Whodunnit? – Wagatha Christie and the importance of credibility
A no holds barred legal battle that started with an infamous social media post finally came to a dramatic and definitive conclusion last week, with a High Court Judge ruling that it really was "… Rebekah Vardy's account".
As the dust settles on a case which has received prominent attention in the media, the judgment illustrates the fundamental importance of disclosure obligations and witness credibility to any Judge who has to assess the strength of the evidence exchanged between the parties before and during a trial.
To quickly recap the background, on 19 October 2019 Coleen Rooney published a post on a number of her social media accounts alleging that Rebekah Vardy had been responsible for leaking certain stories from her private Instagram account to The Sun Newspaper (the Reveal Post). The content of the Reveal Post, and in particular its closing flourish, went viral almost instantaneously due to the celebrity status of both individuals and the salacious nature of the allegations – resulting in Ms Rooney being dubbed with the moniker 'Wagatha Christie'.
Ms Vardy issued her defamation claim on 12 June 2020. By the time the case came to trial almost two years later, there was no dispute that the Reveal Post was defamatory, or that this had caused serious harm to Ms Vardy (although this latter point was only conceded a couple of days before the trial). Ms Rooney's defence therefore rested on two of the statutory defences set out in the Defamation Act 2013 – primarily that the Reveal Post was true; but also that the publication of the Reveal Post was in the public interest.
In defamation claims, the burden of proving that a defamatory statement is true falls upon the defendant. Given that Ms Rooney accepted that she had no direct evidence to prove the substance of the Reveal Post, this might otherwise have been a challenging proposition for her.
However, her defence was bolstered by the Judge's damning assessment of Ms Vardy's credibility as a witness. Amongst numerous other strong criticisms of Ms Vardy, the Judge found that "there were many occasions when her evidence was manifestly inconsistent with the contemporaneous documentary evidence… and others where she was evasive" and also that "Ms Vardy was generally unwilling to make factual concessions, however implausible her evidence".
In stark contrast, the Judge found Ms Rooney to be an honest and reliable witness who "sought to answer the questions she was asked without any evasion, and without conveying any sense that she was giving pre-prepared answers".
The Judge was also highly critical of the suspicious and timely gaps in Ms Vardy's disclosure of documentary evidence – finding that Ms Vardy had deliberately concealed evidence by deleting her WhatsApp conversations with Ms Watt [her agent], and also as a result of Ms Watt dropping her phone in the North Sea (notably only a few days after Ms Vardy had been ordered to provide Ms Watt's phone for inspection). The Judge went further in concluding that the primary reason why Ms Watt was not called as a witness at trial was because "she knew that to a large extent the evidence in her statements was untrue".
In light of the above, the Judge deemed it appropriate to draw adverse inferences from the deliberate deletion of evidence and, having taken into account the cumulative impact of all the other evidence in the case, determined that the Reveal Post was substantially true and therefore dismissed Ms Vardy's claim.
Public Interest Defence
In order to succeed with her "public interest" defence, Ms Rooney had to persuade the Court that:
- the Reveal Post was on a matter of public interest;
- she believed that publishing the Reveal Post was in the public interest; and
- that it was reasonable for her to hold that belief.
Whilst the Judge accepted that Ms Rooney had satisfied the first two conditions above, she did not accept that Ms Rooney's belief was reasonable in all of the circumstances. This was primarily because she did not give Ms Vardy an opportunity to respond to the allegations before publishing the Reveal Post (noting that it did not matter if Ms Rooney had anticipated that Ms Vardy would just deny the allegations).
It seems unlikely Ms Rooney will be concerned about losing her public interest defence given she succeeded in her primary truth defence. Nevertheless, the Judge's comments provide a useful reminder to anyone who intends to rely on a public interest defence that they should take proper steps to verify any allegations they wish to publish, and that for serious allegations, this should include providing the subject with an opportunity to respond.
The outcome of this case could not have gone much worse for Ms Vardy. In deciding to pursue her claim all the way to a trial in order to restore her reputation, she has probably caused far more damage to her reputation than may have originally been caused by the Reveal Post. Not only is it now a matter of public record that Ms Vardy leaked private stories to The Sun, highly embarrassing information about Ms Vardy's conduct was revealed during the course of the trial that had nothing to do with Ms Rooney and might otherwise never have seen the light of day. She will also be facing a very hefty costs bill.
For Ms Rooney, she was placed in a position as a defendant where her only options (other than trying to reach a settlement) were to fight the claim to trial or capitulate entirely. Whilst it has been reported that Ms Rooney made several attempts to settle the claim before it got to trial, it remains to be seen how the Court will take these into account for the purposes of assessing how much Ms Vardy will need to pay towards her legal costs.
As a final note, this case demonstrates the fundamental importance of preserving any relevant documents (including electronic documents) as soon as any litigation is being contemplated, and recognising that this obligation continues for the entire lifecycle of any legal proceedings which may eventually be commenced.- Whilst the vast majority of civil claims do settle before reaching a final trial, this can never be guaranteed. Consequently, the failure to take these disclosure obligations seriously from the outset can be highly prejudicial to a party's prospects of success, as Ms Vardy found to her detriment.