Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

Gavin Burrows has been an important figure in this litigation from the outset. In the original Particulars of Claim, each Claimant alleged that Mr Burrows had carried out a wide range of unlawful information-gathering activities, including phone hacking, landline interception, blagging of utility and financial records, obtaining medical and travel information, bugging, vehicle tracking, and accessing computer records.

The Claimants further alleged that Mr Burrows carried out such activities for the Mail on Sunday between about 2000 and 2007, and that he sub-contracted unlawful acts to other private investigators and third parties. These allegations form a central plank of the claims advanced by Prince Harry, Sir Elton John, David Furnish, Elizabeth Hurley and Sadie Frost.

Mr Burrows is therefore plainly the Claimants’ witness. At the stage of the Defendant’s application to dismiss the proceedings on the ground of limitation, the Claimants relied upon a witness statement purportedly signed by Mr Burrows dated 16 August 2021. In that statement, Mr Burrows alleged that he had been commissioned to undertake unlawful information gathering by a journalist at the Defendant. Some of that evidence is summarised in the limitation judgment ([2024] 1 WLR 3669).

During the trial – now in its 29th day – the Claimants have relied upon Mr Burrows’ evidence to put very serious allegations of wrongdoing to several of the Defendant’s witnesses, but most importantly to Paul Henderson. When cross-examined, Mr Henderson has denied commissioning Mr Burrows to carry out unlawful information gathering, denied making cash payments to him, and denied instructing him to target any of the Claimants or other public figures. Apart from a possible meeting in Mallorca in the mid-2000s, Mr Henderson denies any material connection with Mr Burrows.

Mr Burrows’ evidence is a major component of the Claimants’ case. Without it, a substantial number of allegations of unlawful information gathering made against the Defendant and its journalists could not be sustained.

Notwithstanding the centrality of Mr Burrows’ evidence, when witness statements were exchanged in October 2025 the Claimants did not serve a trial witness statement from him. Instead, they served a Hearsay Notice dated 17 October 2025, seeking to rely upon the 16 August 2021 statement and other hearsay material. The stated reason was that Mr Burrows had withdrawn his cooperation and was unwilling to attend trial.

The Claimants had been aware for some time that Mr Burrows had withdrawn his support. During the limitation proceedings, the Defendant relied upon a statement from Mr Burrows denying material allegations pleaded about his activities in the Particulars of Claim. If the Claimants had wished to secure Mr Burrows’ oral evidence at trial, it was open to them to serve a witness summons at that stage, or any time subsequently. They chose not to do so. Instead, they took a forensic decision to rely upon his evidence as hearsay.

Shortly before the exchange of witness statements, Mr Burrows provided to the Defendant a witness statement dated 25 September 2025, after obtaining independent legal advice. In that statement, he denied that he had been commissioned by Associated to carry out unlawful information gathering and denied that various statements relied upon by the Claimants were signed by him. He also described contact with members of the Claimants’ research team and referred to threats and harassment, without attributing responsibility for those acts.

The Defendant did not rely upon that statement as trial evidence. It was exhibited to a solicitor’s witness statement for case management purposes. The Defendant did, however, serve a notice requiring the Claimants to prove the authenticity of Mr Burrows’ statements.

On 10 November 2025, the Defendant obtained an order under CPR 33.4 permitting cross-examination of Mr Burrows if the Claimants relied upon his evidence as hearsay. The Claimants were required to serve a witness summons on Mr Burrows by 18 November 2025.

A witness summons was duly issued but served only by email and post at a time when, it is now accepted, Mr Burrows was outside England and Wales. It was therefore ineffective to compel his attendance.

Mr Burrows has English solicitors acting for him, who have engaged with the parties and the Court. On 7 January 2026, they wrote to the Court stating that Mr Burrows had last been in England and Wales on 16 May 2025 and was now living overseas. They maintained that the witness summons had been ineffective but stated that Mr Burrows was willing to assist the Court by giving evidence via video-link. They explained that he was medically unfit to travel and unwilling to disclose his location because of threats and business sensitivities.

