Drama, intrigue, and boat trips – but where, asks Rebecca Ardagh, is the evidence? In addition to being the “British showbiz trial of the decade”1 and inspiration for a new TV drama series2, the decision in Vardy v Rooney3 provides valuable lessons in relation to the preservation and presentation of evidence in proceedings.4 This article will examine the elements of the case that set out these obligations and, in particular, those elements that relate to witness summaries, witness statements, witness credibility and, of course, document preservation.
Vardy v Rooney concerns a defamation claim brought by Rebekah Vardy against Coleen Rooney for the reputational damage suffered by Ms Vardy as a result of the “Reveal Post”. The Reveal Post was a post shared by Ms Rooney on social media following an extensive “sting operation” alleging that Ms Vardy’s Instagram account was leaking information from Ms Rooney’s private Instagram account to The Sun newspaper.
Ms Rooney conceded that the Reveal Post was in itself defamatory and, therefore, the primary purpose of the proceeding became the determination of whether one or both of Ms Rooney’s argued defences, that the defamatory statement was true and/or in the public interest, were successful. The validity of the truth defence, in particular, turned entirely on documentary and witness evidence.
Mrs Justice Steyn determined ultimately that “… it is necessary to treat Ms Vardy’s evidence with very considerable caution”5 while Ms Rooney’s evidence was “honest and reliable”;6 so, what led to this difference in treatment? Mrs Justice Steyn relied upon both the substance of the witnesses’ evidence, as well as the manner in which it was presented when considering reliability.
In relation to the substance of the evidence, Ms Vardy’s evidence was inconsistent with the documentary evidence and that of other witnesses. On the other hand, Ms Rooney’s evidence was consistent and, therefore, more easily corroborated. Mrs Justice Steyn was also concerned that Ms Vardy was “unwilling to make factual concessions, however implausible her evidence”.7
As for presentation of the evidence, Mrs Justice Steyn was concerned that Ms Vardy was evasive when answering questions where Ms Rooney answered, “without any evasion, and without conveying any sense that she was giving pre-prepared answers … her evidence was clear and compelling.”8
We know that witness evidence will be given weight according to the credibility of the witness – in cases where issues are not also evidenced in documents, witness credibility will be a key factor in being able to demonstrate a party’s case. Mrs Justice Steyn’s treatment of the evidence of Ms Vardy and Ms Rooney reinforces that witnesses should be clear and cooperative when questioned; evasiveness or defensiveness can come across as having something to hide or having pre-rehearsed answers to questions. In particular, a witness should be prepared and even comfortable to acknowledge and explain inconsistencies between his or her evidence and the other evidence before the court or reconsider his or her recollection in light of other evidence, if that is appropriate in the circumstances.
A further factor that played into the credibility of Ms Vardy’s evidence was Mrs Justice Steyn’s conclusion as to her explanation for the disappearance of her WhatsApp conversation with her agent, Ms Watts. Essentially, the defendant argued that Ms Vardy was either directly leaking private information about Ms Rooney, or instructing her agent, Ms Watts, to do so on her behalf. The majority of the communication between Ms Vardy and Ms Watts took place via WhatsApp consisting of written messages and media (images and voice recordings).
Unfortunately, the court was not privy to the entirety of these written messages or any of the media. In this regard, Ms Vardy claims she encountered a technical malfunction while uploading her WhatsApp history to her solicitors, which resulted in no media being uploaded and then the entirety of her conversation with Ms Watts being deleted from her phone. While the defendant argued that this incomplete upload and simultaneous deletion was deliberate, the claimant maintained it was accidental. The expert evidence considered it at least surprising and at most impossible. Ms Vardy also then encountered an issue with her laptop and subsequently disposed of it without notifying the defendant, meaning the original (and potentially complete) upload file could not be analysed.
This was coupled with Ms Watts losing her phone at sea sometime in August 2021, when a CCMC order requiring inspection of her mobile phone had been made on 4 August 2021. Mrs Justice Steyn noted that the timing of this was “striking”.9
Ultimately, Mrs Justice Steyn stated that, “The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable”.10 Though Ms Vardy did disclose some adverse documents, Mrs Justice Steyn was not “persuaded that the imperfection of the effort to remove incriminating evidence shows that there was no such attempt”.11
Mrs Justice Steyn considered that the above was sufficient to conclude that the claimant had parted with relevant evidence and for her to draw adverse inferences in light of this.12 The claimant was also subsequently ordered to pay the defendant’s legal costs on an indemnity basis rather than a standard basis, resulting in Ms Vardy being responsible for 90% of Ms Rooney’s court costs (higher than what is ordinarily ordered in similar cases). Mrs Justice Steyn imposed these punitive costs as a result of her finding that the WhatsApp messages were deliberately destroyed, which was “outside the ordinary and reasonable conduct of proceedings”.
These examples are clearly (hopefully) extreme, though not entirely unheard of,13 examples of a party’s failure to comply with its document preservation and disclosure obligations. The parties (and their legal representatives) have strict obligations in this regard in almost all forums, and particularly in the Business and Property Courts by way of the Disclosure Pilot and Practice Direction 57AD. It is important to be aware of and understand fully the general obligations of the forum in which your claim is taking place, as well as the specific rules implemented by way of orders or directions during the case management process. Compliance (or otherwise) with such rules and obligations could have an impact on the way a party’s evidence is treated, the outcome, and, in some cases, their wallet.
