MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Mr Justice Nicklin
Between:
(1) Baroness Lawrence of Clarendon OBE (2) Elizabeth Hurley (3) Sir Elton John CH CBE (4) David Furnish (5) Sir Simon Hughes (6) Prince Harry, The Duke of Sussex (7) Sadie Frost Law | Claimants |
- and - | |
Associated Newspapers Limited | Defendant |
David Sherbone, Ben Hamer, Luke Browne and Hector Penny (instructed by Sheridans Solicitors LLP and Thomson Heath Jenkins & Associates) for the Claimants
Antony White KC, Andrew Caldecott KC, Catrin Evans KC, Sarah Palin, Hannah Glover and Ben Gallop (instructed by Baker & McKenzie LLP) for the Defendant
Hearing date: 11 March 2026
APPROVED JUDGMENT
MR JUSTICE NICKLIN
A: Introduction: the Applications to be resolved
The Claimants’ Application for permission to rely on further hearsay statements
By an application filed on 19 February 2026, the Claimants seek permission to adduce and rely upon 10 further documents said to record statements made by Mr Gavin Burrows in 2021 and 2022 as hearsay evidence at trial (“the Burrows Further Hearsay Application”). None of those documents had been included in the Claimants’ Civil Evidence Act 1995 (“CEA 1995”) notice served pursuant to the Court’s earlier case management orders.
The Burrows Further Hearsay Application has been made during the current trial, eight days after the conclusion of the Claimants’ evidence. It appears to have been prompted by an objection taken by the Defendant, during the cross-examination of Stephen Wright on 17 February 2026, to questions being put to him by reference to statements made by Mr Burrows in respect of which no hearsay notice had been served by the Claimants.
By the Burrows Further Hearsay Application, the Claimants seek relief from sanction for the failure to have served the required Civil Evidence Act Notices by the required deadline in October 2025 and to enable them to rely upon hearsay evidence from Mr Burrows contained in the following documents:
Affidavit of Gavin Burrows, dated 5 March 2021;
A further Witness Statement of Gavin Burrows, dated 14 February 2022;
Private investigator, Gavin Burrows: Transcript from BBC interview, dated 19 April 2023; and
Seven separate audio recordings, described as an interview with Mr Burrows in the summer of 2022.
Associated’s skeleton argument for the hearing on 26 February 2026 responded to the Burrows Further Hearsay Application, but it was not pursued by the Claimants at that hearing, and it was not determined on that occasion.
The Claimants’ Application for directions as to the evidence of Mr Burrows
On 6 March 2026, the Claimants issued a further application for directions relating to the oral evidence of Mr Gavin Burrows, whose hearsay statements are relied upon by the Claimants in support of serious allegations advanced at trial (“the Burrows Evidence Application”). It is supported by the 29th Witness Statement of Mr Galbraith. My earlier judgment, on 26 February 2026, explains the background to Mr Burrows’ evidence ([2026] EWHC 451 (KB)).
As noted in that judgment, the Claimants originally elected not to call Mr Burrows as a witness in their own case and instead served a hearsay notice pursuant to the CEA 1995. The Defendant then obtained permission under CPR 33.4 to cross‑examine Mr Burrows on those hearsay statements. The Claimants now seek permission to participate in his examination by one of three alternative procedural routes.
In the Application Notice for the Burrows Evidence Application, the Claimants sought the following orders:
“The Claimants are granted permission either (a) for Gavin Burrows to be treated as the Court’s witness and both parties may cross-examine him; (b) conduct examination-in-chief of Gavin Burrows when he is called to be cross-examined at trial by the Defendant as to the hearsay evidence relied upon by the Claimants; or (c) re-examine Gavin Burrows following cross-examination, with liberty to apply to treat him as a hostile witness pursuant to the Court’s power to control evidence set out in CPR 32.1(b) and/or (c) and/or CPR 3.1”
The central question in the Burrows Evidence Application is not whether Mr Burrows’ evidence is important – it plainly is – but whether, and if so how, the Claimants may now examine him consistently with principle, procedural fairness, and the statutory and procedural framework governing hearsay and witness evidence.
