Disappearing act: the pitfall of conveniently unavailable evidence

This summer, the High Court played host to another high profile defamation trial.

The claim was brought by Rebecca Vardy against Coleen Rooney. Vardy claimed Rooney had committed a libel against her when she had published a post on Twitter in October 2019. In her tweet, Ms Rooney set out in some detail an explanation of a sting operation she had undertaken in order to identify the individual she believed was the source of storiesleaked about her to the press.

When that storyline subsequently appeared in the press, Ms Rooney believed she knew who the person was. Infamously she revealed with the words “it’s... Rebecca Vardy’s account.”

Vardy denied being the source of the leaks of the stories and, without an apology from Rooney, she commenced defamation proceedings.  It was reported on heavily as considerable theatre.

The outcome

The High Court found against Vardy – and a defamation action originally brought by her to restore her reputation following the ‘damage’ done to it by the social media post from Rooney in fact had the opposite effect. In a damning judgment, Steyn J recorded she found Vardy’s evidence at trial “manifestly inconsistent” with the other evidence presented and “evasive and implausible”. It is another example of the ‘Streisand Effect.’

The assessment of Vardy as a witness could hardly have be worse. Steyn J suggested her evidence should be treated with “very considerable caution.” This is in stark contrast to Rooney, who was described as “honest and reliable.”

The lost evidence? 

A compelling feature of the case was Vardy’s disclosure – or, more accurately, what she did not disclose.

The WhatsApp messages sent between Vardy and her assistant, Caroline Watt, were regarded as being of particular importance to the claim. However, the only version available to the court was the text file export. The media files exchanged between them (including any screenshots or other images, videos and voicemail messages) were in fact missing. The reasons for this involved a series of unfortunate events.

Vardy’s laptop supposedly crashed whilst she was transferring her thousands of WhatsApp messages to a shared folder, set up by her legal team. Following this, Vardy stated she was no longer able to access the messages and the laptop was subsequently disposed of (she did not explain why).

Watt was similarly unable to provide the court with the complete WhatsApp message exchange. Her misfortune was to accidently drop her mobile telephone in the North Sea whilst on a family holiday.

The convenient absence of this evidence was unhelpful to Rooney’s defence, as it was her burden to show her post was “substantially true” – i.e. that Ms Vardy had knowledgecontrol of the leaks to the press.

The evidential arguments

Rooney’s legal team referred the court to a series of authorities relating to missing evidence, including one (Armorie v Delamirie) from 1721, to submit, in the absence of evidence, the Judge should assume the worst.

This was accepted by Steyn J, who referred to the authorities in her judgment to confirm:“If a “wrongdoer” has “parted with relevant evidence”, the court may draw adverse inferences.”

Noting both Vardy and Watt were on notice to preserve evidence, Steyn J made a particular note of Vardy’s decision to dispose of her laptop. She also stated she thought the timing of Watt’s loss of her phone was “striking”, coming mere days after the CCMC at which an order had been made that her phone should be inspected. The 'improbable' nature of the reasons for the losses of messages was heightened by the fact it took a combination of these reasons for the evidence to be unavailable to the court.

Her conclusion was: “In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat messages with Ms Watt and Ms Watt dropped her phone in the sea”. This was reflected in the costs order, where Vardy was criticised expressly for deleting evidence.

All clients are advised of their duty to preserve evidence when there is litigation. This judgment supports the view the court will have little tolerance to litigants who fail in this duty.

Laurence Weeks is partner and head of commercial litigation and dispute resolution, and Flora Jacobs is a trainee solicitor in her first seat on the commercial litigation team. Both are with Birketts: birketts.co.uk