'Wagatha Christie': Vardy v Rooney

On 29 July 2022 judgment was handed down in Rebekah Vardy’s libel claim against Coleen Rooney following a seven-day trial, marking the culmination of the 'Wagatha Christie' saga. Unfortunately for Ms Vardy, the damning judgment did anything but vindicate her reputation after her credibility was called into question by the judge.

Background

Ms Vardy and Ms Rooney are well known media and television personalities and are both married to former-England footballers.

Ms Rooney had become convinced that one of her followers on her private Instagram account was leaking information taken from her posts and stories to The Sun newspaper. She set about trying to determine the source of the leaks and on 9 October 2019 published a post on Twitter, Facebook and her public Instagram account which said it was Ms Vardy.

Ms Vardy issued a libel claim against Ms Rooney on 12 June 2020 with respect to the post. The court had to determine whether the words published by Ms Rooney had caused (or were likely to cause) serious harm to Ms Vardy’s reputation within the meaning of s.1 of the Defamation Act 2013 (the Act). If so, the court then had to decide whether Ms Rooney had a truth defence pursuant to s.2 of the Act and/or a public interest defence to the claim pursuant to s.4 of the 2013 Act.

Meaning

At a preliminary issue hearing on 19 November 2020, Mr Justice Warby was tasked with determining the single, natural and ordinary meaning of the words complained of. This was done with reference to what the words would convey to the hypothetical ‘ordinary reasonable reader’. Warby J determined that the meaning of the words complained of was as follows:

'Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.'

Trial

The matter culminated in a seven-day trial before Mrs Justice Steyn in May 2022.

There was no dispute that the words complained of were defamatory of Ms Vardy. For a publication to be defamatory it must also cause or be likely to cause serious harm to the reputation of the claimant (s.1 of the Act). The judge confirmed that there was no dispute that this condition had been met in this case.

The judge was also satisfied that the words complained of were published to a vast number of people: Ms Rooney’s public Instagram account has around 900,000 followers; her Twitter account around 1,200,000 followers; and her Facebook account about 950,000 followers. The post was ‘liked’ on Instagram 193,284 times and on Twitter 300,000 times.

Since the judge confirmed that the words were defamatory and caused serious harm to Ms Vardy’s reputation, the questions for determination were (i) whether Ms Rooney established a defence to the claim and, if not, (ii) the appropriate quantum of damages.

Defences

Ms Rooney relied on two statutory defences: the defence of truth pursuant to s.2 of the Act and the defence of publication on a matter of public interest pursuant to s.4 of the Act. Whilst Ms Rooney relied on both defences, it was common ground that the key issue was whether Ms Rooney proved the single meaning found by Mr Justice Warby to be substantially true.

Ms Rooney’s primary defence was based on the allegation that the multiple articles which appeared in The Sun resulted from leaks from Ms Rooney’s private Instagram account by Ms Vardy, using her agent, Ms Caroline Watt, as a conduit of the information.

Ms Vardy denied that she leaked any information from the private Instagram account, however she accepted that it was possible that Ms Watt, accessing Ms Rooney’s private Instagram account via Ms Vardy’s own Instagram, may have had some involvement in the articles that appeared to be derived from stories or posts uploaded onto Ms Rooney’s private Instagram account. Ms Vardy said that if that was found to be the case, she denied that she authorised, approved, condoned or knew anything about it.

(a) Truth

Section 2(1) of the Act provides there is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. Truth is an absolute defence to a defamation claim, as a claimant should not be entitled to recover damages for injury to a reputation they did not deserve to have in the first place.

In libel claims, there is a legal presumption in favour of the claimant that a defamatory statement is false, meaning that the burden of proof rested with Ms Rooney to prove her words were substantially true.

In this case, the judge found that it was likely that Ms Watt passed information from Ms Rooney’s private Instagram account to a journalist at The Sun over the course of 2017-2019 and that Ms Vardy knew about and condoned this behaviour. The judge ruled that Ms Vardy was actively engaged in the leaks by directing Ms Watt to the account, sending her screenshots of Ms Rooney’s posts, drawing her attention to items of potential interest to the press, and answering additional queries raised by the press via Ms Watt. This was suffice to show that the single meaning found by Mr Justice Warby was substantially true.

Whilst the judge accepted that Ms Vardy was not responsible for every source story about Ms Rooney in the press, this was not Ms Rooney’s case. The fact that Ms Vardy and Ms Watt believed someone else was providing information about Ms Rooney did not negate the evidence that they were also doing so.

