Noel Anthony Clarke v Guardian News & Media Ltd

In managing late disclosure during a trial, the court should adopt the fairest and most efficient course consistent with the overriding objective. A witness who has served a statement in time does not require permission to give oral evidence. The court may permit limited examination-in-chief to address newly disclosed material and may allow cross-examination on that material to take place later where the opposing party has adequate time to prepare. An application for a supplementary witness statement must identify a procedural power supporting the order sought.

During the trial of a claim by Noel Anthony Clarke against Guardian News & Media Ltd, the defendant disclosed 15 nude photographs shortly before the evidence of its witness, Mr Fairbanks. The photographs related to an allegation that the claimant had obtained and sent a nude image to Mr Fairbanks. The claimant denied the allegation and sought an adjournment, a supplementary witness statement from Mr Fairbanks, and time to consider the material before cross-examination.

The court had to determine whether those procedural measures were necessary to avoid unfairness and how the evidence should be managed.

1. The application for an order requiring Mr Fairbanks to provide a supplementary witness statement and for his evidence to be adjourned was refused. The claimant had identified no power supporting an order requiring the witness to explain when and how he found the photographs. CPR 32.10 did not apply.
2. No permission was required for Mr Fairbanks to give oral evidence because his witness statement had been served within time.
3. The claimant was given 30 minutes to consider the photographs and take instructions before cross-examining Ivy. The documents were not considered likely seriously to affect her cross-examination.
4. Applying the overriding objective, the court permitted the defendant to ask Mr Fairbanks three short questions in examination-in-chief under CPR 32.5(3). The claimant would receive the transcript that evening and could consider it over the weekend before cross-examining him about the photographs and their discovery on the following Monday.
5. This course gave the claimant ample preparation time and was the fairest and most efficient way to progress the trial. The claimant was also permitted to give supplementary evidence concerning the newly disclosed photographs.