“MISSING” WHATSAPP POSTS AND A PHONE LOST AT SEA: WHAT INFERENCES WOULD THE COURT DRAW?
The facts in Vardy v Rooney  EWHC 2017 (QB) are well known and have received wide publicity. Here we look solely at the evidential issues relating to the “missing” evidence. In particular the amount of WhatsApp material that went “missing” and the mobile phone that was said to be accidentally dropped in the sea.
The claimant brought proceedings against the defendant who had alleged that the claimant had disclosed private information to the media. It was admitted that the defendant’s words were defamatory. However the defendant asserted that the words were true. The trial took place on this issue. The claimant had communicated by WhatsApp to a large degree, with her agent. Numerous WhattsApp posts had been deleted from the Claimant’s system. Shortly after the agent had been ordered to hand over her phone for examination it was, said to be accidentally, dropped in the North Sea.
The defendant succeeded in the “truth” defence.
THE JUDGE’S CONSIDERATION OF THE MISSING EVIDENCE
The judge was highly sceptical, and did not accept, the claimant’s explanation in relation to the deleted WhatsApp material. Further she was equally sceptical about the argument that the phone had “accidentally” been lost at sea.
53.I heard evidence from two experts in the field of computer forensics on the use of Instagram and how it operates, and the digital analysis of data provided by the parties from their devices. The claimant’s expert was Mr Ian Henderson and the defendant’s expert was Mr Matthew Blackband. Both experts were well qualified and, in my judgment, sought to assist the court by giving their true, independent opinions on the matters they were asked to address. Mr Blackband’s report was not, initially, in the proper form for an expert report. However, that error was rectified and I accept his evidence that he fully complied with the relevant CPR provisions, but erroneously adopted a template used at an earlier stage of the case.
54.The expert evidence provides helpful background information regarding the operation of Instagram, and it is highly relevant in considering the allegations of destruction of evidence which I address below. However, despite the time and expertise devoted to seeing whether the experts could establish responsibility for leaking of Ms Rooney’s posts, it is clear, as Mr Tomlinson submitted, that technical evidence cannot provide an answer to that question.
Availability of – and gaps in – the documentary evidence
55.The parties adduced about 3,000 pages of documentary evidence (leaving aside witness statements, summaries etc). This consisted largely of contemporaneous Instagram stories or posts, messages on various platforms, and newspaper articles.
56.The WhatsApp exchanges between Ms Vardy and Ms Watt during the period when Ms Vardy’s account had access to the Private Instagram Account are of particular importance. However, all the media files that they sent each other (including any screenshots or other images, videos and voicemail messages) are missing. In the copy of the WhatsApp exchanges disclosed by the claimant, the fact that a media file is missing is apparent (signified by the words “image omitted”). In addition, the only version of their WhatsApp exchanges that is available is a text file export: the original messages are unavailable. Consequently, it is not possible to tell whether any messages (other than the media files) are missing from the version that has been disclosed. The defendant contends that the loss was deliberate. Ms Vardy has denied that she destroyed any evidence relevant to this action.
57.Ms Vardy explained the loss of the media files from her devices in her evidence, saying:
“Complaint has been made about the absence of “media files” from my WhatsApp exchanges with Caroline. These were not deleted by me deliberately as has been alleged. Soon after I instructed Kingsley Napley I was asked to provide a copy of my communications with Coleen and with Caroline by uploading it to a file sharing site on Intralinks. I did this almost immediately after I got back from holiday. I got back from holiday on 12 October 2019 and the WhatsApps were uploaded to Intralinks on the evening of 15 October 2019. My WhatsApp chat with Caroline was huge in size because it went all the way back to 2016 and contained a very large number of messages, as well as media files (that is, images, video and sound files) of considerable size. I connected my mobile phone to the laptop I was using at that time with a cable to make the transfer. The file of data was so big that it would not upload to the Intralinks workspace. The only way I could transfer the WhatsApp chat was to select the option to upload it without the media as this reduced the size of the export. My computer crashed twice when I tried to upload the data.
I successfully uploaded the text to the Intralinks folder which meant that Kingsley Napley has a copy of my entire chat with Caroline on WhatsApp. I then tried again to upload the media contained within the WhatsApp chat. My computer totally crashed and my mobile phone turned off as well. I restarted my computer and turned my phone back on. I logged back into Intralinks but when I attempted to transfer the WhatsApp data again the entire chat (i.e. all the text and the media) between myself and Caroline was missing from my mobile. I did not only lose my chat with Caroline. I later discovered that I had lost other chats and family photos. I tried to restore or back up the data on my phone but was not able to.
I have no idea what went wrong when I did the data transfer. I did not deliberately delete the chat (there is no reason that I would because I had just provided a copy of it to my lawyers). The only copy of the chat that still exists is the copy held by my lawyers for the purposes of this litigation; it is no longer on my phone or any other of my devices. Whilst it contains all of the WhatsApp messages between Caroline and me, it does not include the images or other media files because I could not upload these. This is extremely frustrating for me because I have absolutely nothing to hide in terms of the missing media. On the contrary, I believe that the missing images would support my case.” (Emphasis added.)
58.Notably, the claimant’s evidence is not that all her WhatsApp conversations were wiped, only that with Ms Watt and certain other unidentified chats. That this is so is evident from her subsequent disclosure of some WhatsApp messages during the relevant period.
