Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

In ordinary adversarial civil proceedings, the court has no general power to call a witness without the parties’ consent. A party which deliberately elects to rely on hearsay rather than call a witness must ordinarily accept the resulting procedural consequences. Late hearsay evidence may be excluded where the default is serious, the explanation is inadequate, and admission would prejudice the opposing party or disrupt the trial. Relief from sanctions may nevertheless be granted on a strictly confined basis where the seriousness of the issues makes direct evidence necessary to achieve justice. Such relief must preserve the opposing party’s forensic protections and does not permit new evidence or circumvention of the hearsay regime.

Seven claimants brought claims against Associated Newspapers Limited concerning alleged unlawful information gathering. During the trial, they made two applications concerning evidence from Gavin Burrows. The first sought permission to rely on further hearsay documents not included in the Civil Evidence Act notices served in October 2025. The second sought permission for Mr Burrows to be called as a witness of the court, examined in chief by the claimants, or re-examined after the defendant’s cross-examination. The central issues were whether the late hearsay material should be admitted and whether the claimants could change their forensic position after choosing to rely on selected hearsay evidence.

1. The Further Burrows Hearsay Application was refused. The omission of most of the documents from the original notices was a deliberate choice. The application was made at a very late stage, the explanation was unpersuasive, the audio recordings had not been focused on particular relevant statements, and admission would cause substantial prejudice to the defendant by disrupting the preparation and conduct of its case.
2. There is no general power in ordinary adversarial civil proceedings for the court to call a witness absent the parties’ consent. The claimants could not use the court-witness procedure merely because Mr Burrows’ evidence was important.
3. The claimants’ deliberate decision not to call Mr Burrows, and instead to rely on selected hearsay statements, engaged CPR 32.10. The default was serious and significant, there was no good reason in the ordinary sense, and granting unrestricted relief would prejudice the defendant. The importance of the evidence did not, by itself, justify relief.
4. Despite those conclusions, relief from sanctions was granted on a strictly confined basis. The seriousness of the allegations and Mr Burrows’ central evidential role meant that justice was assisted by hearing his direct evidence, provided the defendant’s legitimate forensic protections were preserved.
5. The claimants could call Mr Burrows only on matters within the existing hearsay notice and relevant live issues. Examination in chief was limited to non-leading questions, and the claimants were bound by his answers. They could not introduce further statements or documents, impeach him, or treat him as hostile without a later ruling that he was hostile in the strict legal sense.
6. Once called, Mr Burrows’ hearsay statements could not be relied upon as substantive evidence except in accordance with section 6 of the Civil Evidence Act 1995. The defendant could cross-examine him without the restriction in CPR 33.4(1), because the claimants had abandoned reliance on the notified hearsay. Re-examination remained confined to matters arising from cross-examination and was time-limited.
7. The proposed third option—retaining reliance on the hearsay and then effectively cross-examining Mr Burrows in re-examination—would have been impermissible, although it did not require determination after the claimants chose the second option.

The applications were made during the trial following earlier case-management orders. No appeal is described.