B: Applicable legal framework and summary of principles
The Burrows Further Hearsay Application
Although a failure to comply with the notice requirements does not automatically render hearsay evidence inadmissible (s.2(4) CEA 1995), the Court retains a discretion to exclude hearsay evidence for non-compliance with the statutory and procedural regime. In exercising that discretion, the Court is entitled to have regard to the timing of the application, the reasons for the default, the conduct of the parties (including any tactical decisions they have taken), and the prejudice to the opposing party: see Gladwin -v- Bogescu [2017] 4 Costs LO 437 [25]–[27] and Cottrell -v- General Cologne Re UK Limited [2004] EWHC 2402 (Comm).
Whether analysed as an application for relief from sanctions, or as an application for a substantial extension of time under CPR 3.1(2)(a), the relevant considerations are substantially the same. The Court must have regard to the seriousness of the default, the reasons for it, and all the circumstances of the case, including the need for fairness and the efficient conduct of the trial.
The Burrows Evidence Application
The determination of the Burrows Evidence Application is governed by several established legal principles.
Adversarial nature of civil proceedings. Civil litigation in this jurisdiction is conducted on an adversarial basis. Save in exceptional or statutorily defined circumstances, the Court determines the issues on the evidence adduced by the parties and does not itself originate or call evidence: Re Enoch and Zaretzky, Bock & Co’s Arbitration [1910] 1 KB 327, 337per Farwell LJ; Jones -v- National Coal Board [1957] 2 QB 55, 64per Denning LJ; Lissack -v- Manhattan Loft Corporation Ltd [2013] EWHC 128 (Ch) [32] per Mann J). Lissack confirms that the CPR did not abolish the adversarial model and that case-management powers do not extend to the Court calling witnesses. Ocado Group plc -v- Ocado Central Services Limited -v- McKeeve [2021] EWHC 3542 (Ch) is an example of the unusual circumstances where the Court is dealing with contempt proceedings, and the specific power to direct the attendance of witnesses under CPR 81.7. It provides no general authority for the Court to call witnesses in ordinary adversarial civil proceedings.
Forensic choice and its consequences. Where a party makes a deliberate forensic decision not to call a witness, and instead to rely on hearsay evidence, that party must ordinarily accept the procedural and evidential consequences of that choice: Cottrell -v- General Cologne Reinsurance (UK) Ltd [2004] EWHC 2402 (Comm) [25]-[28] per Morrison J.
Statutory scheme for hearsay evidence. The CEA 1995 permits hearsay evidence, but balances admissibility by conferring on the other party a right to cross‑examine the maker of the statement (s.3 CEA 1995; CPR 33.4). Where a party relies on hearsay evidence, a statutory fiction operates to treat the evidence “as if the hearsay statement were the evidence-in-chief”. Where there is cross-examination of the maker of the hearsay statement, the party adducing the hearsay is not entitled to ask questions in chief unless s/he changes course and, with the Court’s permission, calls the maker of the hearsay statement as witness: Electromagnetic Geoservices ASA -v- Petroleum Geo-Services ASA [2016] 1 WLR 2353 [41]-[43] per Birss J; Phipson on Evidence (21st edition, Sweet & Maxwell, 2026)§29-07.
Calling the witness and relief from sanctions. To call Mr Burrows as a witness, the Claimants would require relief from sanction arising from the failure to serve a witness statement by the required date: CPR 32.10.
