Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited [2025] EWHC 3237 (KB)

[2025] EWHC 3237 (KB)Case No KB-2022-003316Case No KB-2022-003317Case No KB-2022-003318Case No KB-2022-003340Case No KB-2022-003357Case No KB-2022-003404
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 November 2025
Before
THE HONOURABLE MR JUSTICE NICKLIN
Between
(1) Baroness Lawrence of Clarendon OBEClaimants(2) Elizabeth HurleyClaimant(3) Sir Elton John CH CBEClaimant(4) David FurnishClaimant(5) Sir Simon HughesClaimant(6) Prince Harry, The Duke of SussexClaimant(7) Sadie Frost LawClaimantAssociated Newspapers LimitedDefendant
David Sherborne, Paul Clark, Ben Hamer, Luke Browne and Hector Penny(instructed by Thomson Heath & Associates) for First to Fifth Claimants and (instructed by Sheridans Solicitors LLP) for the Sixth and Seventh ClaimantsAntony White KC, Catrin Evans KC, