Noel Anthony Clarke v Guardian News & Media Ltd

Permission to call a witness whose statement was served during trial depends on the three-stage Denton approach. A serious and significant breach, even with a good explanation, may justify refusing relief where the evidence was unpleaded, would require responsive evidence and cross-examination, and would disrupt the trial timetable. The importance of the evidence must be weighed against efficient and proportionate litigation and compliance with court orders. An anonymity and reporting restriction order may nevertheless be granted where strictly necessary to protect private life, having regard to Article 10 and open justice, particularly when the evidence will not be admitted.

The Defendant applied during the third week of a six-week liability trial for permission to call a new witness, Anita, whose witness statement had been served more than three months after the ordered deadline. The application also sought relief from sanctions, anonymity and reporting restrictions.

Anita’s proposed evidence concerned alleged sexualised and inappropriate conduct by the Claimant and was said to be relevant to the Defendant’s truth defence. The Claimant opposed admission, submitting that it would require further evidence, recall and cross-examination. The issues were whether the sanction should be disapplied under the Denton principles and whether anonymity and reporting restrictions were justified.

1. Permission to adduce evidence refused. CPR 32.10 imposed a sanction because the witness statement had not been served within the time ordered. The application therefore engaged CPR rules 3.8 and 3.9.
2. The breach was serious and significant. The statement was served one-third of the way through trial, after most of the Claimant’s evidence had been heard. There was, however, a good reason for the delay: the proposed witness had previously declined to give evidence and contacted the Defendant only shortly before the application.
3. Applying the Denton principles, the third stage was decisive. The evidence had some importance, was short and concerned matters within the Claimant’s knowledge. Nevertheless, the matters were not pleaded as required by paragraph 4.3(2) of Practice Direction 53B. Admission would require a further witness statement from the Claimant, his recall and further cross-examination, and potentially responsive evidence and documents. That would disrupt the efficient conduct of the trial and tighten its timetable. The evidence was unlikely to be critical because similar allegations were already addressed by extensive evidence.
4. The court’s assessment of the witness’s personal circumstances did not alter the conclusion on admissibility. The lateness and resulting procedural unfairness outweighed the factors favouring admission.
5. Anonymity and reporting restriction granted. The court had jurisdiction under section 11 of the 1981 Act. Anonymity was strictly necessary to protect Anita’s private life, having weighed that interest against Article 10 and open justice. The conclusion was strengthened by the refusal of permission to adduce her evidence.