59.In a note dated 16 January 2022, Mr Henderson stated:
“The Claimant has reported that when attempting to upload exported WhatsApp messages to Intralinks, the size of the exported file was such that the upload failed and that she had to select the “text only” option. This meant that the associated media comprising audio, image and video files were not uploaded. This does not surprise me given the relatively slow internet connection at the Claimant’s home address. Furthermore, when attempting to do this, the claimant has stated that the laptop being used “crashed” twice and when rebooted, the Claimant found that the relevant messages could no longer be accessed.
Whilst this is somewhat surprising, given the focus on security within WhatsApp it is possible that an unusual combination of actions or events resulted in the associated media being no longer accessible.”
60.In his oral evidence, Mr Henderson agreed that for the uploading process to cause the loss or absence of the data was “surprising” and “not what he would have expected to happen”, but he did not consider there was any basis on which he could say that manual deletion was the most likely explanation.
61.Mr Blackband explained that the export of WhatsApp data to Intralinks occurs in two stages. The first stage involves opening WhatsApp, choosing the chat to be exported, pressing “Export Chat” and then choosing from the options “Attach Media” or “Without Media”. This results in a single zip file being downloaded which will contain all the messages, either including or excluding the media files, depending on which option was chosen. This first stage involves interaction with the WhatsApp program. It is that program which packages the messages (including media, if selected) into an archive which is locally stored as a zip file on the laptop (or other device) on which it was created. The WhatsApp program “is easily capable of creating a large archive”. The second stage involves uploading the zip file from the laptop (or other device) on which it is stored, via the internet, to the Intralinks workspace. Uploading the zip file does not involve any interaction with the WhatsApp application.
62.Mr Blackband’s opinion was that what Ms Vardy described was impossible. In his view, the loss was “indicative of a manual deletion” by an individual. That was because what Ms Vardy described was the computer crashing at the second stage of the process. Such a crash could have no impact on the data available on WhatsApp because there was no engagement with WhatsApp during the second stage of the process. If there had been a malfunction at the first stage (albeit he did not consider that was what Ms Vardy had described), no zip file would have been created. For there to be data loss he considered that there would “have to be a corruption of the database which would mean WhatsApp wouldn’t work”. In those circumstances, the WhatsApp account would not work at all because there is a single ChatStorage.sqlite database file which holds the messages. Corruption of the database could not lead to loss of specific chats from within a single file.
63.In considering when, according to Ms Vardy’s evidence, the crash occurred, I place little weight on her use of the word “upload” rather than “download”. I accept that she is unlikely to have been as cognisant of the distinction between the two phases of the operation as Mr Blackband. Nonetheless, Ms Vardy said that the file of data with the media was “so big that it would not upload to the Intralinks workspace”. There would only have been this big “file of data” if she had successfully downloaded a zip file containing the WhatsApp messages, including the media files, to the laptop. What Ms Vardy describes is first creating a zip file with the media, which she was then unable to upload, and then creating a second zip file without the media, which she successfully uploaded to the Intralinks workspace.
64.Mr Blackband’s evidence on this issue was clear and compelling. Although Mr Henderson did not feel able to conclude that the loss was most likely to be due to manual deletion, he too found Ms Vardy’s explanation of how the loss occurred surprising. I accept Mr Blackband’s evidence that there is no interaction with WhatsApp once the zip file has been downloaded, and so it would have been impossible for the process of uploading that file from the laptop to lead to the loss of Ms Vardy’s WhatsApp data. It is still more improbable that a computer malfunction at either stage of the export process would have resulted in the deletion of the WhatsApp chat between Ms Vardy and Ms Watt while Ms Vardy’s WhatsApp exchanges with others were (at least in part) retained.
65.In considering whether the loss of data was deliberate, it is also pertinent that Ms Vardy disposed of the laptop onto which the zip file or files are said to have been downloaded “because it had been damaged beyond repair”. In a statement dated 1 February 2022, the claimant’s solicitor said the laptop “stopped working in between October and December 2019 and no longer functions”. The claimant’s disclosure statement dated 28 February 2022 said the same. The claimant’s solicitors relied on the fact that the laptop no longer functions, in a letter dated 2 March 2022, to contend that it would be “pointless” to include the laptop as a device to be examined by the experts. The defendant was first informed of the disposal of the laptop on 10 March 2022. Ms Vardy said she could not recall when she disposed of it, although she accepted that it was after she had been told to preserve everything. She did not explain why she had disposed of it.
66.Even if the laptop was not conventionally functional, both experts agreed that it could have been examined forensically. It could potentially have provided significant evidence as to what had occurred, and if the original zip file had been downloaded onto the laptop it might have been possible for the experts to access it.
67.It is also highly pertinent that the full WhatsApp chat between Ms Vardy and Ms Watt is only unavailable because of the conjunction of the loss of data on 15 October 2019 and the loss of the same WhatsApp chat by Ms Watt. In her first statement, Ms Watt stated:
“It is the case that I accidentally dropped my phone while I was on a boat trip in August this year. This was a genuine accident which happened during a family holiday to Scotland. I have a weakness in my hand and was on a boat trip with my family. I was standing up in choppy waters holding my phone and I dropped my phone when the boat hit a wave. This was an uninsured phone and its loss was extremely inconvenient and expensive for me.
However, I don’t believe its loss makes any difference to the information I am able to provide the Court. As I understand it, all the information on the phone was retained on iCloud and transferred to my new phone which I have provided for imaging. The only information which would not have been on iCloud is records of WhatsApp messages and calls, but my WhatsApp messages had already been routinely deleted back in 2019 way before the proceedings began.”