Hostile witnesses. This is not a matter that immediately arises, although I can readily appreciate that it is an issue that has been considered by both sides as it lurks not far over the horizon. Ultimately, whether the issue does arise depends on what course the Claimants adopt and what then happens in relation to Mr Burrows’ evidence. As a matter of general principle, however, a party may not impeach his/her own witness unless the Court is satisfied that the witness is hostile in the strict sense, namely not desirous of telling the truth at the instance of the calling party: Greenough -v- Eccles (1859) 5 CB (NS) 786; R -v- Prefas and Pryce (1988) 86 Cr App R 111, 114per Lord Lane CJ; R -v- Jobe [2004] EWCA Crim 3155 [66]. Although these principles are largely drawn from authorities in the criminal jurisdiction, the same principles are consistently applied in civil proceedings by application of s.6 CEA 1995. That section also generally prohibits prior statements of a witness from being adduced as substantive evidence by the party calling that witness. I say no more about the issue of Mr Burrows potentially being declared a hostile witness. I will deal with that issue if and when it arises.
Nature of re‑examination. Re‑examination is confined to matters arising out of cross‑examination and may not be used to introduce new evidence. Leading questions are not permissible in re-examination: Phipson §12-15.
C: Decision
The Burrows Further Hearsay Application
The Claimants submit that permission should be granted to rely on the additional documents because they wish to put them to the Defendant’s witnesses and, ultimately, to invite the Court to treat them as evidence of the truth of their contents. They contend that the significance of the documents only became apparent during cross-examination. In respect of the audio recordings, Mr Sherborne has submitted that these were only located in early February 2026 so these could not have been included in the original Hearsay Notice.
The Defendant opposes the application. It submits that the application is extremely late, that the failure to include these documents in the original CEA notice was deliberate, and that no good reason has been advanced for the default. Mr White KC contends that no proper explanation has been provided for the failure to include most of these documents in the original Hearsay Notice. As to the audio recordings, he argues that no attempt has been made, even at this late stage in the trial, to identify the particular statements of Mr Burrows upon which the Claimants wish to rely as hearsay. The Defendant further submits that it has suffered, and would continue to suffer, serious prejudice were permission to be granted, having prepared and conducted its case on the basis that the extent of the hearsay evidence of Mr Burrows upon which the Claimants wanted to rely had been indicated in the Civil Evidence Act Notices served in October 2025.
The Defendant emphasises that it has been deprived of the procedural safeguards afforded by the CEA 1995, including the opportunity to seek particulars, and consider whether to adduce responsive evidence. It submits that the application is a paradigm example of an attempt to reverse a forensic decision at the end of the Claimants’ case and should be refused.
The application is made at a very late stage of the trial, after the conclusion of the Claimants’ evidence. The attempt to adduce further hearsay statements from a witness, particularly one as important as Mr Burrows, represents a serious departure from the Court’s orders and from the procedural framework governing hearsay evidence.
I reject the Claimants’ suggestion that the need to rely on these documents only became apparent during cross-examination in February 2026. Apart from the audio recordings, if the Claimants intended to rely on these documents as evidence of the truth of their contents, that intention ought to have been apparent at the time when CEA notices were required to be served. The omission of these documents from the original notice was, on the evidence before me, a deliberate choice. The Claimants had most of this material and from it they selected which of it was to be relied upon as hearsay evidence from Mr Burrows.
The reason advanced for the late application is unpersuasive. It appears to have been provoked because of a belated realisation that, without the necessary CEA Notices, the ambit of permissible cross-examination was limited. The limited evidential value of the documents cannot justify the procedural disruption which their late admission would cause. There appears to be much in the audio recordings that is either irrelevant to the issues to be determined or merely repeats what Mr Burrows has said in other hearsay statements upon which the Claimants already rely. The lack of any attempt to identify particular statements in the audio recordings and their significance to the issues to be resolved risks causing confusion and uncertainty as to what in the recordings is said to be evidentially important. Mr Sherborne has failed to persuade me that there is anything of any real significance in the audio recordings.
