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England and Wales High Court (King's Bench Division) Decisions
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Clarke v Guardian News & Media Ltd [2025] EWHC 995 (KB) (17 March 2025)
URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/995.html
Cite as:
[2025] EWHC 995 (KB)
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Neutral Citation Number: [2025] EWHC 995 (KB) |
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Claim Number: QB-2022-001397 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
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Royal Courts of Justice Strand London WC2A 2LL |
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17th March 2025 |
B e f o r e :
MRS. JUSTICE STEYN
____________________
Between:
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NOEL ANTHONY CLARKE
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Claimant
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- and -
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GUARDIAN NEWS & MEDIA LTD
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Defendant
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____________________
Digital Transcription by Marten Walsh Cherer Ltd.,
2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
____________________
PHILIP WILLIAMS, ARTHUR LO and DANIEL JEREMY (instructed by The Khan Partnership LLP) appeared for the Claimant.
GAVIN MILLAR KC, ALEXANDRA MARZEC and BEN GALLOP (instructed by Wiggin LLP) appeared for the Defendant.
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
MRS. JUSTICE STEYN :
- The Defendant made an application on Friday evening (14 March 2025) for permission to call at trial a new witness and to adduce her witness statement of the same date. The Defendant seeks relief from sanctions and anonymity and reporting restrictions in respect of the new witness, with a view to her being identified only by the pseudonym "Anita". The Claimant opposes this application. The Claimant did not seek time to respond to the application in writing, whether in the form of evidence or submissions, but rather was content to respond by way of counsel's oral submissions.
- CPR 32.10 provides:
"If a witness statement or witness summary for use at trial is not served in respect of an intended witness within the time specified by the court then the witness may not be called to give oral evidence unless the court gives permission".
That rule is a sanction for the purposes of CPR rules 3.8 and 3.9.
- The parties were required to exchange witness statements by 5 December 2024: see the order of Master Thornett, dated 27 November 2024. The statement made by Anita has been served late. Anita may not be called to give oral evidence unless the court gives permission and so the question is, whether applying the Denton principles, the sanction should be disapplied and permission granted.
- The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1). The Defendant acknowledges that the default is serious. That is obviously right. The liability trial formally began on 3 March with the first day of the hearing being 5 March. It is now the beginning of the third week of this six-week trial. The Claimant is almost ready to close his evidence. Mr. Clarke and all the witnesses he intends to call save one have now given evidence. One witness for the Claimant, Arnold Oceng, has been summoned to attend tomorrow. As things stand, we will then move on to hear the Defendant's witnesses.
- It follows that the witness statement has not only been filed and served more than three months after the date set in the order of Master Thornett, more importantly it has been filed and served one-third of the way through the trial after the court has heard most of the evidence to be called on behalf of the Claimant in this liability trial.
- The second stage is to consider why the default occurred. I accept that there is a good reason for the failure to file and serve Anita's statement earlier. The Defendant's solicitors, Wiggin, spoke to Anita on 13 October 2022 to discuss the possibility of her giving evidence in these proceedings. She decided that she did not wish to be a witness as, at that time, she considered it would be "too difficult to recount my experience publicly".
- I do not accept Mr. Williams's submission that an inference should be drawn that Anita was only unwilling to give evidence in the absence of an anonymity order. That is not what she says. It was publicly recounting her experience of Mr. Clarke that she says she considered at that time would be too difficult for her. Nor am I prepared to infer that there was any failure on the part of the Defendant's representatives at that time to explore the possibility of her giving evidence on an anonymised basis. Such an inference would be inconsistent with the approach that they have obviously taken in respect of other witnesses.
- In the intervening period, Anita's personal circumstances have changed. She did not engage further with the Defendant's solicitors until last Friday when she contacted them, having seen the press coverage of the case, and asked if she could give evidence subject to anonymity and reporting restrictions. As Anita had not been willing to give evidence prior to last Friday and the Defendant took a statement from her and made the current application on the day she indicated her willingness to do so, the Defendant could not have sought to adduce her evidence or made this application any earlier than it has done.
