Sun which labelled him a “wife-beater”.

Depp and Amber Heard’s acrimonious separation and aftermath had attracted global press attention, wound up in allegations of domestic violence. This libel trial was one of the most reported entertainment industry stories of the last few years.

Pulling the strings behind the scenes for News Group Newspapers Ltd (NGN), publisher of The Sun and journalist Dan Wootton, was Simons Muirhead Burtons’ (SMB) media and communications disputes team. Lead associate Jeffrey Smele, who joined SMB as a property paralegal at the end of 2005 and qualified at the firm in 2008, worked as part of the team alongside head of media Louis Charalambous. Having been promoted to partner midway through the case in 2019, Smele now co-heads SMB’s department and advises The Sun and other print and online media clients on defamation, privacy, data protection, regulation, contempt and confidentiality issues.

For Smele, who wanted to be a media lawyer since university before completing work experience in the legal departments of newspapers, it was the perfect case to cut his teeth on. He says that Anthony Burton, one of SMB’s founding partners who trained him as a criminal lawyer, taught him what you can achieve with the right proactive mindset: “It’s all too easy to say that something is not possible, too difficult or won’t work, but that never washed with him and has served me well. It’ a lesson I try and pass on to our trainees.”

He also credits Charalambous: “I’ve worked with him on countless cases and never seen him lose his cool or be pushed around by the other side. He has a case strategy from minute one, knows how to get the best out of a team, and things normally play out just as he predicted.”

Smele was responsible for the overall running of the libel case alongside counsel – he had a key role in strategy and drafting, especially on disclosure and witness evidence – of which there ended up being thousands of pages all in a substantial trial bundle. This was largely through tenacious efforts on his part analysing and pursuing disclosure from Depp, including repeated successful applications for specific disclosure, resulting in various orders compelling Depp to locate and disclose material that ultimately proved crucial for the defence.

“Although some people saw this as just a Hollywood drama or soap opera (and I’m a film fan myself), there were significant free speech issues at play, especially in the context of the serious issue of domestic violence and the ability of the powerful to seek to control the narrative,” argues Smele. “We all worked incredibly hard on the case and the outcome was a vindication of that. Our main witness, Amber Heard, did brilliantly and it was great to work with her throughout and get the right result.”

The trial success rate for defendant publishers – especially tabloids – is notoriously low. Even if a publisher believes it has a strong defence, it is often more commercially effective to seek a settlement. Not only was Depp claiming a substantial six figure sum in damages, but as always costs were a huge issue. Depp used (in his own lawyer’s words) a “kitchen sink approach”, deploying a solicitor team twice the size of SMB’s. Shortly before trial they applied (unsuccessfully) to increase their costs budget by over £1.5m. Smele notes that though SMB had a relatively small (for a case of this size) team, it meant things were done quickly and efficiently.

“Everyone had a dedicated role with their individual responsibilities, and there was trust across all levels of seniority. That made for an excellent, collaborative work environment despite the moments of pressure. We couldn’t have worked better as a team, which really feeds back to the SMB culture and way of working.”

The defence open to the newspaper was one of truth: it had to prove that the allegation it published – that Depp was a wife beater – was true. Although this was a civil claim where Depp was the claimant, SMB ran the defence as if this were a criminal case: with NGN effectively taking the role of the prosecution, so making Depp the defendant in a trial where his behaviour, rather than the newspaper’s, came under most scrutiny.

When preparing the initial version of the defence, material was limited to legal documents from the Depp/Heard divorce in 2017 – very sparse information, meaning the team started in a difficult position. This changed when dialogue began with Heard’s US lawyers, done through contacts of SMB’s in the entertainment industry. This was a turning point, and through careful negotiation with the US lawyers, access was given to documents that Heard had introduced in her US libel claim (where Depp was suing her personally over an article in another publication), then access to Amber and her circle.

Smele explains: “Although this was a civil trial, we really ran it as a criminal case because under libel rules the burden was on us to prove the allegations of violence were true. So it wasn’t a matter of any complex legal arguments – we had to ensure that we assembled the most convincing case possible, through documents and witnesses. This was challenging but we were able to draw on our team’s criminal experience, which I think gave us an advantage compared to other media disputes teams. We decided to instruct a criminal silk (Sasha Wass QC, who was fantastic) to focus on cross examining Depp: a strategy that paid off.”

The key witnesses were all based in the US (or elsewhere abroad) which came with obvious challenges. Some needed to be subpoenaed so SMB used an LA-based lawyer contact for that process. Matters were of course exacerbated by the pandemic, particularly when it came to witness travel and having to self-isolate. A lot of it ended up being done by video link, which itself took a great deal of organisation, and there were strict rules including that the bundles in the witness rooms needed to be sanitised after each use.

The trial took place over three weeks in July, and delivered a 129 page judgment in November 2020. It was a resounding victory for NGN and Wootton, with the judge ruling that (on the balance of probabilities, the civil burden of proof) 12 of the 14 pleaded incidents of violence had occurred. It was a vindication for the clients and the legal team, who had recommended that the case be fought and not settled, as well as for Heard whose evidence the judge believed (in contrast to Mr Depp’s).

Looking back from this career high, Smele says that he has been very lucky to work on some fantastic and high profile claims with great teams and clients.

He recalls: “I was one of the team acting for Bristol landlord Christopher Jefferies in his libel claim against eight national newspapers around allegations of the murder of his tenant Joanna Yeates. Before that, I worked on Madeleine McCann suspect Robert Murat’s libel claims involving over a hundred articles across eleven newspapers. We also represented a university tutor against two newspapers in one of the last jury trials to be heard in a libel claim.

“In my early years I did a fair amount of criminal work too, and that has stood me in good stead for my career. I learned a lot about dealing with pressure, thinking creatively for legal detective work, and always pursing every angle – because people’s liberty is at stake and they are relying on you to do the best job you can.”