Vardy v Rooney and Another  EWHC 304 (QB)
What are the practical implications of this case?
The aspect of the case dealing with addition of parties will be of interest to those contemplating the addition of a party where the underlying additional claim is neither an indemnity nor a contribution but rather is a claim ‘for some other remedy’ (CPR 20.2(b)); that is, a claim with a vitality of its own that could be brought as a separate Part 7 claim. Her Ladyship reviewed the approach to such an addition and found on the facts that disruption and delay attendant on adding the new claim tipped the balance in favour of refusing the application to join.
The case serves as a reminder of the strict prohibition on the collateral use of evidence disclosed in proceedings for any other purpose and is essential reading for those contemplating a claim against a third party arising from material disclosed in proceedings.
There is a fascinating discussion (paragraphs  to ) of the most efficacious approach to obtaining information from Instagram (whether it should be jointly made by the parties or made by each in parallel) with the judge noting that references to posts needed to be specific, such as specifying detailed information regarding each relevant post, rather than needing to give Unique Identification Numbers for the posts as defined in pleadings. The deeper questions such as a whether posts on even a private Instagram account truly enjoy an expectation of privacy as a matter of law will only be resolved at trial.
What was the background?
The factual background of this case has been well-rehearsed in the mainstream press.
However, in summary, Mrs Rooney was concerned that stories from her personal and private Instagram account was being leaked to the Sun newspaper. She concocted a number of stories and posted them but to only one of a number of friends whom she suspected of being behind the leaks. Significantly, the stories posted to Mrs Vardy’s account were run in the Sun.
On 9 October 2019, Mrs Rooney posted on social media alleging Mrs Vardy was behind not only these leaks, but also the earlier leaks to the press.
Mrs Vardy sued in defamation; her claim issued on 12 June 2020. A trial had been scheduled for 9 May 2022 with a time estimate of seven days.
Mr Justice Nicklin had adjourned the without notice hearing of Mrs Rooney’s application to join a third party to be heard on notice for the expedient of avoiding the disruption of an application to set aside.
Both parties had made applications for further disclosure.
Mrs Rooney sought disclosure on a train of enquiry basis (otherwise known as a Peruvian Guano order)-that is, disclosure of documents that would ordinarily fall outside standard disclosure but are necessary to support a train of enquiry (usually in respect of dishonest conduct).
In support of this aspect of her application, Mrs Rooney referred to Mrs Vardy’s failure to disclose (at least intentionally) the redacted WhatsApp messages.
There was some discussion of the highly unusual circumstances in which some of Mrs Vardy’s disclosure was not available, including:
- the loss of a mobile phone overboard after a boat was hit by a wave
- the deletion of a ‘highly active’ Twitter account (allegedly only a few days after the post on 9 October 2019)
- the deletion of all attachments to Mrs Vardy’s WhatsApp messages when being transferred from her to her solicitors
- the deletion of a key message between Mrs Vardy and a reporter at the Sun
Mrs Rooney also sought to amend her re-amended defence to include significant narrative after information obtained on disclosure (it was inferred by Her Ladyship in order to put the narrative material into the public domain more quickly).
What did the court decide?
Her Ladyship refused most of the disclosure sought on both sides.
Her Ladyship reviewed the law on train of enquiry disclosure, noting that such an application:
- was exceptional and ‘an order for specific disclosure should only be made if it is “necessary for fairly disposing of the proceedings”: see Beck v Canadian Imperial Bank of Commerce  IRLR 740, para’
- must be properly focused on what precise disclosure is said to be necessary to that fair disposal of proceedings
Applying that test, Her Ladyship declined to make an order beyond that required by standard disclosure.
Her Ladyship found much of the disclosure sought to be irrelevant, not to exist or if it did exist to be within a continuing duty of standard disclosure. Only a very small residual of the disclosure falling within Mrs Vardy’s standard disclosure obligations, as sought by Mrs Rooney, was ordered and no disclosure sought by Mrs Vardy was ordered.
However, Her Ladyship (perhaps understandably) focused on the evidence in existence that had not been disclosed as a matter of ordinary disclosure. In relation to the redactions of Mrs Vardy’s WhatsApp messages, Her Ladyship stated:
‘138. First, in circumstances where, in the midst of a WhatsApp account that appears on its face (and I do not understand it to be disputed) to concern the defendant, the claimant states that she would ‘love to leak those stories’, I do not accept that it is open to the claimant’s representatives to make the determination, on the basis of their client’s instructions, that she was not referring to stories about the defendant. That may or may not be so: it is a matter for trial. I appreciate that a party’s representatives will often need to seek their client’s instructions as to what certain information relates to when determining relevance. But that does not mean that information can be withheld on the basis of the client’s account if it is plain on the face of the document that there is a credible alternative interpretation which would support the opposing party’s case and on which they would be bound to rely if the document is disclosed.’
Joining Mrs Vardy’s agent as a new party
Mrs Rooney sought to add Mrs Vardy’s agent to proceedings in respect of a distinct cause of action being misuse of confidential information.
Carefully considering the relevant provisions of CPR 20.9 on adding a new claim in existing proceedings, Her Ladyship accepted that while the causes of action were distinct, the remedies sought would be similar and most importantly there was a significant factual and legal overlay between the two cases despite the causes of action being distinct.
However, a key factor against addition was that Her Ladyship did not consider that justice could be served in a foreshortened procedural timetable for the misuse of confidential information case while maintaining the timetable to trial of the defamation claim. Her Ladyship pointed to the strict limitation in defamation cases and the need to provide prompt redress for those who sought to vindicate their reputations, while noting that a misuse of confidential information case typically took two years to reach trial.
Truncating the timetable for the new claim risked sacrificing key aspects of justice attendant on each step in the litigation. On the facts, it was possible to foresee applications for summary judgment or strike out of aspects of the claim.
In a well-reasoned and finely balanced decision, the judge ruled that the very significant and entirely unexplained delay in making the application along with the complete failure to engage in the pre-action protocol in respect of a misuse of confidential information case, tipped the balance against the application to add Mrs Vardy’s agent.
Permission of the court is only required if the new claim is made after the filing of the defence. Any additional claim should be foreshadowed in the directions questionnaire which Mrs Rooney did not do. Further, Mrs Rooney’s defence as currently pleaded made references to the relevant factual matrix such that the claim could not have said to become apparent to her only recently.
Mrs Rooney’s letter requesting disclosure of information from a third party into the existing proceedings did not amount to notice of a claim; much less a protocol compliant letter.
All litigators should note the role the pre-action protocol took in the ruling: it deprived a defendant to a claim of an opportunity not just to understand and narrow the issues in the claim, it also deprived them of an opportunity to resolve the case including by using alternative dispute resolution.
Her Ladyship noted that much of the material sought from the agent was to be provided as part of the main proceedings and the proceedings against the agent could be brought separately under CPR Pt 7 and then stayed pending the outcome of the main proceedings. The main proceedings would either be dipositive of the new claim or would very significantly narrow the issues in dispute.
Collateral use of evidence disclosed in proceedings
On reviewing the authorities, Her Ladyship concluded that retrospective permission to use material for a collateral purpose would only be given in the rarest of cases where exceptional circumstances existed. Given Her Ladyship’s refusal to join the new claim against Mrs Vardy’s agent to the existing proceedings, the application to rely on disclosed evidence had to be considered as an application for permission to rely for the purposes of articulating a new claim.
Her Ladyship appeared to treat the application as being made prospectively rather than strictly applying the retrospective rule, but found that the evidence as presented in the application did not justify an order for permission. The burden lay on the party seeking to rely to adduce evidence establishing the necessity of relying on the evidence disclosed in the proceedings and in this case no evidence had been adduced in support of the application at all. It follows that a refreshed application on different evidence may succeed in the future.
Application to amend the re-amended defence
Her Ladyship also refused all but some very modest aspects of Mrs Rooney’s application to further amend the re-amended defence, noting that the pleading was already a lengthy document (47 pages) and would on amendment become prolix (at 61 pages) and significantly more than the recommended 25 page maximum in the Queen’s Bench Guide.
The amendments allowed related to new evidence and those refused were those Her Ladyship opined were designed to put material in the public domain rather than provide the outline of the case as required under CPR 16.5 (and CPR PD16).
- Court: Queen’s Bench Division
- Judge: Mrs Justice Steyn
- Date of judgment: 14 February 2022
Article by Lauren Godfrey. First published by Lexis PSL on 22 February 2022.