By Catherine Ramnarine
In civil litigation, each party has a duty to disclose to the Court and the other parties in the proceedings any documents in their control that are directly relevant to the matters in question in the proceedings. This duty extends not only to documents that the disclosing party intends to rely on, but also any documents that adversely affect their case or support the other party’s case. A litigant’s failure to comply with their disclosure obligations can have serious adverse consequences on their litigation prospects, as illustrated by the recent high profile UK case of  EWHC 2017 (QB) Vardy v Rooney, more popularly referred to as the ‘Wagatha Christie’ case.
The parties in that case – Rebekah Vardy and Colleen Rooney – were both married to former England footballers and were referred to colloquially as ‘WAGS’, a slang term used to refer to the wives and girlfriends of sports stars and other celebrities.
On 9th October 2019, Rooney published a post on her Twitter, Facebook and public Instagram accounts. In that post she indicated that one of the followers of her personal (i.e. a separate, non-public) Instagram account had been leaking her private posts to the media. She explained that she had discovered who had been doing this by blocking all of her followers, save one, from viewing her private Instagram posts. This enabled her to test whether her posts would still be leaked to the media, which they were. She then revealed that the account that she had not blocked, i.e., the only account that would have been able to view the leaked posts, belonged to Vardy.
Rooney’s perceived ingenuity in solving the mystery of who had been leaking her private posts led to her being dubbed ‘Wagatha Christie’. However, Vardy strenuously denied being the leaker, and brought a claim against Rooney for defamation.
One of the issues that arose in the case was whether Vardy had used her agent, Caroline Watt, as a conduit to leak information posted by Rooney. In keeping with her duty to disclose any documents that were directly relevant to the proceedings, Vardy was required to disclose her Whats App exchanges with Watt. However, she failed to do so, claiming that these messages had been lost.
Vardy claimed that she had tried to provide copies of the messages to her attorneys using a file sharing platform, but that her computer and phone had crashed while she was attempting to upload the messages and that when she restarted them, the messages had all disappeared. An expert witness testified that it was impossible for the messages to have been lost in the way that Vardy described.
Additionally, the Court had also made an order requiring the inspection of Watt’s phone. However, Watt claimed to have accidentally dropped her phone into the ocean during a family boat trip, shortly after the Order was made.
The Judge did not accept the explanations provided by Vardy and Watt. She noted:
“In my judgment, even taking this evidence on its own, the likelihood that the loss Ms Watt describes was accidental is slim. The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable…In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea.”
Ultimately, the Judge did not find Vardy to be credible. She found that Vardy, with Watt, had indeed leaked Rooney’s private posts to the media. Vardy’s claim was dismissed.
Locally, the Trinidad and Tobago Courts have taken a similar approach to a party’s failure to disclose relevant documents. In CV 4502 of 2010 Brathwaite v The Attorney General, for example, the claimant alleged that he was assaulted and beaten by prison officers. One of the prison officers claimed in the witness box that the claimant had actually assaulted him, and that he had reported this to his supervisor at the time. However, the defendant had not disclosed a copy of that report during the proceedings. The Judge noted that where a party failed to disclose documents it was open to the Court to draw adverse inferences at the trial in relation to the absence of those documents. In that case, the Judge concluded that the report likely contained information that would have been detrimental to the defendant’s case. He ultimately found in favour of the claimant.
The above cases illustrate the importance of complying with disclosure obligations in civil litigation. A party to litigation cannot hold back documents, even if they perceive them to be damaging to their case. While specific exceptions exist, such as legal privilege, it is important for litigants to discuss their disclosure obligations with their attorneys and to obtain proper legal advice. It is also important for parties to pro-actively take steps to preserve any relevant documents – including electronic documents or less formal communications such as those sent using social media and messaging platforms – as soon as litigation is contemplated, and to be thoughtful about any documents that they create during the course of litigation.
There can be significant sanctions and adverse consequences for parties who fail to comply with their disclosure obligations.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.