Noel Anthony Clarke v Guardian News & Media Ltd

In a non-jury trial, the court may resolve objections to witness-statement evidence before trial where that is proportionate and assists the proper conduct of the proceedings. A witness statement should contain relevant evidence of fact which the witness could give orally. It should not contain argument, commentary on documents, submissions, irrelevant material or lay opinion, subject only to the limited exception for opinion evidence that is a legitimate way of giving facts. The court should adopt a cautious and proportionate approach, allowing material to remain where admissibility or relevance may reasonably become clearer at trial, while editing plainly inadmissible or irrelevant evidence to focus the trial and avoid wasted cross-examination.

The claimant brought a defamation claim against the defendant concerning a series of articles. Before the liability trial, the defendant applied for parts of the claimant’s and other witnesses’ statements to be ruled inadmissible and struck out. The claimant conceded a substantial amount of the challenged material during oral submissions. The remaining issues concerned whether particular passages were relevant evidence of fact, admissible lay opinion, hearsay, commentary on documents, argument, speculation, or material relating only to damages. The court also addressed the appropriate costs order.

1. Applicable approach. The court applied the principles identified in Aven & ors v Orbis Business Intelligence Ltd [2020] EWHC 474 (QB). Although objections in a non-jury case will often be left until trial, pre-trial editing may be appropriate where there are good reasons and it is proportionate.
2. A witness statement must contain evidence which the witness would be permitted to give orally. Under CPR 32.4, that means relevant evidence of fact which the witness can give. It does not ordinarily include expert opinion, lay opinion, argument, submissions, commentary on documents or irrelevant material. The limited exception for lay opinion applies where the opinion is a legitimate way of giving evidence of fact: Civil Evidence Act 1972, s 3(2).
3. The court adopted the reasoning in J D Wetherspoon plc v Harris (Practice Note) [2013] EWHC 1088 (Ch); [2013] 1 WLR 3296, that evidence and argument should be kept distinct and that statements should focus on the functions they are intended to perform. The approach was also consistent with Mitchell v News Group Newspapers Ltd [2014] EWHC 3590 QB, where editing was appropriate in the circumstances of a high-profile case.
4. The court took a cautious approach, leaning in favour of retaining material where there was room for argument that it might be admissible and relevant by the end of trial. It nevertheless struck out material that was plainly irrelevant, related only to damages, consisted of commentary on documents, argument, speculation, inadmissible opinion, irrelevant hearsay or prejudicial attacks on witnesses. Material was retained where it could fairly be understood as direct evidence or a denial relevant to a pleaded issue.
5. The defendant’s application was allowed to the extent set out in the judgment. The claimant was ordered to pay the defendant’s costs of the application, the defendant having been very substantially successful.

Not stated in the judgment.