Somewhere at the bottom of the North Sea is a mobile phone which may hold the evidence Coleen Rooney needs to win next week’s “Wagatha Christie” libel trial at the high court in London. Unfortunately for the footballer’s wife, her only hope of retrieving the device – and any relevant WhatsApp messages it could still hold – is if a fishing trawler happens to dredge up the phone before her case starts on Monday.
The celebrity libel trial of year is finally due to get under way after more than £1m in legal fees, the publication of excruciating private conversations, and revelations about the interactions between footballer’s wives and tabloid journalists.
On one side is Coleen Rooney, who has spent most of her life in the public eye as the wife of former England player Wayne Rooney. Stories about her private life have always been catnip to the tabloid press, with paparazzi once receiving many thousands of pounds for exclusive photographs of her. Almost three years ago Rooney ran an elaborate sting operation to try to catch the person who was leaking stories about her family from her private Instagram account to journalists at the Sun.
On the other side is Rebekah Vardy, the wife of Leicester City’s Jamie Vardy, a late arrival on the footballers’ wives scene who – court disclosures suggest – had conversations with her agent about selling stories about a drink-driving incident involving her husband’s ex-teammate Danny Drinkwater to journalists at the Sun. In one exchange she appeared to suggest that her agent passed a story to the tabloid newspaper and added: “I want paying for this x”.
After Rooney’s extensive sleuthing as to who was leaking from her Instagram – earning her the nickname “Wagatha Christie” – in October 2019 she made the public accusation that launched the lengthy proceedings: “Now I know for certain which account / individual it’s come from. I have saved and screenshotted all the original stories which clearly show just one person has viewed them. It’s………… Rebekah Vardy’s account.”
The issue is that Vardy has always denied being the leaker and starting legal proceedings, claiming Rooney defamed her with a false allegation. Under English libel law, it is up to Rooney to justify her original accusation. And, amid the accidental loss of potentially key evidence by Vardy and her team, Rooney has yet to locate a smoking gun.
Take the phone at the bottom of the North Sea, which belonged to Vardy’s agent Caroline Watt. Last summer, with legal proceedings in full swing, Rooney’s lawyers asked to search the device for WhatsApp messages that could help their case. The high court heard that shortly afterwards – and before the phone could be searched – Watt was on a boat trip off the British coast when it hit a large wave and she accidentally dropped her mobile phone into the sea, losing its contents. The incident was described as “most unfortunate” by Rooney’s lawyers.
A separate set of potentially relevant WhatsApp messages held by Vardy was backed up by her IT expert but the court heard that they had unfortunately “forgotten the password”. The laptop Vardy used during the relevant period is no longer working. Watt’s Twitter account has also been deleted. Jamie Vardy himself lost access to his WhatsApp messages, with the court informed they had been hacked.
And the Sun is resisting attempts to disclose any messages from Watt and Vardy potentially held by its reporter Andy Halls, citing the rights of a free press and journalists to protects their sources. In response, Rooney’s lawyers claim they are being denied a fair trial due to a lack of evidence.
Mark Stephens QC, a leading media lawyer at Howard Kennedy, told the Guardian’s Today in Focus podcast that the case was “almost unique in libel history, because it’s untrammelled by evidence”.
He added: “Destroying evidence deliberately is a very serious matter. But there’s no suggestion that that happened. It does seem there was an unfortunate series of events which has meant this case can’t be properly proved.”
The defining moment in the case may have come with a court ruling in late 2020. While Rooney had originally written that “Rebekah Vardy’s account” was responsible for leaking the Instagram stories to the Sun, Mr Justice Warby ruled that the true meaning of those words – on which the libel trial will be fought – was that Vardy was personally responsible for the leaking. As a result Rooney either has to prove it was Vardy herself – rather than someone else with access to Vardy’s Instagram account – who leaked stories to the Sun, or convince a judge that the publication of the allegation was in the public interest.
In the absence of conclusive evidence, Rooney and her legal team have instead had to build a case based on inference. They argue that since Vardy had dealings with the Sun and talked about selling stories to the newspaper it is reasonable to conclude she was the leaker on this occasion. The court also heard that Vardy, for her part, has suggested at the last minute that Watt, her agent, may have “betrayed” her and leaked the relevant stories without her knowledge.
On Monday a six-day trial will get under way. Watt now says she is too unwell to give evidence but Wayne Rooney could be called as a witness. There is a waiting list for tickets to attend the small wood-panelled Victorian courtroom in central London, with officials already arranging an overspill room given the level of media interest in the case.
Vardy’s reputation has taken a further battering as a result of her decision to bring the libel case, after messages showed her saying she would “love” to leak stories about Rooney and may have called her supposed friend a “bitch”. However, Vardy could decide it was a gamble worth winning if she is vindicated by a libel win – with the loser facing a million-pound legal bill.
Stephens said Rooney’s team face an uphill challenge under English libel law: “I think that Vardy wins this on a technicality because there’s no evidence that Coleen has that can prove it.”
Listen to the Guardian’s Today in Focus podcast on the case: