What Rebekah Vardy got wrong

August 4, 2022 0 By Cypher9ja

The “Wagatha Christie” case requires at least three things to be explained. The first is how, in legal and practical terms, Colleen Rooney won and Rebekah Vardy lost. And to understand this, we can look closely at the published final judgment, as well as the judgments at preliminary stages of the case.

But the two other questions are even more interesting. Why was this case not settled instead of going to trial? And why was a case like this even brought by Vardy in the first place? 

The effect of the trial and the judgment handed down on Friday by the High Court has been “devastating” to Vardy—that is her own word. But what happened at the hearing was also devastating. The evidence showed her to be someone capable of leaking information about friends and acquaintances—not just Rooney—to the press for money. Even if she had won after that hearing, that evidence alone was damning. The trial was a PR disaster in and of itself.

But she did not win and the detailed and lengthy judgment was even more of a catastrophe. The court held that not only was she capable of leaking information to newspapers for money generally, but it can be inferred that she was responsible for the leaks about Rooney. The judgment also held that Vardy had provided untrue reasons for the deletion or unavailability of key evidence. The judge even said Vardy had deliberately destroyed evidence.

It therefore seems a trial any prudent litigant would have avoided, even if there was a chance of winning. Once it became obvious what the evidence would be before the court, one would expect a wise claimant to have settled on any available terms rather than face the inevitable PR disaster. But Vardy did not settle: she pressed on to full trial and judgment. This needs to be explained.

But to start at the beginning: the claim was brought after Rooney showed how she had used a process of deduction to reveal who had been leaking stories from her private Instagram account to the Sun newspaper. As she put it memorably, it was: “……….Rebekah Vardy’s account.” For this social media, and then the mainstream media, dubbed her “Wagatha Christie.”

The allegation caused immense embarrassment to Vardy, who maintained that she had not betrayed Rooney’s trust to leak the stories. As such, Vardy believed she was wronged by this allegation.

During the course of the case, Rooney’s lawyers accepted that the allegation had caused serious harm to Vardy’s reputation—something Rooney herself initially denied. For, as the trial judge set out, members of the public have responded to allegation “by subjecting Ms Vardy to vile abuse, including messages wishing her, her family, and even her (then unborn) baby, ill in the most awful terms.”

And Vardy’s defiant response to the judgment indicates she still feels wronged: “It is not the result that I had expected, nor believe was just. I brought this action to vindicate my reputation and am devastated by the judge’s finding.”

But feeling wronged and having suffered damage do not, by themselves, provide any person with a right to a legal remedy. For Vardy to have her reputation vindicated by the law of defamation, she would have to bring a claim for libel. The sting of the libel was not so much that she leaked but that she had abused Rooney’s trust. And that claim would not succeed if Rooney were able to show that the allegation was true—or substantially true.

Such claims invariably settle before trial. This is true of most civil litigation, which is the term for when one private party sues another private party. Almost all contested civil litigation ends in settlement by agreement between the parties. 

And so had Vardy and Rooney settled the case, this would not have required any special explanation. It would have been as expected. Once the two sides could see the legal cases and evidence against them, the parameters of any possible settlement would become obvious to the parties’ lawyers, if not the parties themselves. The lawyers would then advise on the prospects of a settlement, and negotiations would usually commence and eventually conclude.

For such a claim to proceed to full trial is therefore an exception, not the rule. So it calls for an explanation. But common explanations for cases not settling do not apply here. There was no dispute as to the relevant law (though there was a dispute about how that law applied to the facts), and so there was no need for a test case. There was also no real dispute as to what the documentary evidence said, to the extent that evidence still existed.

And this was also not the sort of case where either or both parties were locked into having to go to trial because of complicated costs arrangements that can make pressing on with a case seem a less adverse outcome than settling. Both parties were well resourced and nothing in the public domain suggests any messy “no win, no fee” arrangements.

The explanation for the lack of settlement must lie elsewhere. And what may be missed is that this case was for most of the litigation going well for Vardy and not for Rooney. Although the final judgment was emphatically against Vardy, the merits of the case were finely balanced for most of the course of the case. It was not a case which she was necessarily going to lose. She had grounds to believe she would win.

In particular, there was no direct evidence that Vardy had leaked the information from Rooney’s Instagram account. There was also no direct evidence that she had been aware of any leaks.

That’s why the case revolved around whether the leaks were made on her behalf, and especially whether they had been leaked by her agent Caroline Watt.  

On the face of it, Vardy was putting together a strong case. Watt was going to give evidence that she also had not leaked the information. Vardy and Watt were going to provide waivers so that journalists would confirm that Vardy and Watt were not the sources of their stories. Witness summaries were prepared on behalf of the journalists, pending witness summons. Had all this evidence come up to proof then Vardy would have had a formidable case, despite Rooney’s initial sleuthing.

Vardy was even aided by a markedly favourable preliminary determination of the court as to the meaning of Rooney’s revelatory post. Rooney and her lawyers had to show that the information was leaked by Vardy or on her behalf—and not just that there were reasonable grounds to suspect Vardy to be the culprit. And under libel law, Rooney had to prove her defence, and not Vardy disprove it.

Rooney’s defence team seemed to be constantly on the backfoot: the defence became an amended defence, then a re-amended defence, and then a re-re-amended defence. Applications being made by the defence for evidence were rejected. Defence witness statements were still being served in the month of the trial.

On at least three occasions during the early part of the litigation a settlement was proposed by Rooney’s lawyers—but rejected by Vardy’s legal team. The likely reason for this is that at those early stages there was a mismatch between what was being offered and how strong Vardy believed her case to be.

