2 August 2022
There are two sorts of legal blogging that I most enjoy.
One is a close reading of a document: working out how the document was put together, and reckoning the significance of what is said – and not said.
The other is a detailed examination of a legal case in the news: answering the question of “how the Hell did this end up in court?”
Both sorts of blogposts, if done well, are very satisfying to write and seem popular to read.
Other sorts of legal blogs – from expositions of black letter law to articulations of some view point – can also be interesting.
But only with the two sorts I like doing best do I get the sheer thrill of taking something topical and, by careful analysis, producing something new for people to consider.
The one problem, however, with writing about topical cases is that you often have to take them as you find them.
The subject matter of a case may be of no interest – or it may even be about something you dislike or even hate.
But with such cases it can still be worth asking that key question: “how the Hell did this end up in court?”
And by answering this question you understand a lot more about the case in the news – and about law and legal practice generally.
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Over at Prospect I have done a detailed analysis of how the Hell the “Wagatha Christie” case ended up in court.
I have no particular interest in the WAG phenomenon.
(Though I admit I enjoyed the defendant’s initial reveal post – and I assumed wrongly that she must have put her published reasoning together with the help of legal advice, but she did not.)
I also have no particular regard for the football players to whom the parties are married.
(Neither of them play or played for Aston Villa, Wolves or Nottingham Forest, which are the teams I follow.)
But I found the case fascinating – not least because this was a case that plainly should never have gone to court.
How the Hell did this end up in court?
It was a case that should have settled the moment the claimant realised the adverse evidence that was going to be put in at trial.
No technical win could be worth the impending PR disaster.
It was even a case that, given what the claimant knew even if she did not herself leak the information, should never have even been brought.
And this was notwithstanding that the claimant’s case was strong and she could have won the case, given what the defence had to prove and the the structure of libel law.
It was just a “Nooooooooooooooo” sort of case.
But the case was brought and not settled and it ended in a mess.
Cases that go to trial are often inherently interesting – they are exceptional.
By understanding what happens with cases that do end up in court, you also can gain a better understanding of why most such civil cases do not end up going to trial.
And this means you can have a better understanding of how the legal system works (or does not work) more widely.
As Ben Goldacre – whose science blogging was a model for my early legal blogging – once said: by understanding “bad science” you can get an understanding of good science.
Similarly by looking carefully at how cases get to trial you can get insights at how litigation works more generally.
Please do have a read of my Prospect piece – and come back and leave any sensible comment.
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Forgive me blowing this here trumpet:
Excellent analysis by @davidallengreen https://t.co/OhXKk8dVnt
— Joshua Rozenberg (@JoshuaRozenberg) August 2, 2022
This is a superlative piece by @davidallengreen. https://t.co/hPKhZZYsEq
— The Secret Barrister (@BarristerSecret) August 2, 2022
Best read with a double espresso from the great @davidallengreen – if not for enjoying the deft navigation of the litigation then for for that last paragraph spit-take. https://t.co/ktUqLuJJMI
— Dr Joelle Grogan (@JoelleGrogan) August 2, 2022
A definitive analysis of the Wagatha Christie case – bravo @davidallengreen 👏👇https://t.co/01RW4VMLgv
— Gemma Abbott (@gem_abbott) August 2, 2022
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If the weekend press is to be believed then Colleen Rooney may be about to snatch defeat from the jaws of victory as I saw reports that she is ‘considering’ a counter suit claiming that the libel court action by Mrs Vardy in fact defamed her.
Hopefully that is only silly musings by journalists seeking copy.
I’m not sure about that: letting it be known that you are ‘considering’ action is one way to get revenge.
You don’t have to actually take action, just let your opponent know you are considering it.
It sounds a smart move to me.
I think it must be. Aren’t court proceedings the subject of an absolute privilege? That would be something of an obstacle to founding a defamation action on anything said in the course of litigation.
*Emotion as a defect of rationality*. The case provides insight into the impact of emotion that implicate law and legal decision-making. The dominant notion of (legal) rationality until your final conclusion. “It was……….Rebekah Vardy (‘s emotions)
Ah, Ben Goldacre! I still from time to time refer people to his Guardian piece on homeopathy from 14 years ago, which very elegantly described both the need for and the methods used in double-blind clinical trials of new medications, and also how people sometimes try to cheat on those trials to get a favourable result. If you’re modelling yourself on him, you’ve chosen well!
“A kind of magic?”
https://www.theguardian.com/science/2007/nov/16/sciencenews.g2
From reading the judgment, one factor that struck me was that the claimant and perhaps her agent seemed to have a mindset of “everybody’s doing it”. It appeared that they may have used this belief to:
1. Persuade themselves that nobody could ever prove it was them because everybody else was leaking too.
2. Persuade themselves that there was nothing wrong with their actions.
3. Persuade themselves that nobody is “better, purer, cleaner” than them, that everybody is equally “down in the dirt”.
Leading potentially to some wishful thinking such as “the judge will see that I’m no worse than anyone else here and that I shouldn’t be punished”….
I agree with your line of thinking, but I would suggest that in this particular case, Mrs. Vardy’s motives might have been more complicated than just a generous dose of self-deception.
The judgement documents repeated attempts by Mrs. Vardy to generate both (positive) publicity and income for herself – in particular her contrivances to get paparazzi shots of the WAGs during competitions (tipping off a photographer when the wives were going out to an evening meal; ignoring a seating plan and taking a seat directly behind Mrs. Rooney for a paparazzi shot and so on).
But then we also see some coldly vicious comments. For example during a 2019 interview, Mrs. Vardy gave a particularly memorable quote:
“Arguing with Coleen is like arguing with a pigeon. You can tell it that you are right and it is wrong but it’s still going to s**t in your hair.”
