Wagatha Christie: Inadequate Disclosure, a Turning Point in the Case?
Monday 20th February 2023
Our last article on the topic of Wagatha Christie ended by saying, “something has clearly gone wrong during the disclosure exercise. We’ll only find out what when Mrs Justice Steyn hands down her judgment”. The judgment has landed and the catalogue of errors when it comes to disclosure are evident.
What happened prior to the trial?
The parties went through all the critical stages of the court process until arriving at trial in May 2022. Disclosure became a sticking point between the parties after disclosure and inspection of documents took place in October / November 2021; Ms Vardy claims to have ‘encountered difficulty’ uploading her ‘files’ to her Solicitor’s document upload/sharing system which, Ms Vardy says, resulted in the loss of the data altogether.
Mrs Justice Steyn at paragraph 56 of the judgment sets out why this became a contentious point;
“The WhatsApp exchanges between Ms Vardy and Ms Watt during the period when Ms Vardy’s account had access to the Private Instagram Account are of particular importance. However, all the media files that they sent each other (including any screenshots or other images, videos and voicemail messages) are missing. In the copy of the WhatsApp exchanges disclosed by the claimant, the fact that a media file is missing is apparent (signified by the words “image omitted”). In addition, the only version of their WhatsApp exchanges that is available is a text file export: the original messages are unavailable. Consequently, it is not possible to tell whether any messages (other than the media files) are missing from the version that has been disclosed. The defendant contends that the loss was deliberate. Ms Vardy has denied that she destroyed any evidence relevant to this action”
What decision came of this?
As a result, the court had to consider whether the loss of data was deliberate. Ms Vardy’s disposal of the laptop, which she says the zip files are said to have been downloaded, is an understandable cause for concern. Even if the laptop was not conventionally functional, both experts agreed that it could have been examined forensically and could have provided evidence as to what had occurred at the time of the upload. Couple this with the fact that Ms Vardy’s key witness and confidant “accidentally dropped [her] phone…on a boat trip..”, the evidence that was once available, and the court would expect to be able to see, cannot be tested. If it cannot be tested, the court may or may not give it any weight and if no weight is given to it, the limited disclosure could only serve to damage that party’s credibility.
Paragraph 70 of the judgment demonstrates the damage to Ms Vardy’s credibility perfectly,
“The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable…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”.
Failure to preserve and disclose evidence at the appropriate time can cost a claimant or defendant dearly. The outcome of the Vardy -v- Rooney trial may not have turned on disclosure but it will have been a contributing factor at the very least. On 4 October 2022, Ms Vardy was ordered to pay £1.5m towards Ms Rooney’s legal costs, having lost her legal battle.
