Summary
In our latest episode of 'Law behind the headlines' podcasts, Associate, Emma Cartwright, and Partner, Peter Wake, take a deeper dive into the defamation claim brought by Rebekah Vardy against Coleen Rooney, the trial of which took place over seven days in May this year and with the judgment eagerly awaited by legal and celebrity commentators alike.
Transcript
Emma Cartwright: Hello, and welcome to the latest episode of our Law Behind the Headlines podcast series, I'm Emma Cartwright, an Associate at Weightmans, specialising in occupational stress and harassment claims.
Emma: I'm joined today by Peter Wake, a Partner in our litigation team who specialises in data and privacy litigation.
Emma: Today, we're going to take a deeper dive into the defamation claim brought by Rebekah Vardy against Coleen Rooney, the trial of which took place over seven days in May this year.
Emma: With the judgment eagerly awaited by legal and celebrity commentators alike, the case has been widely referred to as the Wagatha Christie saga and has attracted a huge amount of press interest domestically since the now infamous Twitter and Instagram posts by Coleen Rooney in October 2019.
Reading of Coleen Rooney's social media post: For a few years now, someone I trusted to follow me on my personal Instagram account has been consistently informing the Sun newspaper of my private posts and stories. There has been so much information given to them about me, my friends and my family, all without my permission or knowledge. After a long time trying of to figure out who it could be for various reasons, I had a suspicion.
Reading of Coleen Rooney's social media post: To try and prove this, I came up with an idea. I blocked everyone from viewing my Instagram stories, except one account. Those on my private account must have been wondering why I haven't had stories on there for a while. Over the past five months, I have posted a series of false stories to see if they made their way into the Sun newspaper. And you know, what they did?
Reading of Coleen Rooney's social media post: The story about gender selection in Mexico, the story about returning to TV, and then the latest story about the basement flooding in my new house. It's been tough keeping it to myself and not making any comment at all, especially when the stories have been leaked. However, I had to. Now I know for certain which individual's account it has come from.
Reading of Coleen Rooney's social media post: I have saved and screenshotted all the original stories which clearly show just one person has viewed them. It's Rebekah Vardy's account.
Emma: Vardy strongly denied being the leaker and there followed a period where tabloid journalists, WAGs and talk show hosts alike weighed in with their respective viewpoints until Vardy issued court proceedings for defamation in June 2020.
Emma: The progress of the case has been hotly reported on since in the tabloids up to the trial itself in early May this year.
Emma: Behind the salacious tabloid headlines, however, the numerous court skirmishes leading up to the trial itself involved some common litigation challenges and pitfalls, and there are lessons to be learned for solicitors and clients alike.
Emma: So, let's get into the detail. Peter, can you provide an overview of the case in defamation to set the scene?
Peter Wake: Of course. Thank you, Emma and hello to our listeners.
Peter: So, as you say, Mrs Vardy promptly, at least in legal and litigation terms, sued Coleen for defamation. There was a preliminary hearing on the issue of meaning, but both parties accepted that the words were defamatory of Vardy.
Peter: Coleen's defence to the claim is that what she posted was true. To successfully defend the claim, she, therefore, has to prove that the statement that she made was true or substantially true.
Peter: In some respects, therefore, a relatively simple factual dispute to resolve a very costly piece of litigation.
Peter: But as you said in the introduction, Emma, we aren't focusing so much on the deformation issue, but rather all the procedural matters that occurred en route to the final trial.
Peter: With that in mind, and just as a final point, by way of scene-setting, the other protagonist features prominently in this saga, and also in some of the issues that we're going to discuss, is Mrs Vardy's agent, a Caroline Watt.
Peter: Ms Watt was late to the cast but quickly became a person of key interest and an important protagonist in the case as a whole.
Emma: Thanks, Pete. One broadsheet newspaper described the trial as high drama with the lowest stakes. And I can certainly understand why this dispute involving high-profile protagonists has caught the interest of the press and the public.
