Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

In civil proceedings, similar-fact or propensity evidence must first be logically probative of an issue. Evidence that one employee engaged in unlawful conduct does not ordinarily prove that another employee did so. The inquiry must focus on the particular journalist, third-party investigator or incident connected with the pleaded claim. Even admissible evidence remains subject to case-management exclusion where investigation would be disproportionate, distracting or unfair. General allegations, unexplained payments and unrelated wrongdoing cannot establish unlawful information gathering. Late amendments may be refused where they expand the issues, prejudice trial preparation or risk turning the case into a public inquiry.

Seven claimants brought claims against Associated Newspapers Limited alleging unlawful information gathering. At a third substantial case-management hearing, the claimants sought permission to amend their Particulars of Claim. The defendant applied to strike out various pleaded allegations, including a generic case concerning unlawful conduct by journalists and third-party investigators, and allegations concerning an unrelated burglary.

The applications concerned propensity evidence, relevance, probative value, proportionality, delay, alleged document destruction, concealment allegations and the proper scope of the litigation.

1. Propensity evidence. The court applied the two-stage approach identified in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. Evidence must first be logically probative. If it passes that threshold, the court considers fairness, prejudice, distraction, cost and complexity.
2. Evidence that Journalist A had a propensity to use unlawful information gathering could not, without unusual circumstances, prove that Journalist B had done so. The generic case therefore failed at the relevance stage.
3. Specific incidents involving a pleaded journalist, including incidents occurring at another newspaper, could be relied upon if relevant and logically probative. Evidence concerning pleaded third-party investigators had to focus on specific examples capable of showing unlawful information gathering for Associated. Cogency, rather than number, was central.
4. General allegations that unlawful information gathering was widespread, payments to investigators, cash payments and references to special activities did not themselves prove unlawful information gathering. Unrelated wrongdoing and an inquiry into its general scale would be disproportionate.
5. The proposed amendments concerning destroyed payment records and emails were refused. General destruction could not safely support claimant-specific inferences. A concealment case under section 32(1)(b) of the Limitation Act 1980 required deliberate conduct intended to conceal relevant facts, identification of the individuals involved and the necessary state of mind.
6. The Ward Allegations were struck out because they had no connection with any claimant or pleaded journalist. Their investigation would also have been disproportionate, too late and a substantial distraction. Consequential passages in the Replies were struck out for the same reasons.