Wagatha Christie costs hearing proves why mediation should become the norm

The long-running and highly public dispute between Rebekah Vardy and Coleen Rooney is moving on to its next acrimonious stage.

At a hearing before Senior Costs Judge Andrew Gordon-Saker in May, Rooney put in an application opposing having to pay 20% of her opponent’s ‘unreasonable and disproportionate’ legal bills, which amount to £325,000. That original costs ruling was made after Vardy, the wife of Leicester City striker Jamie Vardy, lost her £3 million libel claim against Rooney, the wife of former international footballer Wayne Rooney in July 2022. At the same time, the judge also ruled that Vardy should pay 90% of Rooney’s costs, with an initial £800,000 then ordered to be paid.

Given the undisguised bitterness between the parties – who had previously been close friends brought together when their husbands were both playing for England – it is of course unsurprising that Rooney is challenging the costs she has been ordered to pay.

Background

To recap, Vardy had sued over an accusation she had leaked details of Rooney’s private life to the press. She was exposed when Rooney conducted her own elaborate sting operation to prove who was passing on stories about her private life to The Sun. The libel trial judge dismissed Vardy’s evidence as ‘evasive or implausible’ and accused her of deliberately deleting WhatsApp messages central to the case.

The disputed legal costs are to be considered by Judge Gordon-Saker in October.

The legal costs

Costs accrued at a pre-trial hearing for further documents and information from both sides form part of the application, as does Rooney’s attempt to have legal action against Vardy’s former agent heard alongside the libel claim.

It is the bill for approximately eight weeks of work by Vardy’s team, which included her leading barrister working on Christmas Day, which Rooney now considers to be unreasonable.

The situation in which Rooney now finds herself is not an uncommon one. I have observed many instances in which the winning party has won the action only to be ravaged by not making a recovery at a reasonable amount of costs. In most cases the loser will only contribute towards the winner’s costs, but Rooney wants to recover as much as possible and Vardy will want to pay as little as possible.

Mediation

The convoluted way in which legal costs can be accumulated in a trial like this one is the primary reason why mediation represents an ideal alternative. In a case such as this one, about which Vardy’s representative Jamie Carpenter KC declared that ‘no one was costs building’, a mediated resolution outside of the court system should, in fact, become the norm.

There are numerous advantages to mediation through the Costs Alternative Dispute Resolution (CADR) panel. CADR offers mediation and binding evaluation tailored to the costs and case management process, to help parties avoid expense and time, and reduce court backlogs. The most obvious reason for parties to choose this solution is that the panel members encourage parties to reach an amicable agreement.

Panel members are former members of the judiciary, leading barristers, costs litigation experts and costs lawyers, all of whom bring their considerable skill and experience to convince both sides to be sensible, regardless of what has come before. Parties have a free choice of the level of experience and background of the mediator, which can be tailored to both budget and choosing someone with the most relevant experience.

As long as the parties provide dates of availability, a date is immediately set, which is likely to be much sooner than most courts can list. Furthermore, what takes place before a mediation panel is completely confidential. By contrast, costs hearings in the court system are typically held in public.

What truly distinguishes mediation from going through a court is that in the latter every detail will be re-examined. The court can assess every letter, and the content of every meeting between the lawyers and the client, which can bring with it unwelcome discoveries. Then there is the enervating probability of incurring yet more costs by proceeding through the court system, because of adjournments or situations in which the judge asks all parties to return at a later date.

With mediation, the fee is fixed and payable in advance. Of course, both parties do have to agree, and it only takes one to refuse for the process to fail. The probability of this occurring should not, however, preclude the notion of entering mediation in the first instance, as parties can still have their day in court if they fail to reach an agreement.

A proposal to determine whether mediation should be mandatory before parties go down the emotional and confrontational court route is currently at the consultation stage. Regardless of whether it is formally approved as part of the costs assessment process, many litigators are now pursuing mediation already to bring an end more quickly and, most importantly, more cheaply.

There are, of course, exceptions to this trend. In some unusual cases, it suits both parties to have their dirty laundry washed in public. Both Vardy and Rooney are famous through their many years of appearing in tabloid newspaper stories, so it might be preferable for both to reignite their bitter feud in the courts rather than taking a less combustible option.