Summary
In our latest episode of Law Behind the Headlines podcasts, Associate, Emma Cartwright, and Partner, Peter Wake, host a second podcast covering the infamous Wagatha Christie litigation and consider the outcome of the case and consider which of the litigation lessons analysed in episode one featured in the final reckoning and why.
Transcript
Emma Cartwright: Hello, and welcome to the latest episode of our Law Behind the Headlines podcast series.
Emma: I'm Emma Cartwright, an Associate at Weightmans, specialising in occupational stress and harassment claims. I'm joined again today by Peter Wake, a Partner in our litigation team who specialises in data and privacy litigation.
Emma: This is episode two of Weightmans' podcast in respect of the Wagatha Christie saga. Listeners may recall that in the first episode, which went out after the trial, but before the judgment, we analysed the number of court skirmishes leading up to the High Court trial and considered how they provided lesson-learning guidance on some common litigation pitfalls and challenges.
Emma: We now have the judgment, which was a resounding win for Mrs Rooney, who, as listeners will recall, had been sued for defamation after alleging on social media that Mrs Vardy had leaked her private stories to the press.
Emma: So, Pete, what are we going to talk about today?
Peter Wake: Thank you, Emma and hello to our listeners. Well, when we put out the first podcast, the decision of the high court judge who heard the case, Mrs Justice Steyn, was eagerly awaited after a fractious and somewhat salacious eight day trial that was widely reported in the press.
Peter: It was always our intention to put out a follow-up episode, taking a look at the outcome of the case, and in particular, whether any of the specific legal and procedural issues that we considered in episode one would end up featuring in the final decision of the court and obviously, if it did or if they did, how and why? So that's what we're going to cover today.
Emma: So as a reminder, in our previous podcast, we covered eight key issues in total, and those were:
- disclosure;
- redaction;
- the preservation of evidence;
- witness statements and witness summaries;
- Part 20 claims against third parties;
- the collateral use of documents; and
- witness credibility in general.
Peter: Yep, Emma that covers the points we touched on last time. Hopefully, for your sake, you didn't have to relisten to our first episode to remind yourself of that. But not all of those topics featured prominently in the judgment. The ones that did feature prominently were:
- inadequate disclosure;
- preservation of evidence; and
- the issue of witness credibility.
Peter: So those are the topics that we're going to be focusing on today.
Emma: Brilliant, so before we get into the hot legal topics coming out of the trial, it would be worth summarising the case and the outcome. As I said at the outset, Vardy was the claimant and Rooney was the defendant.
Emma: Vardy sued Rooney for defamation after Rooney posted on her social media accounts that Vardy had leaked private information and stories from Rooney's private Instagram account to the press.
Emma: It was accepted by the court that the relevant posts were defamatory of Vardy and caused her serious harm. But Rooney defended the case on the basis that her posts were true.
Peter: Yes, that's right, Emma, and just to add to that, since it was accepted that the posts were defamatory and that they caused Mrs Vardy serious harm, the burden was on Mrs Rooney to prove her defense of truth.
Peter: In a nutshell, what she needed to establish on a balance of probabilities was that what she'd accused Vardy of was true or substantially true. This is sometimes referred to in defamation cases as proving the sting of the libel.
Emma: Yeah, and based on the widely reported judgment, we know that Rooney did successfully prove it was true or substantially true that Vardy had leaked her private social media stories to the press.
Peter: Correct. The judge was satisfied that it was more likely than not that Vardy's agent, people may remember Caroline Watt, had leaked Rooney's private Instagram stories to the press, and this was known by or condoned by Mrs vardy, and that was sufficient for Mrs Rooney to establish her defense truth and, therefore, to succeed and defeat the claim against her.
Emma: So returning to the issues for today, I think the first thing you wanted to look at was the lost evidence in this case, and specifically the WhatsApp messages between Vardy and Caroline Watt that were no longer available.
Emma: Listeners may recall that Vardy had an IT issue, meaning that all the media attached to the messages were lost. This issue occurred, the IT issue that is, during the course of the litigation.
Peter: Yeah, so Rebekah Vardy was unable to supply through the course of disclosure the complete WhatsApp messages to include videos, photographs and screenshots that were missing from the messages. And the evidence that she gave on this to the court was that in the process of exporting the entire WhatsApp chat, the images, videos and audio files were lost.
Peter: And this was something that the digital forensic expert for the defense had described as somewhat surprising.
Emma: So did this feature in the judgment, Pete?
Peter: Yeah, it was an issue that absolutely featured in the judgment, Emma, as I'm sure you won't be too surprised to hear.
Peter: The judge held that it was highly likely that Mrs Vardy deliberately deleted the WhatsApp chat with Caroline Watt and the reason she reached that conclusion, the reason she thought that Mrs Vardy had done that, was because the messages were likely to be incriminating.
Peter: So this conclusion by the judge underscored many of the other issues in the case because it allowed the judge to draw what's known as adverse inferences in respect of Vardy's evidence as a whole.
Emma: Right and just before we consider what some of those adverse inferences were, there were, of course, two parties to the exchange of these WhatsApp messages.
Emma: Listeners may remember that Ms Watt's phone was said to have been lost when she accidentally dropped it into the sea whilst on holiday. This was after the court had directed her that the evidence in the form of the messages on her phone needed to be preserved and searched.
Peter: Yes, that's absolutely right. And as far as the judge was concerned, the fact that both Vardy and Watt lost messages from a key period was much more than just an unhappy coincidence.
Peter: The judge basically concluded that the loss of the phone was deliberate and taking Mrs Vardy and Ms Watt's explanations together, the court was of the view that the improbability of them being truthful was heightened by the fact that it took the combination of these improbable events for the key evidence to become unavailable.
Emma: Yeah, again, perhaps not all that surprising. You mentioned that this allowed the court to draw adverse inferences. Is that something you can expand on?
Peter: Yeah adverse inferences. So in a nutshell, what that means is that in appropriate circumstances, the court is entitled to draw an adverse inference.
Peter: What that basically is, is effectively a negative conclusion. Where a party has failed to disclose documentary evidence, for example, or here, where the court finds that it's been deliberately destroyed, a negative conclusion can be drawn on that issue and also how it feeds into other issues.
Peter: So examples of that in this case were where there was no clear evidence, for example, that Vardy or Watt had revealed the specific story — there wasn't anything directly on point, for example, in certain circumstances — the judge's conclusion, nonetheless, was that evidence had been destroyed, and that allowed her to draw an inference that Mrs Vardy and Ms Watt together leaked more information from the private Instagram account of Mrs Rooney than just the eight posts, which were featuring and which there was evidence about.
Emma: Right so the take home is the importance of ensuring key evidence is preserved. If it is not preserved, the explanation given for the loss of the evidence needs to be a reasonable one. And here, we have a situation where the reasons why the evidence was not available were difficult to accept by the judge as they were so unlikely to have happened to both Vardy and Watt and to the key evidence that was required in the case.
Emma: So moving on from that, you mentioned in addition to limiting disclosure, adverse inferences can also apply to failure to produce witness evidence. And that leads us on quite nicely to the absence of Ms Watt as a witness at trial.
Emma: So what was the impact of such a key witness not being called to give evidence?
Peter: This turned out to be really quite an important point. It wasn't just the fact that she did not appear at court at the trial as a witness, but also the chronology of events that led to her absence.
Peter: So Ms Watt originally provided a witness statement denying that she was responsible for leaking the information, but as the case got nearer and nearer to trial, Ms Watt said that she wasn't well enough to attend, that it was taking a toll on her health. And, therefore, Mrs Vardy sought to rely on her statement as hearsay evidence, in other words, evidence in written form, but without the witness turning up to provide oral evidence at trial.