Further correspondence, on 12 and 13 January 2026, confirmed that Mr Burrows was willing to give evidence voluntarily by video-link, that he was not subject to compulsion, in the sense that he had not been served with a witness summons, that he was medically unfit to fly, and that independent legal advice confirmed there were no legal or diplomatic impediments to his giving evidence by video-link from his location. The Court was provided with that information confidentially, without disclosure of Mr Burrows’ whereabouts to the parties.

At a case management hearing on 15 January 2026, counsel instructed by Mr Burrows, Mr Poole KC, attended to explain his position. Mr Burrows’ solicitors also referred to a recent approach made to Mr Burrows by Byline Times, which Mr Burrows, rightly or wrongly, interpreted as intimidating.

Following a further hearing on 3 February 2026, Mr Burrows’ solicitor, Christopher Corney, served a witness statement dated 5 February 2026. In it, Mr Corney confirmed that Mr Burrows left the UK in May 2025 before knowing of the trial timetable, that he was medically advised against long-haul travel, and that he had received serious threats which had been reported to the police and remained under investigation. He also explained that Mr Burrows was engaged in confidential commercial work abroad and feared destabilisation if his location were disclosed.

The witness statement referred to independent legal advice from a qualified lawyer in the relevant jurisdiction confirming that there was no legal prohibition on Mr Burrows giving evidence via video-link, no requirement for local permission, and no diplomatic impediment to Mr Burrows giving evidence in that way.

Consideration was given to Mr Burrows travelling to a third country, ideally one that was a signatory to the relevant Hague Convention, to give evidence via video-link, but that option was rejected by Mr Burrows on grounds of his health and safety. Detailed safeguards were proposed in the witness evidence of Mr Corney for the conduct of any video-link evidence.

Mr Corney has confirmed that, if permitted, evidence would be given from a local law firm abroad with safeguards including: supervision by a qualified local lawyer; confirmation of who is present; room scan before the testimony begins; the door to be in sight of the video-link; no virtual background; identified device and a test call; restricted access to the trial documents; and the ability for the Court (if needed) to communicate privately with the supervising lawyer so as not to disclose the location.

On 6 February 2026, Mr Corney sent an email to the Foreign, Commonwealth and Development Office (a step suggested in the relevant Practice Direction – see [22] below) seeking further information as to the likely timeframe if a formal letter of request were sent to the state seeking permission for Mr Burrows to give evidence in these proceedings via video-link. The FCDO responded:

“Regarding [name of state redacted], we reached out to them in both 2022 and 2024 but did not receive a reply on either occasion. Based on the limited evidence we have it seems highly unlikely that the [name of state redacted] authorities would respond to our requests”

The position regarding the country from which it is proposed that Mr Burrows should give evidence is that it is not a party either to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters or to any other bilateral treaty with the United Kingdom that generally gives permission for witnesses to give evidence in proceedings in this jurisdiction from that country. A formal request could be made under the Letter of Request procedure, but there is no realistic prospect of that process being completed before the scheduled end of the trial and, indeed, the indication from the FCDO is that, based on recent experience, it seems very unlikely that any response would be received from the state concerned.

The Court’s power to permit evidence by video-link arises under CPR 32.3 and is supported by PD32 Annex 3. The question is whether permitting remote evidence is for a good reason, serves a legitimate aim, and is consistent with the overriding objective.

The notes in the White Book to CPR 32.3 caution that the use of video-link to enable a witness to give evidence from a foreign jurisdiction can be problematic if the local law in the jurisdiction does not permit a person to give evidence in proceedings via video-link. The Practice Direction to Part 32 Annex 3, paragraph 4, notes:

“It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign, Commonwealth and Development Office (Public Facing Services, Taking of Evidence Team TOE.Enquiries@fcdo.gov.uk with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF ... will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.”

Mr Burrows’ solicitors have confirmed that they are willing to act as the party directed to be responsible for arranging the VCF.

Where a party in civil proceedings wishes to obtain evidence from someone based in a foreign jurisdiction, a letter of request can be issued to the foreign jurisdiction under CPR 34.13(1A)-(2). A letter of request is a request for the assistance of the courts of the foreign jurisdiction in taking evidence for use in proceedings in this jurisdiction. As explained in Hollander on Documentary Evidence (15^th edition) (§29-01), “this involves the English Court being willing to make an order and the foreign court (whether because of mutual obligations or otherwise) being willing to give effect to it”.

