A mysterious affair solved – evidence suggests that “Wagatha Christie” was right all along

The court rejected her alternative defence of publication in the public interest, especially as she had not given Ms Vardy an opportunity to respond to the allegation.

The secret adversary

The facts of this case are well-known to most – turning on a notorious spat between so-called “WAGs” Rebekah Vardy, the wife of Leicester striker Jamie Vardy, and Coleen Rooney, the wife of former Manchester United forward Wayne Rooney – and each celebrities in their own right.

In 2019 Ms Rooney published a viral post on Instagram, in which she revealed that someone whom she trusted to “follow” her private Instagram account had been selling stories about her to the press for years. She stated that she had long had suspicions about who this person was.

The mousetrap

Ms Rooney had then hatched a plan to catch the culprit by blocking everyone from viewing her stories except for one particular person/account, and then posting fake stories to see if they made their way into The Sun newspaper, where previous articles containing leaked information had been published.

When they did, she felt confident enough to “out” the culprit and ended her reveal post with the famous line: “It’s … Rebekah Vardy’s account.”

Cards on the table

Ms Rooney attempted to argue that, by using the word “account”, she was not accusing Ms Vardy of being directly responsible for the leaks. Yet on determination of meaning as a preliminary issue by Mr Justice Warby (now Lord Justice Warby), the single ordinary meaning of the reveal post was taken to be that: “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.”

It was not in dispute that the reveal post was defamatory of Ms Vardy at common law and had caused serious harm to her reputation for the purposes of section 1 of the Defamation Act 2013. But Ms Rooney relied on two statutory defences:

• the defence of truth under section 2 of the Act; and

• the defence of publication on a matter of public interest under section 4 of the Act.

The central issue at the hearing was whether Ms Rooney had shown that the meaning of the reveal post was “substantially true”. It was this element that became the focus of Mrs Justice Steyn’s analysis in her judgment that followed the trial, which had become something of a cause célèbre earlier in 2022.

The witness for the prosecution

This case is a shining example of how a claimant’s own evidence can sometimes prove more damaging than the defamatory publication complained of.

First, there was the documentary evidence disclosed by Ms Vardy. That included messages between Ms Vardy and her agent Ms Watt, which in the judge’s view demonstrated that they:

(a) were regularly monitoring Ms Rooney’s private account and discussing information that might be of interest to the press;

(b) (via Ms Watt) disclosed information from the private account to journalists at The Sun;

(c) concocted a false story that Ms Vardy could use, if challenged, to deny liability for leaking information to the press;

(d) made efforts to get Ms Vardy media attention at footballing events, including orchestrating staged photographs with paparazzi, against the wishes of the England team management and the other WAGs; and

(e) sent information about other people to the press, including those involved in the footballing world.

Secondly, there was the documentary evidence that Ms Vardy did not disclose. Although the parties adduced around 3,000 pages of documentary evidence, the judge was disparaging about the fact that key documents expected to be disclosed by Ms Vardy were unavailable, or that there were otherwise gaps in such evidence. In particular:

• Ms Vardy only provided the text of her WhatsApp conversation with Ms Watt, and did not disclose the media files (including images, videos and voice notes). She then deleted the entire conversation, claiming that the deletion occurred as a result of a technical error.

• She had also, in the judge’s view, deleted specific messages from between October 2019 and June 2020, which may well have been relevant to the issues in the case. Those messages could not be recovered from Ms Watt, because Ms Watt “regrettably” dropped her phone in the sea very shortly after she was ordered to disclose documents from it. The judge ruled that it was appropriate to draw adverse inferences from the absence of the evidence.  On that basis, she made several findings against Ms Vardy regarding the likelihood of her having knowingly consented to the disclosure of Ms Rooney’s information to The Sun.

Thirdly, there was Ms Vardy’s evidence at trial. The judge found her evidence to be “manifestly inconsistent with the contemporaneous documentary evidence” on “very many occasions”, and found that Ms Vardy was evasive and “generally unwilling to make factual concessions, however implausible her evidence”. As a result, she found it necessary to treat Ms Vardy’s evidence with “very considerable caution”.

The unbreakable alibi – the truth defence

The judge then conducted a detailed chronological review of the evidence that was available. The period of particular relevance was between 15 January 2017 and 9 October 2019. That encompassed the period between Ms Vardy’s request and acceptance as a follower of the private Instagram account until Ms Rooney revealed her suspicion that Ms Vardy had been leaking stories and removed her access to the private Instagram account.

After reviewing the documentary and oral evidence, the judge found that Ms Vardy was involved in leaking the so-called “Marriage, Birthday, Halloween, Pyjamas, Car Crash, Gender Selection, Babysitting and Flooded Basement” posts to The Sun. While the judge considered that, ultimately, Ms Watt was the person who passed on the information to the journalists (and that Ms Vardy herself had not been directly involved in communicating with the press on those issues), the evidence indicated that, on the balance of probabilities, Ms Vardy was aware that Ms Watt was doing so, and that she condoned such practices. Ms Vardy was also directly involved in pointing out items of interest to Ms Watt and answering additional queries from the press using Ms Watt as a conduit.

In forming the conclusion that Ms Vardy had been involved in leaking the posts, the judge considered Ms Watt’s access to Ms Vardy’s Instagram account during the relevant period. Although Ms Vardy denied that Ms Watt had access to her Instagram account before November 2017, the judge considered that the log-in data from Ms Vardy’s account contradicted her evidence. The judge considered the WhatsApp conversations between Ms Watt and Ms Vardy to be relevant in assessing the way in which they worked together and with the press, as well as the credibility of Ms Vardy’s evidence that she was not involved in that practice. Furthermore, the close relationship that Ms Watt and Ms Vardy had developed with journalists from The Sun over a number of years added to the likelihood that both had been involved in leaking the relevant posts to the newspaper. Taken together, those elements of the evidence led the judge to consider that the meaning imputed by the reveal post was substantially true, with the effect that Ms Rooney had a complete defence to the claim.

The judge also commented on the nature of the information disclosed. Even though the information disclosed was “not deeply confidential” and could be “fairly described as trivial”, a high level of personal confidentiality and importance were not required of the information “to meet the sting of the libel”. It was sufficient that the information came from posts that Ms Rooney did not want to share publicly. Additionally, the fact that the so-called “Gender Selection” and “Flooded Basement” posts were fabricated by Ms Rooney for the purposes of uncovering the informant did not detract from the conclusion that the essential sting of the libel had been shown to be true.

Unfinished portrait – publication on a matter of public interest

This element of Ms Rooney’s defence was dealt with briefly. Despite the personal nature of the posts that were leaked, the content of the reveal post was in the public interest, as it revealed the “undesirable practice of information … about celebrities’ private lives being disclosed to the press by trusted individuals”. The judge also accepted that Ms Rooney believed that it was in the public interest to publish the reveal post.

Nonetheless, the judge held that it was not reasonable to believe it was in the public interest to post the reveal post without taking any steps to put the allegation to Ms Vardy and to allow her an opportunity to respond. The alternative defence therefore failed, although on this occasion it did not affect the overall result.

Verdict

Many have questioned why Rebecca Vardy would bring this claim at all, given the content of the text messages that were disclosed and the devastating impact of the judgment on her reputation. Yet that viewpoint – quite apart from being blessed with hindsight – ignores the position in which Ms Vardy found herself in 2019 when Ms Rooney posted the reveal post.

The reveal post was read by millions of people, some of whom subjected Ms Vardy to the vilest of abuse, and the judge had no difficulty in assessing that Ms Rooney’s actions had caused serious harm to Ms Vardy’s reputation – indeed, that was accepted by Ms Rooney in her skeleton argument. The judge also noted that “nothing of which Ms Vardy has been accused, nor any of the findings in this judgment, provide any justification or excuse for subjecting her or her family, or any other person involved in this case, to such vitriol”.

Ms Vardy continues to maintain that she is innocent and has never leaked stories to the press about anyone, let alone Coleen Rooney. In those circumstances, it is perhaps less difficult to see why someone who has been subjected to such vilification might seek vindication through the court, despite the risks.

The case is also a timely reminder that, before issuing court proceedings, claimants should always do their best to analyse and understand all sides of the case that they intend to bring, including potential evidential weaknesses. That is perhaps easier said than done. Yet as the real Agatha Christie once wrote: “Everything must be taken into account. If the fact will not fit the theory, let the theory go.”