I have nothing but sympathy for Mrs Justice Steyn, who had to sit through seven days of evidence in the tawdry celebrity ‘wags’ drama that was Vardy v Rooney and then write a lengthy judgment setting out the facts in tedious detail: the judge noted that there were some 3,000 pages of documentary evidence, mainly comprising “contemporaneous Instagram stories or posts, messages on various platforms and newspaper articles.”
From a non-defamation lawyer’s perspective, the main post of interest was what was NOT there, and how the Judge dealt with its absence. The missing evidence was the full WhatsApp chat between Ms Vardy and Ms Watt, her agent, which was unavailable because Ms Vardy had, she said inadvertently, deleted it while trying to upload it to a file sharing site, and because, in August 2021 – a matter of days after the court had ordered that she disclose it – Ms Watt, to use her words:
“… accidentally dropped my phone while I was on a boat trip….This was a genuine accident which happened during a family holiday to Scotland. I have a weakness in my hand and was on a boat trip with my family. I was standing up in choppy waters holding my phone and I dropped my phone when the boat hit a wave. This was an uninsured phone and its loss was extremely inconvenient and expensive for me.”
On the evidence, including expert IT evidence, the Judge had little doubt what had really occurred:
“I accept that a person who is not engaged in litigation may well choose to delete their WhatsApp messages routinely … for example to maintain storage capacity on their device. But the evidence indicates that Ms Watt had not deleted her WhatsApp messages in 2019 … It is likely that the WhatsApp chat between herself and Ms Vardy (as well as exchanges with journalists) was available on Ms Watt’s phone when she was advised … that such evidence must be preserved … The incident in which Ms Watt’s phone is said to have been lost at sea occurred in August 2021. On 4 August 2021, [a hearing] had taken place at which an order requiring her device to be inspected had been made. The timing is striking. In my judgment, even taking this evidence on its own, the likelihood that the loss Ms Watt describes was accidental is slim … The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable … In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea.”
In the age of computers, smartphones, and social media, ‘documents’ no longer means – as it once mainly did – only physical papers. It now means anything on which information of any description is recorded. Correspondingly, the means by which such information can become somehow lost or destroyed are limited only by the imagination of the person trying to conceal them.
In Tullett Prebon Plc v BGC Brokers L.P & others (2010) the judge noted “how mobile telephones or blackberries were lost or replaced by” various key witnesses “at crucial times. Between April 2008 and April 2009 Mr Verrier lost or disposed of eight blackberries. His last blackberry was found to be locked by password. Mr Verrier could not explain how that had happened and said he never used a password. … [He said] that he has a history of frequently losing blackberries. The other defendants each had an explanation, some more persuasive than others … It is however inconceivable that all these items went missing or became unavailable as they did, when they did, without an improper intention in at least some of the cases. I am satisfied that it was Mr Verrier’s gambit to ‘lose’ blackberries whenever he thought they might contain inconvenient material, and that his instructions were the cause of at least some of the mobiles being lost.”
In the recent case of E D & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & others (2022), a defendant’s evidence that her two-year-old son had accidentally deleted her WeChat app on her company phone was not accepted as truthful because of an inconsistency with earlier correspondence, which demonstrated that she had instructed her solicitors that the phone concerned was her personal phone, and the judge found it unlikely that the defendant would have let her 2 year old son play with her company phone anyway.
As regards deliberately destroyed documents, the law says that “the strongest possible presumption arises that if it had been produced [the document] would have told against [the destroyer]”. The destruction creates an evidential void and the Court should refuse to give the destroyer the benefit of any doubt or draw any inference in his favour.
Indeed, it will inevitably draw adverse inferences against him. The basis of this is the very old and charmingly Dickensian case of Armorie v Delamirie (1721). Armorie, a chimney sweep’s boy, found a ring with jewels set in it. He took the ring to the shop of Delamirie, a goldsmith, to obtain a valuation of the item. Delamirie’s employee surreptitiously removed the jewels from the setting on the pretense of weighing them. He then returned the empty setting and informed Armorie that it was worth ‘three halfpence’. Armorie asked the employee to return the stones and setting in their prior condition, but he was refused. Armorie sued on the basis that, being the finder, he had a better title to the ring than anyone else. The court agreed. Since it was not produced at the trial, and thus a valuation was impossible, Armorie was awarded the maximum value that a jewel of that form could have had, under the principle that a wrongdoer should not be able to derive gain – here uncertainty of the proper award – from the effects of his wrongdoing.
Returning to the mundane, in Vardy v Rooney, the judge came to certain conclusions on the evidence in part as a result of “the inference I draw that both Ms Vardy and Ms Watt have engaged in destroying relevant information which would undermine Ms Vardy’s case.”
The outcome of Ms Vardy’s ill-judged action against Ms Rooney, as well as the costs order she has since faced, was widely reported elsewhere!
The case presents a number of salutary lessons, one arising from parties’ disclosure obligations. If a case is brought or defended, the court will require the parties to disclose both documents within their possession upon which they rely, and any which adversely affect their own, or support another party’s case. Disclosure involves detailing documents you have and those you once had but no longer have and, in the latter case, explaining why not.
If the court is minded to disbelieve whatever the explanation for any missing documents is, their absence may well do far more harm than the documents themselves would have done.
Like the teacher who will probably assume that the homework eaten by the dog would have received an E minus.
Should you have any queries about any of the information in the article, or need any dispute resolution related advice, please contact John Melville-Smith at [email protected] or 02077258027.