Letters of request are usually used in circumstances where the evidence cannot be obtained voluntarily. In Dicey, Morris & Collins on the Conflict of Laws (16^th edition) (§10R-080, Rule 29) the authors suggest that “nothing prevents a party from obtaining evidence from a third party abroad without compulsion of law, provided that this is not contrary to the law of the place where the evidence is to be obtained”.

In Skywind Holdings Ltd -v- Wilson [2025] EWHC 3524 (Comm), the Court granted permission for a key third-party witness to give evidence by video-link from Switzerland. The witness was not compellable, was independent of the parties, and had left the jurisdiction due to a genuine and subjectively held fear for his personal safety arising from alleged threats and intimidation by a defendant. The Court accepted that fear at face value on an interim application, noting that it had been accepted by another judge and was not seriously disputed.

Applying CPR 32.3 and PD32 Annex 3, the Court emphasised that video-link evidence is not as ideal as in-person testimony and that permission should only be granted where there is a good reason and the order serves a legitimate aim. The Court decided that this was not a case where the witness was seeking to dictate terms to the Court or issue an “ultimatum” over attendance (see Deutsche Bank AG -v- Sebastian Holdings [2023] 4 WLR 73). The witness was not attempting to control proceedings but had made clear that, if required to give evidence in England, he would not attend at all.

The critical comparison was therefore not between in-person evidence and remote evidence, but between remote evidence and no cross-examination at all. The Court held that depriving the parties of oral evidence from a central witness would be a more serious interference with the interests of justice than requiring cross-examination to take place by video-link. Experience since the pandemic, and established authority, demonstrated that cross-examination by video-link can be effective, including in fraud cases, and that demeanour is not a reliable indicator of truthfulness.

The Court rejected the submission that special measures, undertakings, or exclusion of a defendant from court would sufficiently address the witness’s concerns, accepting the witness’s unequivocal evidence that such measures would not alleviate his fear. The witness was properly treated by the court as vulnerable within PD1A, and permitting remote evidence was a proportionate protective measure.

Balancing fairness, parity, and the overriding objective, the Court concluded that there was good reason to permit video-link evidence. Doing so served the legitimate aim of ensuring that relevant evidence was testedthrough the adversarial process and ensured that the Court had the fullest possible evidential picture. Any residual disadvantage to the defendants could be addressed by submissions as to weight at trial.

In Joyce -v- Sunland Waterfront (BVI) Ltd [2011] FCAFC 95, the Full Court of the Federal Court of Australia overturned a decision refusing to permit a party-witness to give evidence by video-link from Dubai, and addressed in detail the relationship between remote evidence, state sovereignty, and comity.

At first instance, the trial judge had refused video-link evidence on the basis that the United Arab Emirates had not given permission and that, absent such permission, taking evidence by video-link would constitute an impermissible assertion of Australian judicial power on foreign territory, contrary to principles of sovereignty and comity. The judge treated the absence of clear consent from the UAE authorities as determinative.

The Full Court held that this approach involved a misapplication of sovereignty and comity principles.

The Court drew a critical distinction between:

The latter, the Court held, does not constitute an exercise of judicial power on foreign territory and does not, of itself, infringe the sovereignty of the foreign state.

The Full Court emphasised that comity concerns the relationship between states, not the voluntary conduct of individuals. Therefore, provided that (a) the witness participates voluntarily; and (b) the law of the foreign state does not prohibit the giving of evidence by video-link, there is no breach of sovereignty and no requirement, as a matter of law, that the foreign state consents to the giving of such evidence.

The Court rejected the notion that the possibility of judicial directions being given during cross-examination (for example, requiring a witness to answer a question) transformed the process into an impermissible assertion of jurisdiction abroad. Orders made by a court bind parties who have submitted to its jurisdiction, even if compliance occurs while they are abroad; that does not, without more, engage foreign sovereignty.

Importantly, the Court held that the Australian Parliament had already struck the relevant balance by enacting the relevant law permitting the use of video-link, which was s.47A Federal Court of Australia Act 1976, which expressly authorised evidence to be taken by video-link from persons outside Australia. The statute contained no requirement that a foreign state consent to such evidence, save in relation to whether the foreign law prohibits or makes inconvenient the taking of evidence on oath or affirmation. The court held that to import a general consent requirement based on comity would be to add a limitation not found in the legislation.

While acknowledging that courts often, and prudently, consult executive authorities (such as the equivalent to the Department of Foreign, Commonwealth & Development Office) when foreign states are involved, the Federal Court of Australia made clear that executive caution or diplomatic reluctance does not of itself constrain the court’s statutory power. Comity may inform the exercise of discretion, but it cannot override a power conferred by Parliament absent a demonstrated conflict with foreign law.

The Court concluded that, unless the law of the foreign state forbids the giving of evidence by video-link, concerns of sovereignty and comity do not preclude a Court from permitting such evidence. The refusal of permission on comity grounds therefore involved the consideration of an irrelevant factor and amounted to a miscarriage of discretion.

I accept the general propositions advanced by the Claimants that live evidence in court is ordinarily preferable and that video-link evidence is not as ideal. The Court must be alert to the risk of witnesses seeking to dictate terms.

This is not such a case. Mr Burrows is not compellable as a witness. He has indicated a willingness to give evidence voluntarily but has made clear that he will not attend Court in England. He has refused to disclose his location because of the fears he has articulated. The Claimants dispute the evidence that Mr Burrows has given as to threats he claims to have received. I cannot resolve that issue on this application, much in the same way that Mr Justice Bryan could not in Skywind. I am, however, satisfied that Mr Burrows is not making an impermissible ultimatum; it is a factual constraint which the Court must take into account.

The correct comparison is therefore between permitting cross-examination by video-link and having no oral evidence from Mr Burrows at all. Given the vital importance of his evidence to the fair resolution of the issues in dispute, the latter would be a significantly greater interference with the interests of justice.

Based upon Joyce, I am satisfied that concerns over comity do not prevent my granting permission for Mr Burrows to give evidence via video-link. Mr Burrows is giving evidence voluntarily. On the evidence available to the Court, the law of the foreign state does not prohibit the giving of evidence by video-link, and the law of England & Wales, much in the same way as the law in Australia, does not make it a pre-condition for the grant of permission for the use of video-link from a foreign jurisdiction that the foreign state consent to the giving of such evidence.

I also take into account the concern that the non-disclosure of Mr Burrows’ location limits scrutiny of the circumstances in which Mr Burrows’ evidence is to be given. However, the only material disadvantage to the parties in Mr Burrows’ location being withheld from them is that they are unable to explore (and potentially to challenge by evidence) whether the law of the foreign state prohibits the giving of evidence via video-link. That concern is legitimate but very limited. The information withheld by Mr Burrows is narrow, directed to safety rather than forensic advantage, and is mitigated by the safeguards proposed and the Court’s continuing control. Ultimately, whether the law of the foreign state prohibits Mr Burrows from giving evidence via video-link in these proceedings goes to comity, not admissibility.

I am satisfied that there is good reason to permit Mr Burrows to give evidence by video-link and that doing so serves the legitimate aim of ensuring that relevant evidence is tested adversarially and that the Court has the fullest evidential picture.

At present, the order made by the Court regarding Mr Burrows’ evidence permits him only to be cross-examined on his hearsay statements by the Defendant. Mr Sherborne raised a concern that it would be unfair on the Claimants if they did not have an opportunity to explore Mr Burrows’ evidence. As matters stand, the Claimants have relied on Mr Burrows’ evidence only as hearsay. But that does not foreclose an application by the Claimants to abandon reliance on Mr Burrows’ evidence as hearsay and seek to obtain permission to call him as a witness. That application has not been made. If it is made, it will be ruled upon at the appropriate time.

Balancing all relevant considerations under CPR r.1.1, CPR r.32.3 and PD32 Annex 3, and applying the approach articulated in Skywind and Joyce, I conclude that permitting Mr Burrows to give evidence remotely via video-link, subject to stringent safeguards and judicial oversight, is a proportionate and fair course which best serves the interests of justice in this case.