Vardy 0 – 1 Rooney: Wagatha Christie solved at last

1 August 2022 by Shaheen Rahman

The judgment in Vardy v Rooney [2022] EWHC 2017 can be found HERE.

The case was a game of two other halves – Coleen Rooney, wife of Wayne, and Rebekah Vardy, wife of Jamie. Steyn J’s judgment left Rooney and her legal team punching the air and dousing themselves in champagne whilst Vardy cradled herself at the side of the pitch, reflecting on the moment she stepped up to take the stand, a moment that will give her nightmares for years. To be clear – I am speaking metaphorically, that didn’t actually happen. If there is one thing reading this judgment has taught me, it is not to make assumptions about whether you are going to be sued for libel, as some people have a really surprising take on the wisdom of doing that.

The Facts

In high level summary, stories Ms Rooney had shared on her private Instagram account had been leaked to the press. In a bid to find out who was responsible she invented further stories and shared them with only one recipient, which were duly leaked. On 9 October 2019 she announced her findings publicly on Twitter, culminating in the now legendary tweet: “It’s……….Rebekah Vardy’s account.” ([2]).

The Law

The single, natural and ordinary meaning of the words used in the entire tweet was determined by Warby J (as he then was) at a preliminary hearing: Vardy v Rooney [2020] EWHC 3156 (QB). The single meaning was that over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal account by secretly informing The Sun newspaper of 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.

There was no dispute that the words complained of were defamatory of Ms Vardy, pursuant to the common law test, i.e. that the meaning or imputation would tend to have a substantially adverse effect on the way that right-thinking members of society generally would treat her.

Ms Rooney also made a late concession that the condition set out in s. 1 of the Defamation Act 2013 was met, i.e. that the publication had caused or was likely to cause serious harm to the reputation of Ms Vardy, who had been subject to vitriolic abuse and threats online following publication of the post.

Accordingly, Ms Rooney conceded both that the post was defamatory and that it caused serious harm to Ms Vardy’s reputation. However, she advanced two defences to the claim:

• First, the defence of truth, i.e. that the single meaning of the post was substantially true, pursuant to s. 2 of the 2013 Act. The court applies common law principles in relation to that defence, such that the defendant has to establish the ‘essential’ or ‘substantial’ truth of the sting of the libel. This is a highly fact sensitive exercise.

• Second, that publication of the post was in the public interest, pursuant to s. 4 of the 2013 Act, by which the defendant has to establish both that the statement was or formed part of a statement on a matter of public interest and that the defendant reasonably believed that publishing the statement was in the public interest, with the court making appropriate allowance for editorial judgment and having regard to all the circumstances of the case.

Pre-trial applications were made relating to witness summonses served on the journalists involved and disclosure sought from News Group Newspapers Ltd, publisher of The Sun. These were successfully resisted, in reliance upon the principle of NCND (“neither confirm nor deny”), the source protection rights contained in s. 10 of the Contempt of Court Act 1981 and Article 10 of the ECHR: Vardy v Rooney [2022] EWHC 1209 (QB).

The Truth Defence

Ms Rooney alleged that a number of articles about her had resulted from leaks by Ms Vardy using her agent Ms Caroline Watt as a conduit. Ms Vardy countered that it was possible that Ms Watt may have had some involvement in the articles but she did not authorise, condone or know anything about this. She admitted that she had sought to leak a story regarding another individual, but denied an established practice of doing this.

The failure to call Ms Watt, a vital witness to the matters in issue who had initially denied being the source of the leak in a witness statement, was “striking”.  The judge accepted that Ms Watt’s health had been affected by the proceedings.  However, she was “compelled to the conclusion that the primary reason Ms Watt was so very reluctant to give evidence, and has suffered adversely from the pressure to do so, was that she knew that to a large extent the evidence in her statements was untrue”. Whilst Ms Vardy’s decision not to call Ms Watt against her will was motivated to a substantial degree by concern for her welfare it was also because “she knew that when tested in cross-examination her evidence would be shown to be untrue and that it would have been highly likely to have undermined the claimant’s case.” ([43,47 & 48]).

