Rebekah Vardy v Coleen Rooney
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 21 April 2022 |
| Neutral Citation | [2022] EWHC 946 (QB) |
| Docket Number | Case No: QB-2020-002028 |
| Court | Queen's Bench Division |
[2022] EWHC 946 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mrs Justice Steyn DBE
Case No: QB-2020-002028
and
Hugh Tomlinson QC and Sara Mansoori QC (instructed by Kingsley Napley LLP) for the Claimant
David Sherborne and Ben Hamer (instructed by Brabners LLP) for the Defendant
Adam Wolanski QC and Clara Hamer (instructed by Simons Muirhead Burton LLP) for the Respondent
David Price QC (Solicitor-Advocate) ( of David Price Solicitors & Advocates) for the Summonsed Journalists
Hearing date: 13 April 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mrs Justice Steyn DBE
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 21 April 2022
Introduction
This is a libel claim brought by Mrs Rebekah Vardy (the claimant) against Mrs Coleen Rooney (the defendant). This judgment is given after a pre-trial review on 13 April 2022. The trial is listed for a hearing beginning on 9 May 2022, with a time estimate of 7 days. Amongst the applications I heard at the pre-trial review were three on which I indicated that I would put my reasons in writing, namely:
i) The defendant's application dated 5 April 2022 for disclosure from the respondent, a non-party to the claim;
ii) The claimant's application made at the hearing on 13 April 2022 for permission to rely on witness summaries and for relief from sanctions; and
iii) The claimant's application dated 11 April 2022 for various paragraphs or parts of paragraphs of the defendant's witness statement to be deleted.
The claim
On 9 October 2019, the defendant published a Post on her public Instagram, Twitter and Facebook accounts about the claimant (“the Post”). The Post was very widely published. Warby J has determined that the Post made the following defamatory allegation concerning the claimant:
“Over a period of years the Claimant had regularly and frequently abused her status as a trusted follower of the Defendant's personal Instagram account by secretly informing The Sun newspaper of the Defendant's private posts and stories, thereby making public without the Defendant's permission a great deal of information about the Defendant, her friends and family which she did not want made public.”
The defendant has pleaded defences of truth and public interest which are contested.
(1) The defendant's non-party disclosure application
The defendant seeks an order against the respondent, News Group Newspapers Ltd, the publisher of The Sun, of communications between the claimant and nine named journalists and between Ms Caroline Watt, the claimant's agent, and those nine named journalists. Paragraph 1 of the order sought is in these terms:
“The Respondent shall disclose and permit inspection of the documents (including electronic documents such as e-mail) dated from 1 September 2017 to 9 October 2019 within its control as described below:
1.1. All emails, WhatsApp messages, iMessages, texts, voice notes, Twitter direct messages and Instagram direct messages (including media in such messages), between Rebekah Vardy and (a) Andy Halls; (b) Amy Brookbanks; (c) Simon Boyle; (d) Dan Wootton; (e) Hannah Hope; (f) Beth Neil; (g) Ellie Henman; (h) Jane Atkinson; or (i) Victoria Newton in which information or stories concerning Coleen Rooney (including content from Mrs Rooney's Instagram account or otherwise) or others are being exchanged.
1.2. All emails, WhatsApp messages, iMessages, texts, voice notes, Twitter direct messages and Instagram direct messages (including media in such messages), between Caroline Watt and (a) Andy Halls; (b) Amy Brookbanks; (c) Simon Boyle; (d) Dan Wootton; (e) Hannah Hope; (f) Beth Neil; (g) Ellie Henman; (h) Jane Atkinson; or (i) Victoria Newton in which information or stories concerning Coleen Rooney (including content from Mrs Rooney's Instagram account or otherwise) or others are being exchanged.
Paragraph 2 of the draft order indicates that the respondent should specify, when providing disclosure by list, which documents are no longer in its control and what has happened to those documents, and the documents over which it claims a right or duty to withhold inspection.
An unsealed copy of the application was served on the respondent on 5 April 2022, with the sealed version being served on 11 April 2022. Although the respondent had less than three clear days' notice of the hearing, the respondent submitted a helpful skeleton argument the evening before the hearing and was represented. Mr Wolanksi QC did not seek an adjournment of the application. I have borne in mind the limited time the respondent had to prepare for the hearing, but in the circumstances considered it was clearly appropriate to determine the application.
The application is made pursuant to CPR 31.17 and supported by the sixth statement of Mr Lunt. The respondent opposes the application on the basis that neither of the requirements of CPR 31.17(3)(a) and (b) are met and, in any event, the court should not make the order in the exercise of its discretion.
The claimant is neutral but critical of the scope of the application and has proposed an alternative form of order in paragraph 18 of Ms Harris' sixth statement which limits the disclosure sought (by reference to the same platforms and communications with the same nine journalists) to “information or stories concerning Coleen Rooney in relation to” eight named articles (referred to as the Marriage Article, the Pyjamas Article, the Car Article, the Confidential Article, the Soho House Article, the Gender Selection Article, the TV Decisions Article and the Flooded Basement Article). The respondent was not supportive of this alternative proposal as, although the outcome in terms of disclosed documents might be more limited, the search would be no less onerous and potentially more difficult.
CPR 31.17(3) provides:
“The court may make an order under this rule only where —
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”
Third party disclosure is “the exception rather than the rule. Disclosure will not be routinely ordered but only where the conditions there specified are met”: Frankson v Secretary of State for the Home Department [2003] EWCA Civ 655, [2003] 1 WLR 1952, Scott Baker LJ at [10]. Although the defendant will bear the respondent's costs, the jurisdiction to make an order against a non-party, which has been described as an ‘intrusive’ one, must be exercised with some caution: Re Howglen Ltd [2001] 1 All ER 376, Pumfrey J at 381.
The first requirement under CPR 31.17(3) is that any documents sought must be shown to be likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings. In this context, ‘likely’ means that the documents ‘may well’ assist: Three Rivers DC v Bank of England (No. 4) [2002] EWCA Civ 1182.
Where disclosure is sought of a class of documents, the test must be applied to each document in the class. As noted in Disclosure, Matthews and Malek (5th ed.) (“Matthews & Malek”) at 4.63,
“Where disclosure is sought of a class of documents, the threshold test must be applied to each document in the class. The test is not satisfied if there are documents within the class which are not relevant to any issue within the proceedings. … The court is wary of categories which are loosely or unnecessarily broadly defined and alert for requests which appear to be of a fishing nature. It is not appropriate to leave the non-party with the duty of making its mind up whether they do or not. Equally the court must be satisfied that the documents do in fact exist, since it is not right to send the non-party off on a search before it can satisfy itself that no such documents do in fact exist.”
As Eady J said in Flood v Times Newspapers Ltd [2009] EMLR 18 at [34], “It is not appropriate to require third parties to go off and investigate whether there are any documents which happen to fit the description.”
The second requirement under CPR 31.17(3) is that disclosure of the documents sought is ‘necessary’ in order to dispose fairly of the claim or to save costs. In this case, the application is only put on the basis that it is necessary to dispose fairly of the claim. This requirement only falls for consideration if requirement (a) has been satisfied. Matthews & Malek observe at 4.64:
“This requirement focuses on the necessity of disclosure because non-party disclosure ought not to be ordered by the court if it is not necessary to do so. The court also must consider whether the disclosure is needed to dispose fairly of the action or save costs. There may, for example, be another route to obtain the necessary information or documentation, such as where it is in the possession or control of another party to the proceedings. If an applicant has already received disclosure of sufficient documents to enable it to advance its case, this may make disclosure not necessary. The court will decline to order disclosure of documents that appear to provide merely background or material that might be useful in cross-examination. The disclosure sought may add to the costs rather than save them. The stage at which the...
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