The ‘Wagatha Christie litigation’, as it is affectionately known, is the fascinating case of mistrust between friends and a sting operation to find a leak.  Colleen Rooney (wife of footballer Wayne) became concerned that ‘stories’ she was publishing to her private Instagram account – to which only her actual friends had access – were being reported in the Sun newspaper.

She decided to slowly start blocking her friends and monitor the Sun and other newspapers for leaked stories.  Eventually, her account had only one unblocked friend left, Rebekah Vardy (wife of footballer Jamie). She then published three ‘stories’, all of which were later reported in the Sun.

Rooney made a series of allegations about Vardy on her public (rather than private) Instagram account, explaining her process for catching her, and describing the betrayal she felt as a result.  These allegations earned her the nickname ‘Wagatha Christie’ (a portmanteau of the acronym “WAG” – meaning [footballer’s] wives and girlfriends, and “Agatha Christie”).  Vardy rejected the allegations and some months later sued in libel.

On 20 November 2020 Mr Justice Warby (as he then was) handed down his judgment on meaning following a preliminary issue trial (Vardy v Rooney [2020] EWHC 3156 (QB)), ruling that Rooney’s words meant:-

““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.”

Following this judgment the case was stayed until 8 February 2021 so that parties could attempt to mediate the dispute.  This was unsuccessful.

Vardy’s application

On 30 March 2021 Vardy filed an application to have various parts of Rooney’s Defence struck out, as well as for summary judgment on a separate, distinct, part.

Strike out and summary judgment applications are relatively common: in appropriate cases Claimants that do not believe the Defendant to have a viable defence can use them to try to end proceedings quickly and early (the summary judgment aspect) or to otherwise weaken them to obtain a strategic, tactical, or costs advantage (the strike out aspect, although strike out can be in respect of a entire Claim or Defence).

Strike out

By the time of the hearing of the application, Rooney had voluntarily agreed to withdraw several factual allegations from her Defence which Vardy had applied to have struck out.  What remained of the strike out application were 10 paragraphs of “similar fact evidence” where Rooney set out instances of Vardy’s behaviour that, she said, were similar to the leaks of private Instagram stories to the Sun that gave rise to the original allegations and the claim itself.  Vardy also applied to strike out some paragraphs that described her attention seeking behaviour (such as moving seats to sit behind Rooney at an England football match), and the parts of Rooney’s Defence that related to her (Vardy’s) ‘exceptionally close relationship’ with journalists at the Sun.

Vardy argued that the similar fact evidence was disproportionate, and would mean over £200,000 more would have to be spent on legal costs, and that allegations about her attention seeking behaviour and relationship with the Sun were irrelevant to determining whether she had been defamed.

Rooney argued that the similar fact evidence addressed ‘intertwining strands of her case’ that Vardy was responsible for the leaks to the Sun, and further that Vardy’s relationship with the Sun newspaper was important contextual information that reinforced the inference that Vardy had leaked the stories.  It is less clear what Rooney’s argument was about Vardy’s attention seeking behaviour: it seems to have very little bearing on the outcome of a defamation claim, and so may simply be a personal barb dressed in a lawyer’s language.  While one of Rooney’s examples (Vardy providing private information to the Sun in return for positive coverage) goes to Vardy’s motives, the fact that she wanted to be seen on TV and so moved seats at a football match seems to have less relevance.

Summary judgment

Vardy’s summary judgment application was about just one of the three ‘sting’ posts made by Rooney in ‘catching’ Vardy as the leak.  That post is known as the “TV Decisions Post”, and in Rooney’s Defence she said that the resultant article in the Sun newspaper used similar language to the TV Decisions Post, and that the article was published shortly after the post, so it is logical that the article’s source is the TV Decisions Post.

Vardy applied for summary judgment on that part on the basis that the article was very different from the TV Decisions Post, and so was not (and could not have been) based on it.

Decisions

In her judgement (Vardy v Rooney [2021] EWHC 1888 (QB)), Mrs Justice Steyn ordered that some of Rooney’s Defence should be struck out (though not all of the parts that Vardy sought).  She struck out the parts of Rooney’s Defence that built the narrative that Vardy was an attention seeker (stating that this was irrelevant to the claim) and, in simple terms, it would be a waste of everyone’s time, money, and energy to make decisions about it.  Steyn J also struck out parts of the Defence dealing with an affidavit that Vardy gave when giving the Sun an interview about abuse she suffered at the hands of her second husband.

The rest of Rooney’s Defence survived, which includes almost all of the ‘similar fact evidence’ and the closeness of Vardy’s relationship with the Sun.

On the summary judgment application, Steyn J did not need to delve into whether the Sun article was based on the TV Decisions Post: a point of law was raised by Rooney that defeated that part of the application.  Simply, it was not an ‘issue’ within the meaning of the rules for summary judgment, and as a matter of principle it would be undesirable for parties to be able to limit trials to only those issues on which they were (or perceived they were) strong.  As such, despite the article that allegedly flows from the TV Decisions Post mentioning entirely different TV shows, it remains part of the case (for now at least) and will be determined at trial.

Publicity

While the mainstream and celebrity media are reporting a significant win for Vardy at this interlocutory hearing, the truth is far more nuanced.  Vardy has won on several points and has had parts of Rooney’s Defence struck out.  However, those are only parts that the judge has agreed are irrelevant to the claim.  Although Vardy will save some costs not having to deal with those issues, they were not going to be determinative of the claim in any event.

Rooney has succeeded in keeping in most of what she wanted to: the ‘similar fact evidence’ where Vardy is said to have reported things to the press, Vardy’s close relationship with the Sun newspaper (including an allegation that Vardy is the author of the Secret Wag column), and will be permitted to make the case that one of the Sun’s articles was based on the TV Decisions Post.

As is often the case with hearings like this, the ‘winner’ will really be whoever is awarded their costs.  Steyn J’s judgment does not address costs – which are normally the subject of an application after a judgment has been handed down.

This post originally appeared on Brett Wilson Media and Communication Law Blog and is reproduced with permission and thanks.