This is proving to be quite a year for celebrity libel. First, Johnny Depp and now the turn of Rebecca Vardy.  She is bringing libel proceedings against Coleen Rooney arising from the now infamous ‘Wagatha Christie” Instagram post accusing Ms Vardy of being responsible for leaking stories about Ms Rooney to The Sun.

Contrary to some of the more sensationalist media coverage – including the Sun’s front page story “Becky goes Nuclear“, suggesting that the Claimant’s legal team had “filed papers forcing Coleen Rooney into court” – this was a standard hearing following a consent application for trial of meaning as a preliminary issue. Following a half day hearing on 19 November 2002, Warby J delivered judgment the following day, rejecting the meaning contended for by the Defendant and holding that the words complained of bore a meaning substantially the same as that contended for by the Claimant ([2020] EWHC 3156 (QB)).

The Facts

The facts giving rise to this claim are very well known and have been the subject of much publicity. On 9 October 2019, the Defendant – who is married to England footballer Wayne Rooney and is a well-known media and television personality in her own right – posted the following a message on her public Instagram account.  She later posted the same message as a screenshot on her Twitter account with the caption “This has been a burden in my life for a few years now and finally I have got to the bottom of it…..”

The posts garnered immediate and widespread attention online and in the media, and Ms Rooney quickly became known as “Wagatha Christie”. On 12 June 2020, Ms Vardy issued libel proceedings, alleging that she had been subject to considerable abuse both online and in person because of the accusations and that this had caused her significant distress.

By consent on 17 September 2020, Nicklin J ordered that the natural and ordinary meaning of the words complained of should be determined as a preliminary issue. The consent Order – as is standard practice – required the Defendant to set out prior to the preliminary issue trial the natural and ordinary meaning she contended the words complained of bore. However, on 2 October 2020 she filed and served a full Defence, which contained her case on meaning in addition to the substantive defences she relies on.

The Claimant’s case on meaning was that the words complained of bore the following natural ordinary meaning:

“the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”

The Defendant’s case was that the words complained of bore a less serious meaning, namely:

“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”

It was not in dispute that the words complained of were defamatory of the Claimant.

Judgment

Warby J emphasised that early hearings to determine meaning as a preliminary issue are now commonplace. He noted that:

“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.” [8]

He then went on to set out the well-established legal principles relevant to the determination of meaning in libel as set out in Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25. [15] In particular, he reiterated that in determining the natural and ordinary meaning of the words complained of, he should not have regard to any of the pleaded case, what the Claimant may have intended the words to mean or what third parties thought they meant. There was an “overriding rule” which the Judge had to apply as per his own earlier judgment in Lord Mohamed Sheikh v Associated Newspapers Ltd [2019] EWHC 2947 (QB) ([24] to [25]):

“The overriding rule when dealing with both meaning and the question whether a statement is factual or opinion is encapsulated … above. It is always a question of how the reasonable reader would respond to the words. 

One important principle that follows from that overriding rule is the need to avoid unduly elaborate analysis. This is a constant theme of the jurisprudence. It applies to the arguments of Counsel, to the reasoning process undertaken by the Judge, and to the reasons to be given by the judge when explaining his or her conclusions on meaning.”

Warby J also noted the difference in the seriousness of the meanings contended for by the parties. The Claimant argued that the meaning was Chase Level 1 (that she was actually guilty of leaking the stories) while the Defendant argued for the lower Chase Level 2 meaning or “reasonable grounds to suspect”. Warby J referred to his earlier explanation of the terms as:

“This is a convenient shorthand way of referring to different levels of gravity, which derives from the judgment of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45]. Brooke LJ identified three types of defamatory allegations, broadly, (1) the claimant is guilty of the act; (2) there are reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant committed the act.”  (Allen v Times Newspapers [2019] EWHC 1235 (QB) [17])

The Judge concluded that the meaning he had arrived at both before and after the oral submissions of the parties was “substantially the same” as the Claimant’s meaning. [24] Although the Defendant had argued that the reference to “Rebekah. Vardy’s account” meant that the meaning was less serious, and that it could be more than one person responsible, Warby J was not persuaded that, taken in the context of the words complained of that the allegation was anything other than that one person – Ms Vardy – had been responsible for leaking the stories. [27]- [31]

The Judge took judicial notice of the fact that Twitter and Instagram are used for marketing purposes as well as purely social exchanges and that “some celebrities put out content that appears to be carefully managed” and that the ordinary reader of such accounts would be aware that there may be some delegation of responsibility for the content posted. [34]. However, not all celebrity social media accounts would be run in this way and not everyone would know or believe that to be the case. This could therefore not be said to be a matter of common knowledge.  [35]

He noted that if a Defendant wished to argue that some readers would have knowledge of facts which were not common knowledge, so that the meaning was less serious (a “reverse innuendo meaning”) she must identify the facts said to have been known and the basis for which it is said the readers knew those facts. In this case, although a full Defence had been served prior to the preliminary hearing, no such case had been pleaded. [37]

Warby J concluded that the “whole purpose of the post” was to identify the individual who was “clearly” identified by Ms Rooney as responsible for a “serious and consistent breach of trust”. The meaning was therefore the most serious – Chase Level 1.

Comment

Preliminary issue hearings on meaning have become common place (see previous Inforrm posts here and here).  This is another example of the desirability of determining meaning at an early stage.

In this case, it is surprising that a full Defence was served before the hearing – it now being clearly established that this is not necessary and, indeed, in some cases may expose a defendant to adverse cost consequences: see, e.g. Bokova v Associated Newspapers Ltd [2018] EWHC 2032 (QB).  A defendant is required to serve a “statement of case” on meaning but this is not the same as a full defence. Further, in this case, the fact that no “reverse innuendo” had been pleaded in the defence appears to have weighed against the defendant’s submissions on meaning.

The consequences of this determination on meaning for the defendant does not only go to the issue of serious harm (it was not disputed that the words complained of on either meaning were defamatory) but to the substantive defences the Defendant may wish to rely on. The Defence as served relies on a defence of truth pursuant to s. 2 of the Defamation Act 2013 and a defence of “public interest” under s.4.  In relation to the former, following this judgment, the Defendant faces a higher bar – she must now establish that it is substantially true that:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

An amended defence may now be served but in the Wagatha Christie battle, the first round goes to the Claimant.

Kirsten Sjøvoll is a member of Matrix Chambers, practising the field of media and information law.  This post is published on the Matrix Media website.