Rebekah Vardy v Coleen Rooney: WAGs war and the law – Part 4

The dispute between Rebekah Vardy and Coleen Rooney has highlighted a number of important legal considerations. In this part four of our series on the ongoing legal battle between the WAGs, we will discuss Mrs Vardy’s application to strike out parts of Mrs Rooney’s witness statement.

Mrs Rooney’s witness statement ran to 300 paragraphs, covering 61 pages. Mrs Vardy made an application to strike out 111 whole paragraphs and parts of a further 16 paragraphs on the basis that they consisted of (1) a recitation of or commentary on documents in the trial bundle; and (2) irrelevant, hearsay or unpleaded material (including material that had been previously struck out of Mrs Rooney’s defence).

Witness evidence plays a key role in litigation, and it is important that any statements are compliant with the court rules. As this case shows, if you fail to follow the rules, you can expect (sometimes large) parts of your witness evidence to be struck out by the court.

What should a witness statement include?

CPR 32.4(1) provides: “a witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally”.

There is further guidance in the Queen’s Bench Guide 2022, which states at paragraph 10.60 that the following matters should be borne in mind when making a witness statement:

1. 1. “A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers;

1. 2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings;

1. 3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. An application may be made by an opposing party to strike out inadmissible or irrelevant material…” (Emphasis added.)

Paragraphs reciting disclosure and / or containing commentary or submissions

In paragraph 7 of her witness statement, Mrs Rooney states: “I have always been confident in the truth of what I posted on 9 October 2019 and the documentation which Becky has disclosed as part of these proceedings, in particular her WhatsApp conversations with her agent Caroline Watt, has only further reinforced my view on that”. Mrs Rooney then exhibits 43 pages of WhatsApp exchanges between Mrs Vardy and Ms Watt, as well as 9 pages of WhatsApp exchanges between herself and Mrs Vardy.

Mrs Rooney’s goes on to state at paragraph 12: “it has also come to light that there are numerous occasions on which we have been prevented from viewing potentially crucial evidence from Becky’s side…” and describes alleged failings in the disclosure process. The unusual circumstances in which some of Mrs Vardy’s disclosure was not available is discussed in part two of our series.

Mrs Rooney argued that her ongoing belief in the truth of her post stating that the leaks had come from Mrs Vardy’s account is relevant given that Mrs Vardy’s claim for general and aggravated damages relies on the fact that the post continues to be published online. The court accepted this argument and determined that it would not be appropriate to strike out expressions of Mrs Rooney’s current belief.

The court did however state that Mrs Rooney “cannot give evidence regarding communications to which she was not a party. Commentary on the effect of those communications is a matter of argument for counsel. It has no place in [Mrs Rooney’s] witness statement”. Baring in mind the need to take a proportionate approach, Mrs Vardy’s application was partly successful and certain paragraphs of Mrs Rooney’s statement were struck out.

Paragraphs which are irrelevant, hearsay, unpleaded and/or relate to material that was struck out of Mrs Rooney’s defence

Given that the application was made at the pre-trial review stage of the proceedings, the court considered that it was appropriate to take a generous view of what may be relevant, as it had not yet heard the full range of arguments that the parties will deploy when the substantive issues are tried.

Paragraph 71 of Mrs Rooney’s statement referred to an incident at the 2018 National Television Awards, where former Girls Aloud group member Sarah Harding supposedly caught Mrs Vardy taking photographs of the contents of her handbag, and that the dispute between Ms Harding and Mrs Vardy was subsequently reported in The Sun. This paragraph was objected to by Mrs Vardy on the basis that (i) it is not a matter on which the defendant can give direct evidence (ii) it is irrelevant and (iii) it relates to material that was struck out of the defence. In considering whether to strike out this paragraph, the court stated:

“The hearsay nature of the evidence is a matter that goes to weight rather than admissibility. The fact that the material was struck out of the defence does not, in and of itself, show that it ought to be struck out of the defendant’s statement. Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Paragraph 71 relates to the claimant’s relationship with The Sun and contains an allegation that the claimant took intrusive photographs while working for them. Applying the generous approach to relevance which I consider to be appropriate at this stage, I reject the contention that paragraph 71 should be struck out.”.

However, some aspects of Mrs Vardy’s application were successful. For example, paragraph 85 of the statement was objected to on the basis that it addressed Mrs Rooney’s reaction to disclosure, which is irrelevant. In this paragraph, Mrs Rooney comments on and quotes from the WhatsApp messages between Mrs Vardy and Ms Watt, and describes how she felt when she became aware of the messages during the proceedings. The court found that Mrs Rooney’s commentary on and recitation of these documents had no place in her witness statement, and that the effect on her of reading them did not go to any relevant issue in the proceedings. The court therefore struck out this part of the statement.

The court also considered Mrs Rooney’s application for non-party disclosure, as discussed in part three of our series. The full judgment can be read here.

Witness evidence plays a key role in litigation, and it is important that any statements are compliant with the court rules. Our expert commercial litigation team can assist with navigating the court rules and advise on litigation strategy. For more information, please call us on 020 7632 4300 or make an enquiry.