- In view of my conclusions on the first two stages, the third stage is critical. I have to deal justly with the application, having evaluated all the circumstances of the case, including the seriousness and significance of the breach and the explanation for it, and giving particular weight to the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.
- In my judgment, this is a finely-balanced application. The factors weighing in favour of granting this application are:
i) The evidence is of some importance. Anita gives direct evidence of the Claimant's alleged behaviour towards her, including pressuring her to allow him to take an explicit photograph of her in a public room at Soho House, despite her repeated refusals and, while on set, making unwelcome and inappropriate sexual comments to her, shouting and swearing at her. This evidence, if admitted, would be relevant to the defence of truth on which the Defendant relies.
ii) The Defendant has, as I have said, a good reason for not adducing Anita's evidence earlier and acted speedily as soon as she indicated her willingness to give evidence.
iii) The statement is short and focused on a small number of incidents without reference to any documents.
iv) The alleged incidents will be within the Claimant's direct knowledge.
v) Allowing this evidence to be adduced would be unlikely to have a significant impact on the overall length of the trial or the cost of the litigation.
- Nevertheless, on balance, I consider that dealing with the matter justly in all the circumstances leads to the conclusion that I should refuse the Defendant's application to adduce this evidence at this late stage. First, in accordance with paragraph 4.3(2) of Practice Direction 53B, the Defendant was required to give details in the Amended Defence of the matters relied on in support of its Defence of Truth. The incidents to which Anita refers are not pleaded and so the Claimant has not had to respond to the matters now alleged at any time in the course of these proceedings.
- Secondly, if I were to permit Anita to give evidence, as the Defendant acknowledges, the Claimant would have to be given the opportunity to serve a further witness statement addressing her allegations and would need to be recalled and cross-examined on that further statement. The Claimant has already given evidence over the course of four days, being cross-examined for three of those days. In the context of this high-profile case, that is inevitably a stressful experience which he would reasonably have understood was over last Thursday.
- Thirdly, that process of recalling the Claimant, if allowed, would be disruptive of the efficient conduct of this trial. It would require the Claimant and his team to take time out from concentrating on cross-examining the Defendant's witnesses, to deal with the provision of a further written statement from Mr. Clarke, and his further evidence would then have to be interposed at some point between the Defendant's witnesses.
- Fourthly, although there is no evidence in response to this application, I consider it likely that if the statement had been served earlier, the Claimant would have at least explored with these witnesses whether they would have responsive evidence to give in relation to anything said by Anita, particularly those instances that are said to have taken place on set. I accept that if permission is granted, he would at least explore the possibility of adducing evidence from another new witness and also adducing documentary evidence.
- Mr. Williams submits an adjournment of one and a half days would be needed. I accept that in fairness to the Claimant, a period only a little shorter than that would be required if I were to grant the application. The timetable is tight and an adjournment of even a day, together with the additional time that would be taken by hearing again from the Claimant, potentially from another witness for the Claimant and also from Anita would make the timetable tighter.
- Fifthly, I understand the reasons why Anita previously felt unable to give a statement and appreciate her wish to give evidence on these matters now. However, I note that, unlike in the case of Ivy, whose statement was also adduced late (albeit before evidence began), Anita's evidence is not responsive to allegations about her private life made by the Claimant or any of his witnesses.
- Finally, while I have accepted that the evidence of Anita is of some importance, it appears unlikely to be critical given the extensive evidence from both parties addressing allegations of a similar nature.
- I will however grant the application for anonymity and a reporting restriction in respect of Anita. She has not been identified at any stage in these proceedings and I have jurisdiction to grant a reporting restriction pursuant to section 11 of the 1981 Act. I am satisfied, having regard to the reasons that she gives in her statement for seeking anonymity, that it is strictly necessary to make this order to protect her right to private life, having weighed that right against Article 10 and the interests of open justice. The position is a fortiori, given that I am refusing permission to adduce her evidence.
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