According to CPR 32.9(2), a witness summary is a summary of either the evidence that would otherwise be included in a witness statement (if the evidence is known), or the matters on which the party intends to question the witness (if the evidence is not known). Under CPR 32.9(1), where a party is required to serve a witness statement but is unable to obtain one, it may apply for permission to serve a witness summary instead.
Ms Vardy served two witness statements and eight witness summaries, without having informed either the defendant or the court of the intention to do so, or even that those for whom witness summaries were being provided were intended witnesses for the claimant. In a pre-trial review,14 Mrs Justice Steyn considered an application by Ms Vardy to rely on witness summaries and for relief from sanctions. In doing so, she considered CPR 3.9(1) and the approach applied by the Court of Appeal in Denton v TH White Limited.15
CPR3.9(1) requires the court to consider “all circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders”. The Court of Appeal in Denton v TH White Limited indicted this should be approached in 3 stages: 1) consider the seriousness of the failure (which may be the only stage if the failure is not serious or significant), 2) consider why the default occurred, and 3) evaluate all the circumstances of the case as in CPR3.9(1).
Mrs Justice Steyn considered that the claimant’s failure was a significant one; however, the interests of justice weighed in favour of giving permission to the claimant to serve four of the witness summaries (as well as relief from sanctions). Mrs Justice Steyn considered that the specified four witness summaries were likely to contain relevant evidence and the topics on which they were intended to be questioned were clear. They were introduced on the deadline for witness evidence and their inclusion would not impact the forthcoming trial.
On the other hand, the remaining witness summaries were not as likely to contain relevant evidence as the claimant could not establish a strong enough connection between these proposed witnesses and the issues to be determined. Given the significance of the default found in the first stage, the fact that the interests of justice were not as strong for these summaries, and the potential impact on efficient litigation, tipped Mrs Justice Steyn, who did not grant retrospective permission to serve, and relief from sanctions in relation to the final two witness summaries.
In practice, Vardy v Rooney further confirms the court’s strict abidance by the principle that witness summaries should only be used in situations where a party is required to provide a witness statement but is unable to obtain one and has applied for permission to serve a witness summary in its place. The summary should be clear as to the evidence the witness will give or will be questioned in relation to, and a party should be prepared to demonstrate the basis on which it considers whether the witness is in a position to provide such evidence including documentary or corroborating evidence of the proposed witness’s relationship to or knowledge of the person or issue at hand.
The claimant applied for 127 paragraphs of Ms Rooney’s witness statement to be struck out either in part or in full. Mrs Justice Steyn referred to paragraph 10.60 of the Queen’s Bench Guide 2022, which stated in part that witness statements “should not include commentary on the trial bundle” and “should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included”. This can be compared to paragraph 12.1.4 of the Technology and Construction Court Guide,16 which states that:
“The witness statement should be as concise as possible without omitting anything of significance, refer to documents only where necessary and should not:
Ms Rooney’s witness statement included numerous instances of her summarising communications already in evidence that she was not party to and using these to support the personal opinions or conclusions she had at that time. This was both a recitation of the evidence in the case, as well as commentary on such evidence. Mrs Justice Steyn pointed out that this also amounts to arguing the case. Giving “commentary on the effect of those communications is a matter of argument for counsel. It has no place in the defendant’s witness statement”.17
Mrs Justice Steyn granted the claimant’s application in relation to the majority of the paragraphs identified in the application for commentary. It is worth noting that some of the paragraphs in which Ms Rooney recited or commented on were allowed to remain, but only in instances where Ms Rooney was party to those communications and, therefore, could give evidence on them.
When it came to considering whether material was relevant, Mrs Justice Steyn elected to take a generous view given this was only a pre-trial review and she was not privy to “the full range of arguments that the parties will deploy when the substantive issues are tried”.18 It is likely that the court will allow itself more scope to consider applications concerning relevance at a substantive hearing.
In practice, parties need to ensure that witness statements are strictly limited to that witness’s own, relevant evidence. It is not an opportunity to highlight or draw attention to the documentation before the court, particularly where the witness was not party to that documentation contemporaneously.
It has long been said that there are no silver bullets in disclosure – and, although it is true that they are not often found, attempts to avoid disclosing one can be just as fatal to a case as the bullet itself ever could. At least, that could be said about this case.
Documentary, witness, and expert evidence consumes a significant amount of the time and expense of any claim. It is important to ensure that both parties and their representatives are aware of and complying with the rules and guidance in the CPR, applicable court guidelines, and specific orders from the outset. Legal representatives also need to take particular care to ensure their clients and witnesses are aware of and comfortable with their obligations at each stage of the proceeding; the outcome really will turn on it.
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Links
[1] https://fenwickelliott.com/research-insight/annual-review/2022/factual-witness-evidence-recent-lessons-from-courtroom
[2] https://fenwickelliott.com/research-insight/annual-review/2022/expert-evidence-roundup-case-law
[3] https://www.gbnews.com/opinion/wagatha-christie-case-has-been-showbiz-trial-of-the-decade-but-the-only-winners-are-the-lawyers-says-ellie-costello/298244
[4] https://www.timeout.com/uk/news/everything-you-need-to-know-about-wagatha-christie-drama-101422
[5] https://www.judiciary.uk/guidance-and-resources/technology-and-construction-court-tcc-guide-october-2022/