Emma: But given that we don't even have an outcome or a verdict, as the press like to inaccurately describe it, how can the case provide the litigation lessons that we have promised our listeners?
Peter: That's a good question, Emma and as is often the case in fiercely contested litigation, especially litigation involving very wealthy parties, the answer lies in the hearings that took place before the parties even got to trial.
Peter: Coleen's Instagram and Twitter posts were in October 2019 and the court proceedings were issued in June 2020.
Peter: Between that date and the trial in May 2022, there were no less than six hearings, commonly known as interlocutory hearings, and they dealt with a range of issues.
Peter: The fact that so many interim hearings took place, that in itself is an indication of the robust and sometimes aggressive approach to the litigation by both parties and their legal representatives.
Peter: The frequent court hearings generated more drama and inches in the tabloids but some of the hearings dealt with matters specific to the law of defamation, for example, the specific legal meaning of the defamatory post.
Peter: But others were classic and hotly contested legal and procedural issues that are of more general application.
Peter: Those issues include disclosure, use of documents, Part 20, or additional claims, witness statements, and the often misunderstood and improper use of witness summaries and also disclosure from third parties who are not directly involved in the litigation.
Emma: Brilliant, but to be honest, Pete, this isn't so nearly as exciting as the Wagatha Christie headlines suggest. Or, for that matter, as interesting as the carefully constructed sting operation by Mrs Rooney.
Peter: Yeah I can't disagree with that observation, Emma, but what I'm hoping for, what we're hoping for is that whilst what we're talking about here isn't quite as exciting, it may actually be of some practical benefit to listeners.
Emma: Well, let's hope so, Pete. Otherwise, no one will subscribe to our podcast series Law Behind the headlines!
Emma: Having followed the progress of the litigation myself, what I'm interested in hearing is your opinions on the light this case sheds on disclosure between the parties in any litigation and also the preservation of evidence.
Emma: For any newcomers to the law, disclosure means the provision of documents, and that can be media, paper or otherwise in document form that are relevant to the case
Emma: Here, in relation to the Wagatha case, we are talking about contents of messages passing between various parties.
Peter: Yeah, so firstly, in relation to the preservation of evidence, Emma,the two issues featured prominently in full hearing before the trial. That hearing took place in February this year.
Peter: The first was that the claimant, Mrs Vardy's, disclosure of her WhatsApp communications between her and her agent, Ms Watt, were missing any images or audio files. Even though it was clear that such files existed or at least had existed. The evidence provided on this was that in the process of exporting the entire WhatsApp chat, the images, videos and audio files were lost.
Peter: This was something that the digital forensics expert for the defence described as 'somewhat surprising'.
Peter: The second issue related to Ms Watt, specifically.
Peter: Following a directions hearing, the judge confirmed that Ms Watt's phone would have to be analysed and Mrs Vardy's solicitors informed Ms Watt of this.
Peter: That same month whilst on holiday, and specifically on a boat trip on that holiday, Ms Watt contends that her boat hit a wave and the phone dropped into the bottom of the sea.
Peter: It was this incident that led Mrs Rooney's barrister at trial to suggest to Mrs Vardy, that important evidence was buried in Davy Jones's locker. Mrs Vardy was rather unfairly mocked in the press for replying with 'who is Davy Jones?'
Peter: But jokes aside, cruel or otherwise, there's an obvious, shall we say, concern that a phone was lost in these circumstances, and after the court had directed that it needed to be analysed as part of the evidence in the case
Peter: The relevance of this lost evidence issue to the judge's thinking and specifically her view on credibility is only likely to be known when the final judgment is available and the judge has analysed all the evidence in the case.
Peter: But experience of litigation and also of judicial thinking is that the loss of or destruction of potentially important evidence without adequate explanation is rarely looked on favourably when it comes to witness credibility as a whole.
Emma: I think that's right, Pete. So a lesson here is that it's not just the contents of a document or phone or other source of relevant disclosure and evidence that's important, it's potentially also the steps you take or you don't take to preserve our keep that item safe once you become aware of it's relevant.
Emma: Another point of interest from my perspective is the redaction of certain documents disclosed as part of the litigation.
Emma: Again, for anyone who's new to litigation, redaction means simply striking out certain parts of a document. Usually parts that include personal data, such as phone numbers and email addresses that are not relevant to the matter at hand.
Emma: The redaction means that this data can't be read or seen by others.
Peter: Yeah, that's right. So disclosure and the ever-knotty issue of redaction.
Peter: So Mrs Vardy's disclosure included copies of social media communications where certain passages had been redacted. As you say, that means they're struck out so the other party can't see them and nor can anyone else.
Peter: The redaction was completed using software that had not been correctly used, and what this meant was that the redaction was ineffective and Mrs Rooney's lawyers, when they received this disclosure, could see the material that Mrs Vardy's lawyers had sought to redact.
Peter: Their view, and the court agreed with them, was that the redaction was inappropriate and it obscured information that was relevant to the issues in dispute between the parties.
Peter: The court, therefore, made an order for a specific disclosure, namely disclosure of the relevant documents and messages in unredacted form.
Peter: I think there's two points to take from this.
Peter: Firstly, there's the crucial importance of effective redaction. Actually, in this case, the ineffective redaction was helpful to the court as it confirmed that further disclosure was required because the redaction was not justified.
Peter: But in a more general sense, and assuming redaction is necessary — for example, for the removal of highly sensitive information or the identity of a third party — ineffective redaction can create really significant problems to include data protection issues, confidentiality issues and human rights issues.
Peter: And in fact, there have been a couple of recent cases in which local authorities and police forces have had to apply for injunctions to prevent the unlawful use of information that had been ineffectively redacted.
Peter: I think the second point here is the extent of a party's disclosure obligations. Mrs Vardy's lawyers had taken what was described as an inappropriately narrow view of the disclosure test in Part 31 of the CPR.
Peter: In effect, they decided that they could redact because the information was irrelevant, whereas the court's view was that the information they had redacted was plainly relevant to the issues in dispute in the claim.
Peter: All of this, rather, begs the question of what would have happened if the redaction had been effective and Mrs Rooney's lawyers had been none the wiser as to the inadequate disclosure. However, that's just something of an unknown, and we can't speculate on that.
Emma: Ok, Pete. It would be an unknown, but I wonder if in general terms if something that was inappropriately redacted after a trial that the parties weren't aware of surfaced after the judgment that could be grounds for appeal if the redaction had a bearing on any of the material issues. But that's something that we don't know.
Emma: Moving on from the disclosure issues. The February 2020 hearing didn't just cover evidence, disclosure and redaction, there was another issue before the court.
Emma: Namely, that Mrs Rooney was attempting to add a claim against the often referred to Caroline Watt, the agent of Mrs Vardy, to the deformation proceedings as an additional defendant.
Peter: That's exactly right, Emma. What Mrs Rooney wanted to do was she wanted to add the claim that she was bringing against Ms Watt — the data breach claim and a misuse of private information claim — she wanted to add that to the defamation proceedings that were ongoing between herself and Mrs Vardy, and then she wanted the court to resolve it all at the same time.
Peter: The judge, Mrs Justice Steyn refused Coleen's application to add this claim against Ms Watt to the main action. And there are two main learning points from the way that the judge dealt with this issue.
Peter: The first relates to the procedural requirements for a Part 20 claim, and the second is on an issue that we'll describe as the collateral use of documents.
Peter: So taking the first point, adding the Part 20 claim to the main action and trying to have it resolved at the trial of the main action. In short, the judge said it was all too late in the day.
Peter: As a matter of generality, a defendant to a claim can bring an additional claim, a Part 20 claim, without the court's permission if it's issued at the same time as the defendant serves its defence in the main action. But after that, the permission of the court is required.
Peter: And it's also expected that anyone wanting to bring the Part 20 claim will comply with the pre-action protocol.
Peter: There was no protocol compliance here, and the application to add the claim against Ms Watt the main action was being made just three months before the trial was listed in Vardy against Rooney, so that would have required the Vardy and Rooney trial to be adjourned, something courts are generally very reluctant to do.
