In a recent post , we looked at the apparently growing phenomenon of allegations of ‘online defamation’ and some of the considerations that apply in relation to defamation actions in England & Wales. On Thursday 19th May 2022, in the English High Court, another high-profile trial concluded in which the allegation was of defamation of character through the medium of a social media platform. Judgment has been reserved by the trial judge, Mrs Justice Steyn, to a later date. In this post, we will have a brief look at the issues that arose in the case and ask the question: will the claimant rue bringing legal proceedings or will the defendant rue making the social media post?
The two protagonists are well-known in the United Kingdom, mainly because their husbands are famous in the world of professional football (soccer). The claimant, Rebekah Vardy, is the wife of Leicester City and England footballer, Jamie Vardy. Coleen Rooney, the defendant, is the wife of former Manchester United and England footballer Wayne Rooney, who is now a football manager at Derby County football club. The two women used to be friends. The ensuing trial attracted substantial media and public attention, both before and during the actual court proceedings. As wives of professional footballers, they are colloquially referred to as ‘WAGs’ – a term used to refer to ‘wives and girlfriends’ of famous footballers. The trial itself, for reasons we will discover, became known as the ‘Wagatha Christie’ case (a play on the acronym ‘WAG’ and the famous English murder-mystery and detective author, Agatha Christie).
The brief facts are that between 2017 and 2019, a UK tabloid newspaper ran several personal stories about Mrs Rooney which had been leaked to it by a third-party. Mrs Rooney did not know who had leaked the stories and ‘turned detective’, spending several months trying to find out who was responsible. This involved Mrs Rooney sharing a series of false stories and, by a process of elimination, she deduced that it was Mrs Vardy who was the source of the leaks. In October 2019, Mrs Rooney made a post on one of her social media accounts which read, ‘It’s……Rebekah Vardy’s account.’ It was a post that was seen by millions of people on social media, and which clearly indicated that it was Mrs Vardy who was responsible for leaking stories about Mrs Rooney.
After several months of the dispute being played out in the media, in June 2020 Mrs Vardy commenced libel proceedings against Mrs Rooney. Mrs Vardy’s lawyers alleged that she had "suffered extreme distress, hurt, anxiety and embarrassment as a result of the publication of the post and the events which followed". In late 2020, a High Court judge ruled that Mrs Rooney’s post clearly identified Mrs Vardy as being responsible for ‘serious and consistent breach of trust.’ Further revelations over the next few months suggested that the source of the leak may have been Mrs Vardy’s agent. Unfortunately, the agent was unfit to take part in the trial and, even more unfortunately, claimed that she had lost her mobile phone, which may have contained relevant evidence in the case, in the North Sea.
And so, with this background, the case came on for trial on the 10th May 2022. The trial itself became the focus of heavy media and public interest, with several interesting exchanges taking place, in particular, between the parties’ lawyers and the parties themselves. As titillating as such exchanges may have been, however, it is the disappearance of the potentially relevant and important evidence of Mrs Vardy’s agent, Caroline Watt, which perhaps provides the most interesting legal aspect of the case. Ms Watt claims that the mobile phone was accidentally lost in the North Sea when the boat she was on was hit by a wave. Mrs Rooney’s position, however, is clearly that the phone was thrown overboard deliberately, in order to destroy potentially incriminating evidence.
Although Mrs Rooney’s legal team cannot prove that the phone was thrown overboard deliberately, they are hoping that a legal ruling in a 300-year-old case, relating to the value of lost evidence, may assist them. And, it’s a very interesting argument.
In the case of Armory v Delamirie (1722), Armory was a chimney sweep’s boy who, whilst working, found a ring with jewels in the setting. Armory took the ring to a goldsmith, Delamirie, for a valuation. One of Delamirie’s apprentices took one of the jewels from the ring. He then told Armory that the ring, without the jewel, was worth three halfpence. Armory refused the offer and requested the return of the ring, with the jewel which had been removed put back in its setting. The apprentice returned the ring, but without the missing jewel, which apparently ‘disappeared’.
Much of the case revolved around property rights in the ring. However, there was an interesting issue in relation to evidence about the value of the missing jewel. Essentially, the judge in the case ruled that unless the Delamirie produced the missing jewel, the jury in the case should presume the strongest case against him and the value of the missing jewel should be deemed to be the most expensive jewel that might fit into the empty ring setting.
In the context of the trial involving Mrs Vardy and Mrs Rooney, Mrs Rooney’s legal team suggested that the value placed on the missing evidence – the missing WhatsApp messages on Caroline Watts’ mobile phone – should be considered of the highest possible value in the case. Mrs Rooney’s barrister, David Sherborne (apparently nicknamed ‘Orange Sherbet’ because of his ‘permatan’, according to The Spectator magazine ) told the court:
"One can only imagine how bad [Mrs Vardy's] position would look were the court to have access to what she was able to successfully delete. What remains cannot be anything other than the tip of the iceberg,"
We wait to see how successful this interesting and ingenious argument is when the judge delivers her judgment in the case in the coming weeks.
There is an excellent very recent article by Jessica O’Shea White of law firm Messrs Boyes Turner entitled ‘Wagatha Christie: Playing Detective in Family Law Disputes’, which can be found here: https://www.boyesturner.com/news-and-insights/wagatha-christie-playing-detective-family-law-disputes . The article, dated 18th May 2022, explores how far you can, and should, go in ‘playing detective’ in family law disputes.
to rue – to feel regret, remorse, or sorry about something
a protagonist – a leading character in a situation, novel, film, etc.
acronym – an abbreviation formed from the initial letters of other words, and pronounced as a word (for example, NATO).
titillating – pleasantly stimulating or exciting – usually in a salacious way.
incriminating – making someone appear guilty of a crime or some other wrongdoing.
© Cambridge Legal English Academy 2022