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and Ms Watt had initially waived their rights to confidential source protection but Ms Watt’s waiver was subsequently withdrawn.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.