Peter: But then there was another turn of events when Ms Watt actually confirmed she wanted to withdraw her witness statement and Mrs Vardy agreed to this and abandoned her application to even rely on Watt's statement as hearsay evidence.
Emma: So basically, Ms Watt gave crucial evidence in written form, but then withdrew it, taking it back effectively.
Peter: Yeah that's probably a better and more concise way of putting it, Emma.
Emma: What did the judge make of that?
Peter: Well, again, the judge was seemingly not all that impressed. She concluded that the primary reason Ms Watt was reluctant to give evidence was because she knew that the evidence in her statement was untrue.
Peter: Additionally, the judge formed the view that Mrs Vardy's decision not to call Ms Watt as a witness, whilst to some degree motivated by concern for Ms Watt's health and welfare, was also because she knew that Ms Watt's evidence would be shown to be untrue at trial and would therefore, ultimately have undermined her case.
Emma: All in all then, this is not a case that went well for Vardy. And as is often the case when something is looked through the prism of defeat, it does rather beg the question rather like the Depp and Heard defamation claim that Mr Depp lost in the UK, why the initial claim was brought in the first place.
Peter: Yeah, I think that's a fair question and it's often something that's asked when someone loses a case, or appears to resoundingly lose a case.
Peter: The only thing I would say is that there's always more to things than can be simply ascertained from the final judgment. So if you actually look at Mrs Vardy's case in simple terms and at first glance, it was a situation where a serious defamatory allegation had been made against her that was initially based solely on Mrs Rooney's activities as an amateur sleuth.
Peter: And it was also clear that the consequence of the defamatory post was that it had significant implications for Mrs Vardy — she was the victim of online abuse after the post was made, accusing her of leaking private information.
Peter: It also seems that attempts were made by Mrs Rooney to settle the claim in its early stages. It may be that it was only when the case got into the weeds of formal court proceedings, forensic electronic disclosure searches and queries, and the challenge, of course, of witness evidence that things started to look rather bleaker for Mrs Vardy as a claimant.
Emma: So I think that concludes the Wagatha journey for now, at least, with Vardy confirming she'll not appeal the outcome of the trial quite recently.
Emma: It is, though, not the end for the protagonists, as news reports suggest that Rooney has signed a deal with Disney for a documentary on the case and Vardy is also in talks in relation to behind the scenes documentary about the trial. Have you got any final observations, Peter, before we conclude?
Peter: Yeah just a couple of things I think, Emma, which are generic to litigation really.
Peter: So firstly, I think it's a solid salutary reminder that litigation is not for the faint hearted and should really always be a last resort. As we've seen here in this case, what starts off potentially looking like quite a promising case can deteriorate as litigation progresses and the formalities of disclosure and witness evidence really kick in.
Peter: I think the second point is that it really does reinforce that the court's impression, that judge's impression, of a party's credibility is often a critical factor in determining the outcome of a case, particularly one that is very specific.
Peter: So in this case, the High Court judge found Mrs Rooney, to be honest, reliable and a witness who answered questions without any evasion.
Peter: By contrast, Mrs Vardy was seen to be a witness whose evidence had to be treated with very considerable caution, and the judge often felt that her evidence was somewhat implausible and inconsistent with the documentary evidence.
Peter: And this in itself, this key point of credibility may have been enough for Mrs Rooney to prevail, even without the theatre of the other issues that we've discussed.
Emma: It's very interesting, Pete, and as a final thought and perhaps, dare I say, another episode, we've not heard any news about the costs of this litigation, particularly the costs of Rooney's that will need to be paid by Vardy.
Emma: We're not privy to exactly what settlement attempts Rooney made, but it may be that she's entitled to enhanced costs if the court determines that Vardy unreasonably refused or rebuffed settlement proposals.
Emma: I think all of that remains to be seen. But for now, that's all from me and Pete in relation to the Wagatha saga. But if anybody has any questions, they can get in touch. And it's something that we're more than willing to reopen in future.
Peter: Yeah thanks, Emma, and thanks to everyone for listening.