Most importantly, the grant of permission at this stage would cause substantial prejudice to the Defendant. The Defendant has prepared and conducted its case on the basis that these documents were not relied upon as hearsay. It has been deprived of the opportunity to investigate the documents, seek particulars, or consider adducing responsive evidence in accordance with the statutory scheme. It is no answer that the documents have previously been disclosed. Service of Civil Evidence Act Notices is a required step if hearsay evidence is to be relied upon. I accept that the prejudice to the Defendant is not as acute as in Cottrell where admission of the hearsay, during the trial, would have effectively deprived the opposing party of the right to seek an order for cross-examination of the maker of the hearsay statement under CPR 33.4. Here, the Defendant has already applied for and obtained an order permitting them to cross-examine Mr Burrows, but that is limited to cross-examination on the hearsay that was the subject of the notice served by the Claimants in October 2025.
To permit belated admission of this further hearsay evidence would undermine the disciplined operation of the hearsay regime and compromise the fairness of the trial. One immediate potential consequence of admitting, as hearsay, Mr Burrows’ statement of 14 February 2022 is that the line of cross-examination of Mr Wright, that was curtailed for lack of admissible evidence to support it, might now need to be renewed and require Mr Wright to be recalled as a witness. Mr Sherborne disclaimed that this would be necessary, but I am not convinced that the solution is as simple as he submitted. Certainly, until the objection, Mr Sherborne considered that it was important to put Mr Burrows’ allegations to him in cross-examination. There is simply no real prospect of fitting further cross-examination of Mr Wright into the remaining time available to complete the trial.
In my judgment, the Claimants must live with the consequences of their earlier decision as to the selection of the hearsay evidence of Mr Burrows on which they wanted to rely. No good reason has been provided for why the Affidavit of 5 March 2021, the witness statement of 14 February 2022 and the transcript of the BBC interview were excluded from the Hearsay Notice. In respect of the recently located audio recordings, the lack of focus on particular statements said to be relevant means that the Claimants have failed to demonstrate that there is anything of real evidential value in them.
For those reasons, the Further Burrows Hearsay Application is refused.
The Burrows Evidence Application
Option 1: Witness of the court
The Claimants’ primary submission is that Mr Burrows should be called as a witness of the Court. I reject that. Applying the principles I have identified, there is no general power in ordinary civil proceedings for the Court to call a witness absent the parties’ consent. This would undermine the adversarial process. In my judgment there is no compelling reason to depart the fundamental principles that it is for the parties – not the Court – to call or adduce evidence.
Although the issues presented by Mr Burrows are unusual, they are hardly exceptional. Witnesses performing a volte face are a familiar feature in criminal proceedings. Nor have these problems come as a surprise to the Claimants. They have known for some time of Mr Burrows’ position. From an evidential perspective, the position is prosaically simple. There is no real dispute as to whose witness Mr Burrows is. One only needs to ask the question which side needs his evidence in order to advance its pleaded case. The answer is plain. As I noted in the judgment on 26 February 2026 [5]:
“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”.
Without hesitation, therefore, I reject Option 1.
Option 2: Examination‑in‑chief by the Claimants
Having not persuaded me that the Court should call Mr Burrows, Mr Sherborne has confirmed that the Claimants’ next preferred choice is Option 2. This is important. This is the Claimants’ application. It is not for the Court to tell the Claimants how to present their case.
Pursuing Option 2, the Claimants seek permission to call Mr Burrows as a witness and to conduct an examination-in-chief, notwithstanding that they made a deliberate decision earlier in the proceedings not to call him (and if necessary compel his attendance at trial by effective service of a witness summons) and instead to rely on selected hearsay statements pursuant to the CEA 1995.
It is common ground that no witness statement or witness summary from Mr Burrows was served in accordance with CPR Part 32 whether by the deadline in October 2025, or at all. In those circumstances, CPR 32.10 is engaged and the Claimants may not rely on Mr Burrows’ oral evidence unless relief from sanctions is granted under CPR 3.9: Chartwell Estate Agents Ltd -v- Fergies Properties SA [2014] 3 Costs LR 588.
The Claimants submit, in substance, that relief should be granted because:
Mr Burrows’ evidence is of central importance to the issues at trial;
the need to call him only crystallised once it became clear that the Defendant would cross-examine him extensively on hearsay;
refusing relief would prevent the Court from hearing relevant evidence; and
any prejudice to the Defendant can be addressed by appropriate case-management controls.