Whilst the judge noted that the information disclosed was not confidential and could be described as trivial, it did not need to be confidential or important to meet the sting of the libel. It was sufficient that the information derived from private posts that Ms Rooney did not want made public. The fact that some of the information posted by Ms Rooney was fabricated in order to catch the person responsible for leaking her information did not detract from the conclusion that the essential sting of the libel was true.

As truth is an absolute defence to a libel claim, the judge’s finding meant that Ms Vardy’s claim was dismissed in its entirety.

(b) Public interest

In circumstances where Ms Rooney’s truth defence was dispositive of the case, the judge dealt with the secondary, public interest defence very briefly.

In order to satisfy the public interest defence outlined at section 4 of the Act, Ms Rooney needed positively answer three questions:

i) Was the statement complained of a matter of public interest, or did it form part of such a statement?

ii) If so, did the defendant believe that publishing the statement complained of was in the public interest?

iii) If so, was that belief reasonable?

As to the first question, the judge accepted that the words were on a matter of public interest, namely the undesirable practice of gossip about celebrities’ private lives being disclosed to the press by trusted individuals. As to the second question, the judge also accepted that Ms Rooney believed, having given several warnings that she suspected someone of leaking her information, that it was in the public interest to publish the words.

However, as to the third question, the judge found that it was not reasonable for Ms Rooney to have published the words without taking any steps to put the allegation to Ms Vardy and give her an opportunity to respond. However in the end this made no difference as the truth defence was dispositive of the entire claim.

Evidence

Witnesses

The judgment is particularly interesting to examine in terms of its commentary on the veracity of evidence given, particularly by the claimant, and serves as a salient reminder for those embroiled in litigation as to the importance of witness credibility.

The judge found it necessary to treat Ms Vardy’s evidence with 'very considerable caution', noting that there were many occasions when her evidence was manifestly inconsistent with the contemporaneous documentary evidence and others where she was evasive.

The judge noted that Ms Vardy was generally unwilling to make factual concessions, however implausible her evidence, affected her overall credibility.

Whilst the judge accepted that Ms Vardy was genuinely offended by Ms Rooney’s words, she said that her indignation stemmed from a degree of self-deception regarding the extent to which she was involved, as well as a degree of (justified) resentment at the exaggerated way in which her role had at times been presented during the litigation.

Significantly for the case, Ms Vardy did not call Ms Watt as a witness. The judge viewed Ms Watt as a vital witness whose absence at trial was striking. She concluded that the primary reason for her absence was that she knew that to a large extent her evidence was untrue.

In comparison, the judge viewed Ms Rooney as an honest and reliable witness who sought to answer the questions she was asked without any evasion. Her evidence was consistent with the contemporaneous evidence and with the evidence given by her witnesses. Her evidence was found to be clear and compelling.

Missing evidence

Notably, WhatsApp exchanges between Ms Vardy and Ms Watt during the period when Ms Vardy followed Ms Rooney’s private Instagram account were all missing from the attached media files that they sent each other (including any screenshots or other images, videos and voicemail messages). In addition, only a text file export of their Whatsapp exchanges was available: the messages in their original form were unavailable. Consequently, it was not possible to tell whether any messages (other than the media files) were missing. Ms Vardy said that this was due to a computer malfunction; Ms Rooney claimed that the deletion was deliberate.

The judge thought it improbable that a computer malfunction would have resulted in the deletion of the WhatsApp chat between Ms Vardy and Ms Watt, particularly while Ms Vardy’s WhatsApp exchanges with others were (at least in part) retained.

In considering whether the data loss was deliberate, the judge also determined it pertinent that Ms Vardy disposed of the laptop onto which the text file export was said to have been downloaded 'because it had been damaged beyond repair'. The consequence of this was that it could not be forensically examined by the experts. The judge took a very dim view of this, ruling it likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt.

Another piece of missing evidence was Ms Watt’s mobile phone, which was said to have been lost at sea in August 2021. The timing of this was very interesting: on 4 August 2021 a court order was made requiring inspection of her phone. The judge determined that the likelihood that the loss was accidental was slim and that Ms Watt deliberately dropped her phone in the sea.

Comment

This is an example of one of this year’s most high-profile libel cases backfiring spectacularly on the claimant: what was meant to vindicate Ms Vardy’s reputation has in fact left her facing damning judicial criticism. The judge’s comments as to the deliberate destruction of evidence make for uneasy reading, so too do the comments regarding Ms Vardy’s 'manifestly inconsistent' and 'evasive' witness testimony. The judgment marks the end in a very bitter and expensive battle: it is estimated that the total costs bill for both sides will be around £3 million.