I wrote last week about the pre-trial hearing in the libel action between Rebecca Vardy and Coleen Rooney. My only source was a news report in the Times, from which the points of passing interest for disclosure enthusiasts concerned a phone dropped into the North Sea and WhatsApp data which had curiously gone missing in transit to lawyers.

The judgment covers more than these things and more than disclosure – Gordon Exall has written, for example, about the delay points which arose. There are a few disclosure elements beyond the lost phone and the WhatsApp data which are worth mentioning.

We learn nothing new about the drowned phone, and it will be for the trial judge to consider this, including the question whether the phone and its contents matter much in the wider scheme of things.

We learn a bit more about the WhatsApp data. There is a point about an attempt at redaction in paragraph 133 i):

The documents disclosed by the claimant were, the defendant contends, improperly redacted, withholding information that falls within the standard disclosure test. As a result of a software error, the defendant’s representatives were able to see the material that the claimant’s representatives had attempted to redact. The defendant submits the claimant’s failed redactions clearly demonstrate that the claimant has applied a narrower test than required by CPR 31.6 and has not met her standard disclosure obligations.

Many people would quite like to know what caused the redaction failure, if only to make sure that they did not make the same mistake themselves. We are told only that there was a “software error”. We don’t hear much about redaction errors now – there was a time when they were frequent, because users did not understand Acrobat’s two-stage process, or through a naive expectation that simply colouring text white would obscure it irreversibly, or because OCR’d text survived subsequent redaction. Both technology and user skills have moved on since then, and I am sure that none of these applied here. What was it though?

What is more important is whether the text which was the subject of the failed redaction was material which should have been disclosed anyway – did it meet the test in CPR 31.6 as to the scope of disclosure? The judge concluded that it did and therefore that the attempt at redaction was improper. Counsel nobly made it clear that the misjudgement was his.

More interesting, from a technical point of view, is the data which went missing on the transfer to the lawyers. The story appears in paragraph 133 ii) a) as follows:

Missing from the claimant’s disclosure of her WhatsApp communications with the respondent are any images or audio files, although it is apparent from the disclosure that such files existed. The evidence on behalf of the claimant states that, at the outset of the litigation, in the process of exporting the claimant’s entire WhatsApp chat to an Intralinks workspace created by her solicitors, due to difficulties with the upload the claimant selected the option to remove the images, audio files and videos. The claimant’s computer crashed twice when attempting to upload the material. Ms Harris states: “During the process of exporting the data the images, audio files and videos completely disappeared from the Claimant’s WhatsApp conversation with Ms Watt.” The defendant relies on a note written by Mr Ian Henderson, the claimant’s digital forensics expert, who describes what occurred as ‘somewhat surprising’, although the possible result of ‘an unusual combination of actions or events’. The WhatsApp communications were not backed up and the images, audio files and videos have been found to no longer exist.

Though we can’t say whether or not all this is true, we can consider whether it is plausible. Anyone who has tried uploading material will know of those occasions when something appears not to work, and you stab hopefully and then desperately at every button in sight. That “unusual combination of actions or events” bedevils all sorts of computer activities. The judge sensibly said this:

it may be said to be more important to ensure that such relevant documents as exist are disclosed in circumstances where some potentially relevant information no longer exists.

Testing the plausibility of stories and the veracity of witnesses must await trial. Coincidentally, another judgment delivered this week in ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors gave us an example of assertions made about missing data which fell to pieces under cross-examination. Who knows what the WAGs’ trial will produce?

Various other disclosure related points came up in this judgment which are worth mentioning without detailed analysis. These include:

Collateral use of documents

The subject here is documents disclosed in one set of proceedings which a party seeks to use in another (paragraph 80-95). The judge said that there are “important public interests underlying the rule against collateral use, [and] the defendant has failed to satisfy the burden on her to show that permission should be granted.”

Search, disclosure and inspection: the material CPR provisions and guidance

Both parties made applications in relation to the other party’s disclosure and (starting at paragraph 114) the judge helpfully summarised the test for standard disclosure in CPR 31.6, the duty of search in CPR 31.70, the definition of control in CPR 31.8 and the circumstances in which the court may make an order for specific disclosure or inspection in CPR 31.12. The judge also went through the relevant provisions of practice directions 31A and 31B, including the extent of “the reasonable search”. It does no one any harm to refresh their memories on these provisions from time to time.

Train of enquiry documents / a Peruvian Guano order

The judge also considered (from paragraph 125) the circumstances in which application for specific disclosure may be made – for better disclosure within standard disclosure or for train of enquiry documents falling outside standard disclosure. The judgment descends (inevitably and properly) into a mass of detail not worth summarising here, but this is a judgment to come back to if you seek disclosure beyond standard disclosure (I should point out, if it is not clear already, that this is not a case to which the Disclosure Pilot applies which is why all the references are to the “old” rules.)

The judgment includes several paragraphs in which the judge painstakingly analyses what had been done in respect of disclosure, and what the effect would be of making the orders now sought. Only one lesson of general application emerges from all this – with every decision made in the course of disclosure, and for every draft application for further or enhanced disclosure, it pays to consider what it will look like when analysed by a judge.

The Instagram application (from paragraph 190)

As one might expect in a case which originated with Instagram posts, the parties had considered the best way of accessing Instagram data and had agreed to get expert evidence on “how [Instagram] operates and an analysis of relevant Instagram data and relevant data on relevant personal devices”. They had discussed prospective approaches to Instagram for information and whether this might best be done separately or jointly.

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In looking at these judgments, I always like to consider what lessons of lasting value come out of them. There is nothing new in this judgment, but it is a useful memory-jogger across a range of subjects.

As I write, there is much discussion going on about Prince Andrew’s settlement with Virginia Giuffre, including much uninformed commentary both specifically on that case and generally on the reasons why people settle. The only conclusion I can draw from this WAGs judgment is that your dispute perhaps ceases to be worth litigating once you are paying expensive lawyers to plough through your WhatsApp and Instagram data from years ago. We can assume that lawyers of the calibre involved here will have explained the disclosure implications, and we can picture two angry parties skipping over all that in their enthusiasm to get at each other. What does it feel like, though, to wake up every day to lawyers’ questions about WhatsApp messages of long ago?

At the end of the film Silver Streak, the characters are on a train heading fast for the buffers, with the throttle jammed open and the brakes disabled. Many litigants feel like that, with the added element that the costs, as well as the tension, keep racking up. Prince Andrew must be “guilty”, people say because he settled. Even less thoughtfully, people imply that Virginia Giuffre had some kind of duty to keep fighting. I wonder if the WAGs sometimes wish they had just got on with their lives.

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