The curious incident of the phone lost at sea: judicial comments on improbable events.
The facts in the recent case of Vardy v Rooney are well known and the fate of the missing phone and the lost WhatsApp chats have been widely reported. During that case, the High Court had to consider (among other issues) the likelihood of the series of improbable events said to have occurred in relation to the alleged loss of evidence. This is not the first time that the English courts have had to grapple with the interesting question of how an unlikely chain of events should be evaluated, which was key to the outcome of the earlier Atlantik Confidence case. This important decision on improbable events was referred to in the Vardy v Rooney judgment and together the two cases illustrate the approach that the courts will typically take where unusual fact patterns have been pleaded.
This case also involved an asset ending up underwater, this time the bulk carrier Atlantik Confidence, which sank off the coast of Oman in 2013. The High Court was required to consider a series of apparently improbable events in order to determine whether or not the vessel had been deliberately sunk by its owners.
The owners claimed that a fire had started by accident in the engine room, later reaching a storeroom and ultimately causing flooding of the engine room and short-circuiting wiring. This was said to have caused bottom tanks to flood.
The Court concluded that it was certainly “possible” that each of the events leading up to the fire in the storeroom could have occurred. However, in light of the expert and other evidence “each of those possibilities” was “at least unlikely” and “aggregation of such unlikelihoods” suggested that it was “no more than a remote possibility” that the fire in the storeroom had been caused in the way proposed. It was also no more than a remote possibility that the fire had caused the flooding of the engine room. The short-circuiting was possible, but expert evidence suggested it was “most unlikely”.
It was ultimately established that in the lead up to the vessel sinking the following things had happened:
- The vessel changed course so that it sailed into much deeper water.
- The master had tried to hide the change of route.
- There was an unscheduled ‘abandon ship’ drill the day after the route was changed.
- The chief engineer tried to prevent other crew members entering the engine room to investigate the fire, even though they were wearing fire suits and breathing gear.
- There was a delay in sending a distress message.
- Once the vessel had been abandoned, the owners’ deck superintendent approached the vessel with a “bag of tools including spanners, a wrench and a hammer….”. He stated in court that this was because “the integrity of the ship” might have been “compromised structurally”. It was suggested this might have made it necessary to “apply extra force in terms of trying to open certain places on the ship”.
The Court emphasised that improbable events can and do occur. However, it was hard to accept that the three improbable events alleged here (an accidental fire, an accidental flooding of the engine room and accidental flooding of the tanks) could have taken place in quick succession. The number of improbable events involved was highly relevant, as one improbability would not be enough to justify the court determining that the event did not occur. The alleged occurrence of two improbable events made the likelihood of the fact pattern “still more remote” and the Court noted that “when there are three it is more remote still.”
The Court found that the owners’ explanation was unsustainable and certain members of the crew must have set the fire and caused the sinking of the vessel.
Vardy v Rooney
As has been extensively reported, in this case there were significant gaps in the evidence presented to the Court by Ms Vardy in relation to her defamation claim against Ms Rooney. This loss of evidence was explained by the occurrence of a series of surprising events, which the High Court was required to review, referring to the earlier Atlantik Confidence case in the process.
Missing Whatsapp media
In the process of harvesting data for disclosure, Ms Vardy provided extensive WhatsApp chat history with her agent (Ms Watt), but without the media files. Ms Vardy explained that she had technical difficulties uploading the chat history with the media files and, in the process, the media files were deleted from her mobile phone and could not be recovered. Ms Rooney’s expert considered that the loss of the media files was “indicative of a manual deletion”.
Phone in the North Sea
The full Whatsapp chat between Ms Vardy and Ms Watt was unavailable from Ms Vardy’s side, but could of course theoretically have been provided by Ms Watt. In the event, Ms Watt explained that she had lost her mobile phone on a boat trip in the North Sea. The judge noted that the timing was “striking”, given that it occurred in the same month that an order had been made requiring Ms Watt’s device to be inspected.
The Court had to evaluate the likelihood that the unavailability of evidence was truly accidental and noted that, as in Atlantik Confidence, the fact pattern involved a series of improbable events. The likelihood of the phone accidentally entering the North Sea was itself “slim”. In fact, “the reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable.” The Court then went on to highlight that the improbability of the losses having happened as suggested was “heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable.”
The Court determined that Ms Vardy and Ms Watt had deleted or destroyed relevant evidence and accordingly drew adverse inferences as to the likely contents of the deleted messages. Ms Vardy did not succeed in her defamation claim against Ms Rooney.
These cases serve as a salutary reminder that the English courts will not easily accept the occurrence of an outlandish series of theoretically possible events. Both decisions provide useful guidance on how the courts will deal with situations where parties to litigation put forward explanations based on an inherently improbable set of facts. In circumstances where more than one improbable event has occurred it will usually be more difficult to persuade a court that this is a likely fact pattern. The more highly unusual events in the chain, the less likely the courts are to accept the explanation offered