Rebekah Vardy v Coleen Rooney

Reference: [2022] EWHC 1209 (QB)

Court: High Court, Queen’s Bench Division, Media & Communications List

Judge: Steyn J

Date of judgment: 29 Apr 2022

Summary: Libel – disclosure – journalistic sources – section 10 Contempt of Court Act 1981 – Article 10 ECHR – waiver – witness summonses

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Appearances: David Sherborne (Defendant)  Ben Hamer (Defendant)  Adam Wolanski QC - Leading Counsel (Respondent)  Clara Hamer (Respondent) 

Instructing Solicitors: Brabners LLP for Defendant; Simons Muirhead Burton LLP for News Group Newspapers Ltd

Facts

Rebekah Vardy brought a claim in libel against Coleen Rooney over an Instagram and Twitter post that alleged she had leaked information from Mrs Rooney’s private Instagram to The Sun newspaper. Summaries of earlier judgments relating to the determination of meaning and Mrs Vardy’s application for summary judgment can be found here and here.

In her defence of truth, Mrs Rooney alleged that Mrs Vardy was the source of certain newspaper articles which had appeared in The Sun, either directly or indirectly via her agent, Caroline Watt. Mrs Vardy denied this.

At the pre-trial review on 13 April 2022, Mrs Rooney applied for third party disclosure against News Group Newspapers Ltd (“NGN”), the publisher of The Sun, of communications between Mrs Vardy and Ms Watt and a number of NGN journalists. Mrs Justice Steyn granted the application in relation to one journalist, but made provision for NGN to assert a right or duty to withhold inspection of any documents falling within the scope of the order on the basis of journalistic source protection under section 10 of the Contempt of Court Act 1981 (the “Disclosure Order”). Mrs Justice Steyn’s judgment dated 21 April 2022 giving her reasons for making the Disclosure Order can be found here. Mrs Vardy and Ms Watt had initially waived their rights to confidential source protection but Ms Watt’s waiver was subsequently withdrawn.

NGN subsequently asserted that, pursuant to section 10 and/or the protection of journalistic sources under Article 10 ECHR, it could neither confirm nor deny whether it had documents within its control falling within the scope of the Disclosure Order, and it was not possible to give reasons for withholding any documents or information which it may be withholding. 

Three journalists also applied to set aside witness summonses in relation to each of them on the basis that questioning would or was likely to disclose the identity of their source or sources.

Mrs Rooney and Mrs Vardy challenged NGN’s and the journalists’ reliance on section 10 of the Contempt of Court Act 1981, and Mrs Rooney applied for an order compelling NGN to provide any documents falling within the scope of the Disclosure Order.

Mrs Vardy argued that section 10 was not engaged at all: section 10 was confined to the protection of confidential sources and, on the hypothesis that she was the source, she had waived any source protection rights; on the alternative hypothesis that someone else was the source, NGN had not established a reasonable chance or serious risk of compromising the source’s identity. Mrs Vardy did not contend that if other individuals’ source protection rights were engaged then they were overridden by necessity in the interests of justice.

Mrs Rooney questioned whether section 10 was engaged in circumstances where both Mrs Vardy and Ms Watt had provided waivers allowing them to be identified as sources but argued that, on the assumption that section 10 was engaged, disclosure should nevertheless be ordered in the interests of justice. Mrs Rooney contended that the documents sought would have been disclosed by Mrs Vardy but for their loss or destruction, the evidence could be decisive, the waivers were important factors, and source protection should be limited because Mrs Rooney believed Mrs Vardy to be the source and the information in question was gossip leaked for venal purposes.

Issue

  1. Whether section 10 of the Contempt of Court Act 1981 was engaged; and
  2. (In relation to Mrs Rooney’s application) if so, whether it was necessary in the interests of justice to override the protection of journalistic sources.

Held

  1. NGN and its journalists were entitled to rely on section 10 of the Contempt of Court Act 1981 notwithstanding any purported waiver of source protection rights by Mrs Vardy or Ms Watt. There was nothing in the section to indicate that the term “source” had to be construed narrowly to mean a confidential source, and ECtHR cases such as Becker v Norway (app 21272/12) made clear that source protection rights under Article 10 ECHR extend to sources who are not confidential or unknown [26]-[27]. In any event, Mrs Vardy denied being the source so her purported waiver did not put her in the same position as someone who had provided information to the media ‘on-the-record’ in the first instance or who had subsequently come forward and publicly divulged that they were the source [56]-[57] and there was a serious risk or reasonable chance that questioning the journalists on the witness summaries was or was likely to disclose the identity of a source or sources [58]-[59]. Accordingly, the journalists’ application to set aside the witness summonses was granted.
  2. For the same reasons, section 10 of the Contempt of Court Act 1981 was also engaged by the Disclosure Order. Ms Watt’s waiver had been withdrawn, and even if it had not been, it would not prevent section 10 being engaged [64]. It was not possible for NGN to give reasons for withholding any documents or information which it might be withholding without undermining the source protection [65].
  3. It was not necessary in the interests of justice to override the journalistic source protection rights that were engaged. Although the documents were relevant and could be highly significant, neither party contended that they would be unable to maintain or defend the claim without such disclosure, and even if that were the case that would not in and of itself be sufficient to override the source protection rights [71]-[72]. Although Mrs Vardy’s waiver was a factor to be weighed in the balance, no weight could be placed on Ms Watt’s waiver as there was evidence that it had been withdrawn [73]-[74]. The fact that Mrs Rooney believed Mrs Vardy and her agent to be the source did not significantly lessen the public interest in source protection [75]-[76]. Although the newspaper articles in question were at the lower end of the hierarchy of free speech (they were mere gossip), this did not diminish the high importance of source protection rights, and the court was not in a position to determine the sources’ motives for providing any information to The Sun. Accordingly, Mrs Rooney’s application for an order compelling NGN to provide documents was refused [77]-[79].

Comment

This case provides a good illustration of the principles involved when the court is asked to order someone to provide documents or answer questions which will or are likely to disclose the identity of the source or sources of information contained in a publication for which they are responsible, engaging section 10 of the Contempt of Court Act 1981. It also demonstrates the strength and breadth of the protection provided by section 10 and Article 10 ECHR: even in circumstances where the identity of the source was the central issue in the Defendant’s truth defence, and where the Claimant had purported to waive any source protection rights which she may have had, the Court was still not prepared to override the “high public importance” of the protection of journalistic sources.