The Claimants further contend that the election to rely on hearsay was not a “tactical ambush” but a pragmatic response to Mr Burrows’ withdrawal of cooperation, and that it would be unjust to hold them irrevocably to that choice in circumstances where his oral evidence is now available.
The Defendant submits that the application fails at every stage of the relief from sanctions analysis. In summary:
The breach is serious and significant. The Claimants elected not to call Mr Burrows, served a carefully delimited hearsay notice, and conducted their case on that basis through opening submissions and the entirety of their evidence.
There is no good reason for the default. The Claimants knew well before trial that Mr Burrows’ evidence would be adverse. The decision not to call him was a conscious forensic judgment, not a product of mistake or supervening difficulty.
Granting relief would cause real prejudice to the Defendant, which has cross-examined the Claimants’ witnesses and structured its trial preparation on the footing that Mr Burrows was not a Claimant witness and would not be examined in chief.
Mr White KC emphasises that the Claimants’ application is, in reality, an attempt to reverse a tactical decision once the disadvantages of that decision have become apparent. The authorities make clear that relief from sanctions is not designed to permit such course-correction at a late stage of trial.
I accept the Defendant’s submission that the Claimants’ default was serious and significant. The failure to serve a witness statement or summary was not an isolated procedural lapse but the direct consequence of a strategic election to advance the Claimants’ case by hearsay rather than by calling Mr Burrows as a witness. Pursuit of Option 2 is an attempt to mitigate the potential consequences of Mr Burrows being cross-examined by the Defendant on his hearsay statement in circumstances where there is, objectively judged, a real risk that he will disown the hearsay statements upon which the Claimants have sought to rely.
I also accept that there is no good reason for the default in the ordinary sense contemplated by CPR 3.9. The Claimants’ decision was taken with their eyes open. They were aware that Mr Burrows had withdrawn any earlier cooperation and that calling him as their witness might well now undermine their case and carry significant forensic risks. The subsequent realisation that those downsides were offset by corresponding disadvantages of not calling him does not amount to a good reason.
The Claimants’ reliance on the importance of the evidence does not materially assist them at this stage of the analysis. The centrality of a witness may explain why a party regrets a forensic decision; it does not, of itself, justify relief from the consequences of that decision.
I further accept that granting relief would cause prejudice to the Defendant. The Defendant has cross-examined the Claimants’ witnesses, including Mr Johnson and Ms Sangani, on the basis that Mr Burrows was not a Claimant witness and that only the limited hearsay material identified in the CEA notice was relied upon as evidence of the truth. That forensic landscape cannot now be recreated.
Taken together, these factors would ordinarily lead to the refusal of relief from sanctions. This is a paradigm case of a party seeking to resile from a deliberate tactical decision once the trial has materially advanced.
Notwithstanding the force of the Defendant’s submissions, I am satisfied that grant of relief from sanction on a strictly confined basis is justified in the particular circumstances of this case.
The decisive consideration is the nature of the issues at stake and the role which Mr Burrows’ evidence plays in them. The allegations to which his evidence relates are serious, and the Court’s task of determining them fairly is assisted by hearing from him directly, subject to rigorous constraints designed to prevent unfairness. In particular, the grant of relief will not entitle the Claimants to undo the forensic consequences of their earlier election. It does not permit a free-standing examination-in-chief, the introduction of new material, or the introduction of hearsay statements not previously relied upon. The Claimants remain bound by the procedural position they have created, save to the limited extent expressly permitted.
The relief granted is therefore exceptional, not because the Claimants have shown a good reason for their default, but because the Court is satisfied that justice is best served by permitting a narrow and controlled departure from the ordinary consequence of CPR 32.10, while preserving the Defendant’s legitimate forensic protections. The following conditions will be imposed as terms of granting relief from sanction and granting the Claimants permission to call Mr Burrows and examine him in chief.
