It is trite procedural law that a party, whether that be the Claimant or Defendant, has an obligation to preserve all evidence whether it helps or does not help their case from the start of their claim up to a determination.
The objective of this rule is obvious; the original version of evidence should be available for inspection if required throughout the claim whether that evidence is being relied upon by the parties or not.
The consequences of breaching this rule were discussed in the recent defamation case of Vardy v Rooney  EWHC 2017 (QB). The facts of the case are well reported in the media and raise some interesting insights into to the civil procedural rules of the Courts in England and Wales.
In the above case, the Claimant Mrs Vardy, and one of her witnesses, Mrs Vardy’s agent Ms Watt’s, suffered the unfortunate occasion of the destruction of evidence relating to Whatsapp messages between Mrs Vardy and Ms Watts on three occasions.
The Whatsapp messages were material to the evidence in the case as they comprised the chain of communication between Mrs Vardy and her agent around the time of the alleged leaking of Mrs Rooney’s personal matters to the press. The three occasions of destruction are described in further detail below.
Firstly, Mrs Vardy’s Whatsapp messages with her Agent Ms Watts were allegedly accidentally deleted when Mrs Vardy attempted to transfer the Whatsapp history to her Solicitors document cloud platform.
Secondly, Mrs Vardy admitted that she disposed of a laptop which contained the zip file containing the Whatsapp chat history, after she had been told to preserve all the evidence. Mrs Vardy alleged that the laptop was defective and beyond repair.
Thirdly, in light of the deficiencies in the evidence caused by the two events above, Mrs Vardy’s agent Ms Watts was ordered to disclose her mobile phone to the Court for inspection of the Whatsapp messages. The order was made at a hearing on 4 August 2021, however Ms Watt stated that she had lost her phone at sea that very same month, meaning the phone could not be proffered for examination. The judge commented within her judgment, “The timing is striking. In my judgment, even taking this evidence on its own, the likelihood that the loss Ms Watt describes was accidental is slim.”
On the first event, the Court ordered examination of Mrs Vardy’s account of events, by ordering the provision of expert evidence from two expert witnesses specialising in technology. Both experts assessed the possibility of the alleged inadvertent deletion of Mrs Vardy’s and Ms Watt’s Whatsapp messages due to the alleged malfunction and whether this was plausible in fact. Mrs Rooney’s expert stated that malfunction resulting in deletion was not possible as Mrs Vardy had confirmed the malfunction took place after the download required the Whatsapp intervention, and Ms Vardy’s expert stated they did not feel able to conclude that the loss was most likely to be due to manual deletion, and that he found Ms Vardy’s explanation of how the loss occurred “surprising”. The fact that Mrs Vardy has also disposed of her allegedly defective laptop, was also considered by the Judge in her reasoning to side with Mrs Rooney’s evidence. The significance of the basis of the loss or destruction of evidence is due to the Courts’ ability to draw an adverse inference when a party does not comply with their obligations of the preservation of evidence. An adverse inference can be detrimental to a case, as although an adverse inference alone cannot declare the defaulting party as liable, it will allow the Court to cast doubt on the defaulting party’s case. In this case the Judge determined the destruction of evidence to be speculative, and as such the Court was able to draw an adverse inference against Mrs Vardy which may well have assisted the Court in deciding against Mrs Vardy.
The judge’s comments in the case were “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. I recognise that Ms Vardy has disclosed messages that are detrimental to her case. But I am not persuaded that the imperfection of the effort to remove incriminating evidence shows that there was no such attempt, particularly given that Ms Vardy is unlikely to have anticipated in October 2019 that evidence about, for example, Mr Drinkwater, would have to be disclosed.” There is therefore no doubt that Vardy v Rooney  emphasises the importance of a Solicitor ensuring their client is aware of and complies with their obligations of the preservation of evidence, and in light of the result of the protracted legal case, the Court will not accept unjustified and unproven allegations of accidental loss of evidence.
If you have any questions regarding your Solicitor’s advice in terms of Civil Procedure Rules and how that may have affected the outcome of your case, give us a call on 020 7251 9900.