I’m posting this, not because it will greatly add to the nation’s store of wisdom on the matter, but because I intimated that I would in my previous comments on Mrs Justice Steyn’s rather more significant judgment in the Banks v. Cadwalladr case.
My first observation: risk
Libel litigation is a petard with which it is easy to be self-hoisted, (to allude to a Shakespearean usage, which itself is worth a detour: but not here).
Oscar Wilde sued for being described as “posing as a somdomite” [sic]. He was forced to discontinue and was successfully prosecuted and imprisoned. Jeffery Archer sued the Daily Star for saying that he had paid for sex. He received £500,000. He was subsequently found guilty of perjury and also went to prison. Jonathan Aitken sued the Guardian for alleging various corrupt dealings. He announced his decision with the following flurry:
“If it falls to me to start a fight to cut out the cancer of bent and twisted journalism in our country with the simple sword of truth and the trusty shield of British fair play, so be it. I am ready for the fight. The fight [is] against falsehood and those who peddle it. My fight begins today. Thank you and good afternoon.”
He was also sentenced to prison for perjury. Other similar stories might no doubt be listed.
Rebekah Vardy is facing paying a significant contribution to Coleen Rooney’s substantial costs.
This will require more than a few drama spin-offs, documentaries, and reality TV appearances.
My second observation: reward
Is it really worth going to Court for libel? A libel case is meant to vindicate reputation with a monetary award. The successful claimant essentially wants to stand on the steps of the Royal Court’s of Justice and assert that vindication after a statement in open court.
But to get there involves huge expense on very technical legal arguments, having incidents in your life peeled away with considerable embarrassment. And, these days, having your initially flippant social media posts analysed with meticulous forensic detail.
So it was with Rebekah Vardy. It would have been the same had she won on a technicality: for instance if it has been found that Coleen Rooney had not met the burden of proof. There was always the possibility of a victory but a hugely pyrrhic one. That would have been all the more true if Mrs Vardy had won but had previously rejected formal offers of settlement by Mrs Rooney.
In the event, she lost. Mrs Rooney proved the truth of what she said (although she did not succeed on the alternative defence of good faith publication in the public interest).
Rebekah Vardy was found by the judge to be an unreliable witness whose evidence was to be treated with very considerable caution. It was on many occasions manifestly inconsistent with the contemporaneous documentary evidence.
The judge found that she had deliberate deleted relevant evidence of WhatsApp chats with her agent and her agent had deliberately thrown her phone in the sea.
Even had she won, on a straightforward basis, it is likely that the damages award would have been less than the difference between the costs she incurred with her lawyers and the contribution to those costs that Mrs Rooney might be ordered to pay. To coin a phrase the game would not have been worth the candle and the only benefit would have been the transient one of satisfied vindication.
I do though insert a bit of a cynical reference to the drama spin-offs, documentaries, and reality TV appearances referred to earlier. Was this the actual reward?
My third observation: review
Step back, analyse the risks and rewards. Amid all the excruciating detail and the jaw-dropping amusement generated by this case, it is worth emphasising yet again:
Litigation is never straightforward
The outcome of litigation is unpredictable
You should avoid going to court if you possibly can
You should listen to your lawyers.
Those points are of course clichés, if valid ones.
My main thought is this. Mrs Vardy had fully arguable claim supported by black letter law. It had every prospect of succeeding. An earlier ruling had given Mrs Rooney a much wider meaning to defend. The public interest publication defence failed.
An artificial intelligence judicial prediction program might well have suggested that a court might find in the claimant’s favour. Nevertheless, the human evidence which emerged showed that the claim was unattractive. Judges can reverse engineer the result of any case to favour the real and clear merits.
So you may have a technically correct and ostensibly winning legal claim. But never underestimate the abilities of a clever judge to find an alternative and persuasive way round.