But around the start of this year Vardy’s case began to fall apart. Watt was described as unwell and she was not to be called as a witness. Despite the waivers of Vardy and Watt, all but one of the journalists refused to provide evidence—and the undisputed evidence of the one who did provide a witness statement was that neither Vardy nor Watt was the source for a particular story. The supposed witness summaries were later held by the court not to reflect the evidence the journalists had indicated they could give. Vardy’s case was still strong, because of the lack of direct evidence and the structure of English libel law, but it was not as strong as it was, and it was weakening by the week.

In turn, Rooney’s case was getting steadily stronger. With some impressive lawyering from Rooney’s Liverpool-based solicitors, who were actually not on the backfoot, it became increasingly apparent that there were immense gaps in the documentary record, in particular the WhatsApp messages between Vardy and Watt. The explanations for these gaps were implausible: an accidental deletion of data by Vardy, a telephone accidentally dropped in the sea by Watt. 

And what evidence was available was becoming often unhelpful to Vardy. The court was to be invited to infer that Vardy was prone to leaking. And when that inference was added to the adverse inferences the court was to be invited to make from the loss of relevant evidence, then the fact that there wasn’t any direct evidence that Vardy herself leaked Rooney’s information became less important. 

Rooney’s lawyers were deftly putting together a narrative for the court where all the inferences neatly fell into place. In turn, Vardy’s case at trial was all over the place, and she had a horrid time during cross-examination. The evidence of leaking of others’ information complemented the unconvincing explanations for the loss of data which in turn complemented the evidence that Watt acted on behalf of Vardy, who was finally forced to concede that Watt could have leaked the information.

And so the one huge advantage that Vardy had—in there not being any direct evidence of leaking— became at trial almost of no weight. As long as Rooney’s lawyers could show that the allegations were substantially true and that Watt was acting as Vardy’s agent, the lack of direct evidence was going to become ultimately irrelevant.

In the judgment the judge went strongly against Vardy on almost every point. For example, the judge found it “likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea.” The judge also inferred “that Ms Vardy chose not to call Ms Watt because she knew that when tested in cross-examination her evidence would be shown to be untrue.” The judge held that it was “necessary to treat Ms Vardy’s evidence with very considerable caution.”

But judgments can seem one more one-sided than the reality of the case. If Vardy’s case was inherently weak then it would not require a 75-page judgment with 290 paragraphs. In the end, the judge went with Rooney’s case on each disputed point—but had some of those points gone differently Rooney may have failed in her defence—and it was for Rooney to prove her defence, and not for Vardy to disprove it. Despite the PR disaster of the hearing for Vardy, it was not obvious that Vardy would lose until the judgment was handed down.

Yet it had been long obvious that any victory for Vardy was going to be Pyrrhic, which is helpfully defined in one dictionary as “a victory that comes at a great cost, perhaps making the ordeal to win not worth it.” The legal case may have been finely balanced, but the PR battle was decisively lost by Vardy.

By the start of this year, it was plain as a pikestaff that there were documents in evidence that would look very bad at trial. It was also as plain as a pikestaff that the explanations for the loss of data would not stand sensible scrutiny. Yet Vardy pressed on to trial in circumstances which would be humiliating even if Rooney’s defence was not proved. Why?

It is partly a question of timing. Until the start of this year, before the evidence was disclosed, Vardy was in a strong position legally. She had a strong-looking case and the benefit of favourable court decisions. And so if there was to be settlement at this stage, it would have been on terms that favoured Vardy.

But when those advantages dissolved then the position needed to be reviewed fundamentally. This is the moment one would have expected Vardy to have settled, rather than face what would be a public ordeal in court, even if she could still technically win.

One can assume she was properly advised of the risks, both about the case and about consequences of proceeding. Solicitors have a duty to constantly update clients as to the course of their cases—and her lawyers are experienced media litigators. But their job is to advise—it is for a client to make decisions. And as Vardy’s post-trial comments show, she was confident in her view of the case. 

There can therefore be little doubt that the decision to press on was Vardy’s own decision. The reason the claim did not settle in the months before the hearing seems to be that Vardy believed she would still win in the absence of direct evidence that she personally did the leaking, and any PR fallout would be worth that vindication. 

This leaves the final question: why did she bring the case? This is a different question to why she did not settle. It is one thing to press on with a case to trial when it begins to unravel, but it is another to launch a case on a flawed basis. 

Vardy always knew Watt had access to her Instagram account, and Vardy always knew that she had herself considered leaking the information of others to the media and using her agent Watt as a conduit for those leaks. She did not need Rooney’s lawyers to force the relevant disclosures for her to know these two things. She therefore always knew that even if she had not leaked the Rooney information, Watt as her agent (both in law and reality) may have done so on her behalf.  

So even if her case seemed at times strong during this litigation, it was ultimately a claim that was unwise to bring. But she brought the case anyway. Why?

Perhaps there is a clue in the judgment. The judge saw in Vardy “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.”

Vardy had not herself done the leaking and so, in her mind, this made all the difference, despite her case collapsing around her and the unfolding PR disaster. Vardy was, said the judge, “genuinely offended by the accusation made against her”—even though, as the court found, that accusation was substantially true.

And so, Vardy being “genuinely offended by the accusation made against her” is the most plausible explanation for why she brought the case, despite what she knew and must have known about Watt and the media, and why she recklessly pressed on, despite the case screaming for settlement on PR grounds alone. She believed she was wronged and this litigation was to put right that wrong, whatever the financial and PR costs.

It was not therefore the lawyers, the costs, the law of the libel or the system that explains why this claim was launched and why it did not settle. The reason this case ended in the extraordinary way that it did was more straightforward and immediate. It was……….Rebekah Vardy.

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