Peter: The second point is probably a little bit more nuanced and potentially more interesting and it goes to this collateral use of documents. It's a really important one, and it's often overlooked by parties to litigation and also sometimes legal representatives.
Peter: As a general rule, under Part 31 of the CPR, documents disclosed in civil litigation can only be used for the purpose of those proceedings.
Peter: What had happened here was that the defendant, Mrs Rooney, had used the documents disclosed by Mrs Vardy in the Vardy Rooney litigation to prepare the draft claim against Ms Watt.
Peter: This was a new and separate claim to the one that was ongoing and using the documents in this way, as we said, a collateral use of documents is formally prohibited by Rule 31.22 of the CPR. Unless, broadly speaking, the parties agree or the permission of the court is obtained.
Peter: And ordinarily, if you're going to secure that permission, it should be secured in advance of the documents being used rather than sought retrospectively once you already use the documents, as was the case here with Rooney.
Peter: So a party needs to be really cautious in terms of how it uses documents that are disclosed within litigation. It's often wrongly assumed that disclosure is sort of broadly unregulated and that any documents disclosed can be used for other purposes. This is manifestly not the case. As Rooney's legal team discovered to their detriment in the issue that we've just discussed.
Peter: It will be really interesting to see whether Rooney continues with the claim against Ms Watt, depending on what happens in the outcome of the Rooney litigation.
Emma: Thanks, Pete. That is really interesting and I think it's one that we can keep an eye on and wait and see.
Emma: There's a final procedural issue that I think you wanted to share, which is the use of witness summaries in compliance with these Civil Procedure Rules.
Peter: Yeah, thanks, Emma. This is the final thing that we're going to touch on.
Peter: It's a bit similar to the collateral use of documents point in the sense that it's rather misunderstood in my experience.
Peter: And it came before the court in this litigation just a few weeks before the trial, when Vardy had to apply to the court for what's called relief from sanctions in order to rely on witness summaries that had been served.
Peter: What is a witness summary? Well, in simple terms, a party may want to use a witness summary rather than a formal statement when it wants to call a witness at trial but it hasn't been able to obtain a statement from that witness.
Peter: The summary, the witness summary, sets out either the evidence which would otherwise be in a statement, if you could have got a statement, or if that evidence is not known, the matters which the witness will be questioned on.
Peter: So serving a witness summary is often a precursor to that witness being summonsed to attend court.
Peter: The common error that's made, as was the case here, is that a witness summary is simply served in accordance with direction, court direction for exchange statements, generally.
Peter: This is not the correct approach.
Peter: Again, we go back to the CPR. Rule 32.9 makes it absolutely clear that court permission is needed to serve a witness summary and secondly, the summary must be served in accordance with the direction, the statements.
Peter: So it follows that permission has to be secured before service and to secure the permission, there should be evidence of why the party is unable to obtain a statement in a more traditional form.
Peter: The fundamental importance of complying with these rules is confirmed by the sanction attaches for non-compliance, namely the inability to call the witness to give evidence unless the court gives permission.
Peter: So for obvious reasons, failure to comply with the relevant procedure rules can have a dramatic and adverse impact on a party's case if it shuts out crucial witness evidence.
Emma: Thanks, Pete. I agree. Thanks for all the information you shared as part of the podcast. I particularly enjoyed your passion in respect of the procedural irregularities. Hopefully the listeners did as well.
Emma: I think I speak for us both when I say we await the judgment on Vardy and Rooney with interest. Certainly no one will miss it, as it will appear on almost every newspaper front page.
Emma: It will be intriguing to see if any of the procedural issues we've discussed feature in the judgment and whether they do or don't, I suspect there'll be plenty of subject matter for a further podcast on the case.
Peter: Many thanks, Emma, and thanks to all our listeners.
Emma: Yeah, thanks a lot, everyone. And if you enjoyed our podcast, please subscribe or listen to more in the series of Law Behind the Headlines.