“MISSING” WHATSAPP POSTS AND A PHONE LOST AT SEA: WHAT INFERENCES WOULD THE COURT DRAW?

The facts in Vardy v Rooney [2022] 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 CASE

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:

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:

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:

68.This evidence has not been tested in cross-examination. I accept that a person who is not engaged in litigation may well choose to delete their WhatsApp messages routinely (as Mr McLoughlin described doing), for example to maintain storage capacity on their device. But the evidence indicates that Ms Watt had not deleted her WhatsApp messages in 2019. On 25 November 2020, Ms Watt sent Ms Vardy two screenshots of WhatsApp messages between them from 16 August 2019 (including the images of Ms Rooney’s posts). There is no reason that Ms Watt would have taken a screenshot of these messages prior to the start of the litigation. Nor is there any reason why Ms Watt would have retained these messages while routinely deleting all others. Ms Watt sent these messages when she did because she evidently considered they would assist Ms Vardy’s case. It is likely that the WhatsApp chat between herself and Ms Vardy (as well as exchanges with journalists) was available on Ms Watt’s phone when she was advised very shortly after the Reveal Post that such evidence must be preserved.

69.The incident in which Ms Watt’s phone is said to have been lost at sea occurred in August 2021. On 4 August 2021, the CCMC had taken place at which an order requiring her device to be inspected had been made. 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.

70.The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable: cf. The Atlantik Confidence [2016] EWHC 2412 (Admlty), Teare J, [296]-[297]. In my judgment, 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.

71.If a ‘wrongdoer’ has ‘parted with relevant evidence’, the court may draw adverse inferences: Armorie v Delamirie (1721) 93 ER 664; Gulati v MGN Ltd [2017] QB 149, [107]; Blackledge v Person(s) Unknown [2021] EWHC 1994 (QB), [41] and Dudley v Phillips [2022] EWHC 930 (QB), [25]. I address below, in the context of my review of the evidence, the inferences I consider it proper to draw in the absence of this potentially significant evidence.

72.Following the service of Ms Vardy’s second statement, the defendant sought confirmation that the messages between Ms Vardy and Ms Watt following the publication of the Reveal Post had been searched for disclosable material. In response to a Part 18 request the claimant disclosed that there are no available messages between Ms Vardy and Ms Watt from 15 October 2019 to 24 July 2020. The first available message from their WhatsApp conversation was dated 25 July 2020 and the last (up to the date looked for) was dated 9 April 2022. In that period there were about 1,000 messages, showing that they exchanged on average about 50 messages a month.

73.The defendant contends this was a targeted deletion to conceal plans between Ms Vardy and Ms Watt to cover up wrongdoing. No explanation for this significant gap in the WhatsApp chat between them was given until Ms Vardy said in cross-examination, “I can’t confirm or deny but I think I may have changed phones around that time”. The impression I gained was that Ms Vardy gave this explanation as equivocally as she did, recognising that it might be possible for it to be disproved.

74.The experts agreed that in order to access her Instagram account with a new phone, Ms Vardy would have had to have logged in. The data shows that there was a new login on a Mac computer on 5 June 2020 and on an iPhone XR on 29 August 2020. There was no new login on or around 25 July 2020 which indicates, as Ms Vardy continued to publish posts and stories on her Instagram account during July and August 2020, that the explanation for the deletion is not that she acquired a new phone. In my judgment, it is probable that Ms Vardy deleted these messages. It is impossible to speculate what the messages and media files exchanged during this period may have shown, but the deletion of this material reinforces my conclusion that the loss by both Ms Vardy and Ms Watt of their original WhatsApp conversation during the key period was not accidental.