"Wagatha Christie": Adverse Inferences Can Be Drawn Where Evidence Has Been Lost

• Published date: 16 September 2022
• Law Firm: Debevoise & Plimpton
• Author: Mr Christopher Boyne, Patrick Swain and Julia Caldwell

Key Takeaways:

• In the recent case of Vardy v Rooney, the High Court provided useful guidance as to how it will deal with the issue of lost or missing evidence.
• The court can draw adverse inferences against a party where data has been lost; particularly where the loss appears deliberate This can have a significant impact on the outcome of civil litigation.
• Document retention and preservation procedures should therefore be strictly adhered to in order to minimise the risk of such adverse inferences being drawn.

In the recent (and widely publicised) case of Vardy v Rooney [2022] EWHC 2017 (QB), the High Court provided useful guidance as to how it will deal with the issue of lost or missing evidence.

Key Takeaways

• The Court can draw adverse inferences against a party where data has been lost; particularly where the loss appears deliberate. This can have a significant impact on the outcome of civil litigation.
• Document retention and preservation procedures should therefore be strictly adhered to in order to minimise the risk of such inferences being drawn.

Background. Although the facts are well known, in brief, the claimant, Ms Rebekah Vardy, a footballer's wife, brought a libel claim against the defendant, Ms Coleen Rooney, an ex-footballer's wife, in respect of a post published by the latter on her social media, which alleged that Ms Vardy had leaked her private posts and stories to The Sun newspaper (the "Reveal Post"). This had come to light as a result of a sting operation where Ms Rooney had disclosed to Ms Vardy's (and only Ms Vardy's) Instagram account titillating but fabricated information. As Ms Rooney conceded that the Reveal Post was defamatory and had caused serious harm to Ms Vardy's reputation, the outstanding issues for the High Court to determine were: (i) whether Ms Rooney had established a defence of truth to the claim; and, if not, (ii) the appropriate quantum of damages. The court ultimately held that the Reveal Post was "substantially true" and therefore that the statutory defence of truth was satisfied. The claim was dismissed.

The public-interest defence (that Ms Rooney had sought to rely on in the alternative) was rejected on the basis that it was not reasonable to believe that it was in the public interest to publish the Reveal Post without giving Ms Vardy an opportunity to respond to the allegation.

Background: Missing Evidence. In reaching the above conclusion, the court carefully considered allegations concerning a volume of...