The Claimants will be permitted to call Mr Burrows only for the purpose of giving oral evidence confined to (a) the subject-matter of the hearsay statements identified in their existing Civil Evidence Act notice; and (b) relevant issues in the litigation. They are not permitted to rely upon, introduce, or seek to adduce any further statements, documents, or alleged accounts said to emanate from Mr Burrows or to pursue/explore issues that are not relevant to the issues that remain live in the litigation. Mr White KC has suggested that Mr Sherborne has not put to several witnesses various of the pleaded allegations which rest on Mr Burrows’ evidence. If that is right – and I cannot determine that point now – then it may be that the Claimants are no longer pursuing those allegations. That point – and the legitimate parameters of Mr Burrows’ evidence – can be resolved (if not agreed) before Mr Burrows gives his evidence. So that all parties are clear as to the parameters, I am minded that the ambit of relevant evidence should be set out in an order before Mr Burrows gives his evidence.
Save and to the extent agreed with the Defendant, Mr Burrows’ examination in chief must be conducted with non-leading questions and the Claimants will be bound by Mr Burrows’ answers in the ordinary way. The Claimants may not impeach his evidence, deploy prior inconsistent statements, or treat him as hostile unless, and until, the Court is satisfied – on an application made during examination-in-chief – that he is hostile in the strict legal sense.
Permission does not extend to any reconsideration of the Claimants’ failed Burrows Further Hearsay Application. The refusal of that application stands, and the Claimants may not seek to achieve indirectly through oral evidence what they have been refused directly by way of late hearsay reliance. The parameters of the permissible scope of Mr Burrows’ examination in chief are set in (1) above.
The Defendant will be entitled to cross-examine Mr Burrows in the usual way. Expressly, as the Claimants have abandoned reliance upon Mr Burrows’ hearsay statements, the restriction limiting cross-examination to “the contents of the statement” imposed by CPR 33.4(1) no longer applies.
Any re-examination of Mr Burrows will be subject to the usual restrictions and time limited in the way I have directed.
Mr Burrows’ evidence will be strictly timetabled. The examination in chief of Mr Burrows will be limited to a maximum of 2 hours. Cross-examination is limited to 2½ hours. Up to 30 minutes will be allowed for re-examination. As indicated during argument, I will be willing to consider an application to vary those limits, if a proper basis can be demonstrated for changing the time limits I have imposed.
I am satisfied that the Claimants are in no doubt of the potential consequences of abandoning reliance on Mr Burrows’ hearsay in favour of calling him as a witness. If the Claimants call Mr Burrows as a witness, it is common ground that they cannot rely upon his hearsay evidence that was the subject of the CEA Notice. In support of their case at trial, the Claimants can rely only on the admissible evidence that Mr Burrows gives in evidence in chief, cross-examination and any re-examination. As noted already, very serious allegations have been pursued against the Defendant and several of its witnesses. Once Mr Burrows has given evidence, if the Claimants no longer have admissible evidence to support those allegations they – and their legal representatives – would have to consider whether they can continue to be maintained.
Option 3: Re‑examination treating Mr Burrows as hostile
Having opted to proceed with Option 2, the Claimants’ third option does not fall to be resolved. I would have refused Option 3 in any event. Under this option, the Claimants were seeking (a) to rely upon Mr Burrows’ hearsay as identified in the Civil Evidence Act Notice; and (b) following the Defendant’s cross-examination under CPR 33.4, to re‑examine Mr Burrows with liberty to treat him as hostile (effectively seeking to cross-examine him). I am satisfied that this option would have been impermissible. It would have circumvented the statutory hearsay scheme and the established limits of re‑examination. It would, in effect, have been an effort to achieve a cross-examination of Mr Burrows by the Claimants following the cross-examination by the Defendant.
D: Conclusion
Option 1 is refused. Option 2 is permitted subject to the conditions set out above. Option 3 does not arise for determination, but would have been refused.