There’s a real streak of spite there, IMHO.
I wonder if there may be a tendency for interested observers to read a court judgment and think the result was inevitable all along. But perhaps that is part of the art of writing a judgment – for the judge to structure their analysis to demonstrate that the law and evidence drives them to one conclusion.
This is not the first case where one party seemed to have a strong position, but their evidence has turned to dust, and witnesses have not appeared or not come up to proof.
The judge clearly preferred the evidence given by Rooney (“In my judgment, Ms Rooney was an honest and reliable witness. … Her evidence was consistent with the contemporaneous evidence … When she was challenged … her evidence was clear and compelling”) over the evidence that given by Vardy (“… I find that it is, unfortunately, necessary to treat Ms Vardy’s evidence with very considerable caution. There were many occasions when her evidence was manifestly inconsistent with the contemporaneous documentary evidence … and others where she was evasive…”)
Rooney’s lawyers did considerable legwork to sift through the disclosures and find damning evidence to support her case, all but one of Vardy’s supporting witnesses failed to appear, and the judge was quite prepared to draw adverse inferences from the accidental or deliberate gaps in the evidence. Oh dear.
The case going to court hinged on the various legal proceedings leading up to that step. I suspect the claimant must have felt that her strong case became invincible when the judge ruled the “Wagatha Christie” post should be taken as directed at Vardy personally and not at Vardy’s Instagram account. The defendant had to prove Vardy personally leaked the fake post to the Sun and did not have conclusive evidence to do so.
The claimant having concluded they couldn’t lose it was obviously worth proceeding to court. However her legal team should have realised how damaging the loss of the WhatsApp data shortly after it was requested would be and advised accordingly. Vardy’s statement after the case about “the wrong verdict” hints that she had been assured she would win. Could the reputation of a wag ever be worth risking that much to defend?
In contrast the defendant’s legal team seem to have played a weak hand very well. I wonder how often defamation cases have been decided by the lack of evidence from the claimant rather than direct evidence produced by the defence?
Schadenfreude-esq enjoyment.
There only winners in this case were the media, and possibly anyone who wanted to sneak out any bad news under the cover of this.
Has anyone checked Government announcements for last week?
One of the difficulties I have had with the case as a non lawyer is that the reveal looked so bullet proof.
If Rooney did do what she claimed, then it was Vardy’s account (as she so carefully said).
I do not understand the earlier judgement that resulted in her having to make the case that it was specifically Vardy.
Hardly surprising that she would have to amend her defense if she’s suddenly asked to defend a different case.
You have referred to that particular judgement as one you don’t agree with. Would there be merit in examining that part of the case?
I also am surprised that Vardy didn’t just say that her account had been hacked right at the outset.
Your analysis of the legal process here was, as ever, excellent. I am also interested from the non-legal, human point of view. Rebekah Vardy strikes me as being a) quite stupid and b) engrossed in the me-me-me behaviour I mentioned in another post. I think this behaviour is caught up in the Age of the Game Show, where the show counts more than the facts – as demonstrated by Donald Trump and our current political lot, and sadly Rebekah Vardy. I say sadly as it is distressing to see someone so publicly damage their life so spectacularly.
The law of homicide allows for the effect of emotion upon the defendant, reducing murder to manslaughter. Civil litigants shouldn’t be expected to be paragons of reason and logic. Why did Rebekah Vardy bring the case? To vindicate her reputation she said. But her reputation in which community? Her reputation among the WAGs. If she didn’t clear herself of Colleen Rooney’s allegation, then she’d be eating lunch by herself in Qatar later this year. Who’d want to be around her, knowing that your every word could be memorialized for posterity in the pages of the Sun? (She’ll surely be eating lunch by herself in Qatar in light of the judgment.)
Why no settlement? I put a high discount value on statements along the lines of “I didn’t want to go to trial, and I made a reasonable offer, but the other side wanted ___.” Colleen Rooney knew she was right, and if it cost a couple of years of Wayne’s salary to show the world that she was right, so be it. And remember where the articles were published — the Sun, hardly viewed on Merseyside as an emblem of journalistic integrity.
At almost the opposite end of the spectrum to the Wagatha Christie trial, back in 2003 a small technology company, “The SCO Group”, decided to sue IBM (yes, that IBM) for billions of dollars, claiming various different forms of intellectual property infringement (e.g. copyright).
This and several closely related cases, also brought by or involving The SCO Group, were reviewed and examined in exquisite detail by a US paralegal and blogger by the name of Pamela Jones (PJ). Her web site, Groklaw, went on to win numerous awards for the clarity and insight she brought to an otherwise incredibly complex set of cases.
Her insight allowed for a review of motion practice in real time and the community got behind the case and surfaced a vast amount of “prior art” and other contextually relevant information that was ultimately useful to establish fact.
I hope David will forgive me for mentioning a different legal commentator (hopefully the fact that Groklaw has now been shuttered for nearly 10 years is some mitigation). I mention it here because I was at the time involved in a not entirely dissimilar dispute between my employer and a third party. I had no understanding of the terminology, the approach, the responsibilities.
I absorbed Groklaw like a sponge – it’s incredibly accessible, even though it covers a somewhat technical and dry subject.
It’s an excellent introduction to motion practice, how to conduct discovery, how to understand motion practice, how to amend a complaint, how to challenge unreasonable discovery, how to tell a Court that an adversary is trying to play fast and loose with the rules.
If you have a general interest in legal practices [obviously, Groklaw is a US site discussing US law] then it will prove insightful and entertaining.
http://Www.Groklaw.net
Apropos nothing in particular, I note in passing that the Prospect article doesn’t use single-sentence paragraphs.
I think you could summarise the whole analysis with “Most people like to gossip, but no-one likes being called a gossip.”