WhatsApp exchanges between Ms Watt and Ms Vardy during the relevant period were highly pertinent.  However, the full exchanges were not available, for a number of purported reasons, including that Ms Watt had accidentally dropped her phone in the sea on a boat trip. Shortly after the court had ordered that the device should be inspected. Steyn J held that “the likelihood that the loss Ms Watt describes was accidental is slim.”  Moreover that “the reasons that Ms Vardy and Ms Watt have given for the original WhatsApp messages being unavailable are each improbable” and that “the loss by both Ms Vardy and Ms Watt of their original WhatsApp conversation during the key period was not accidental”. Adverse inferences were drawn ([69,70 &74]).

Ultimately, the judge found that Ms Watt had indeed leaked a number of Ms Rooney’s private posts to the Sun, and that this was known and condoned by Ms Vardy.  The WhatsApp messages were somewhat explicit in this regard, notably in the following observation made by Ms Watt to Ms Vardy following a complaint by Ms Rooney on her Twitter feed, to the effect that someone she trusted was leaking the stories: “it wasn’t someone she trusted. It was me [crying with laughter emoji]” ([132, 178, 226 & 285]).

Accordingly, the truth defence succeeded because Ms Rooney had established the essential or substantial truth of the sting of the libel.

Reports of the trial indicate that Ms Rooney’s lawyers squarely alleged that Ms Vardy had lied on oath. Steyn J’s views on that serious allegation are somewhat opaque. She noted the stress on Ms Vardy of the high profile trial, the abuse she had received and length of time she was in the witness box. She found that it was necessary to treat Ms Vardy’s evidence with “very considerable caution” noting that it was on many occasions “manifestly inconsistent with the contemporaneous documentary evidence”.  Ms Vardy was generally unable to make factual concessions “however implausible her evidence”.  This affected her overall view of Ms Vardy’s credibility, although “untruthful evidence may be given to mask guilt or to fortify innocence”.  She concluded that:

[A]lthough significant parts of Ms Vardy’s evidence were not credible, my assessment is that she is genuinely offended by the accusation made against her…that was not because she was not involved in disclosing information…I have found that she was.  Rather her indignation at the accusation flows, in my judgment from a combination of factors. [Her] part in disclosing information to The Sun was, it seems to me, unthinking rather than part of a considered and concerted business practice.  Consequently, there has been a degree of self-deception on her part regarding the extent to which she was involved, as well as a degree of justified resentment at the exaggerated way in which her role has at times been presented during the litigation.

[39, 41]

The Public Interest Defence

The judge accepted on balance that, although Ms Rooney’s interest was essentially personal, the post was on a matter of public interest, namely the undesirable practice of information about celebrities’ private lives being disclosed by trusted individuals.  She also accepted that Ms Rooney believed that it was in the public interest to publish the post given that she had issued a number of warnings on the matter.  However, it was not reasonable for her to have that belief, in all the circumstances, particularly without taking any steps to put the allegation to Ms Vardy and give her the opportunity to respond. That she anticipated Ms Vardy would deny the allegation was not to the point.

Conclusions

The case turned on the facts, and the evidence, and an almost unbelievable number of Whatsapp exchanges, which are nonetheless known to be incomplete. The observations on the public interest defence, and what fairness requires, should be noted by anyone tempted to engage in a bit of “trial by Twitter”. 

Finally, the judge failed to take judicial notice of the fact that Mr Rooney’s former football team, Everton, are great – a point drawn to my attention by Jo Moore, my esteemed 1COR colleague and frequent contributor to this blog.  To be clear – it is possibly untrue that Jo Moore frequently contributes to this blog, but hopefully, when applying the common law test set out above, not defamatory.

Shaheen Rahman QC is a barrister at 1 Crown Office Row