Rebekah Vardy v Coleen Rooney

Third-party disclosure is exceptional. Under CPR 31.17, the applicant must show that each document sought is likely to assist its case or harm another party’s case, and that disclosure is necessary to dispose fairly of the claim or save costs. A broad request based on inference alone may be a fishing expedition. Even where both conditions are met, the court must exercise its discretion proportionately, considering the burden on the non-party and wider interests.

Permission to use witness summaries requires a separate application under CPR 32.9. Relief from sanctions is assessed using the three-stage approach in Denton. Witness statements should contain relevant and admissible evidence, not commentary, argument or recitation of documents. Pre-trial intervention requires particular caution, and material should be removed only where its irrelevance or inadequacy is sufficiently clear.

The claimant brought a libel claim concerning a social-media post alleging that she had passed private information from the defendant’s Instagram account to The Sun. The defendant pleaded truth and public interest. At a pre-trial review before the listed trial, the court determined three interlocutory applications.

The defendant sought non-party disclosure from the newspaper’s publisher under CPR 31.17. The claimant sought retrospective permission and relief from sanctions to rely on witness summaries for journalists. She also sought removal of extensive material from the defendant’s witness statement under the court’s evidence-control powers.

1. Third-party disclosure. The court applied the three requirements under CPR 31.17(3). The documents had to be shown, document by document, to be likely to support the applicant’s case or adversely affect another party’s case. In a class request, the court must guard against loosely defined categories and fishing expeditions. Disclosure must also be necessary to dispose fairly of the claim or save costs. Only after those conditions are met does the discretionary and proportionate balancing exercise arise, including the wider rights and interests of the non-party.
2. The communications involving Andrew Halls were likely to assist the defendant’s pleaded case and were necessary because equivalent sources of the material had been exhausted or were unlikely to produce it. The limited order was proportionate. The evidence concerning the other eight journalists did not establish that relevant written communications existed. That part of the application was therefore a fishing expedition and was refused.
3. Witness summaries and sanctions. The orders contemplating witness summaries did not themselves grant permission to serve them. CPR 32.9 required an application where a party was unable to obtain a witness statement. The failure to apply in time was significant and lacked a good reason. Applying CPR 3.9 and the three-stage approach in Denton, however, the interests of justice justified retrospective permission and relief for Halls, Simon Boyle, Michael Hamilton and Amy Brookbanks. Their evidence was potentially relevant and concerned matters at the core of the claim. Permission was refused for Rachel Dale and Stephen Moyes because their relevance was insufficiently established and their evidence concerned a peripheral article.
4. Witness statements. Under CPR 32.1 and CPR 32.4, witness statements should contain the evidence the witness could properly give orally. Commentary on documents, submissions, argument and opinion generally belong to advocates, not witnesses. Applying the cautious approach in Wilkinson v West Coast Capital, the court removed the specified passages from the defendant’s statement, while retaining material that could be direct evidence, relevant background or potentially relevant to aggravated damages. The objections to the claimant’s statement were rejected as disproportionate.

The applications were allowed or refused in accordance with those conclusions.

First-instance interlocutory judgment at a pre-trial review. The substantive libel trial was listed to begin on 9 May 2022.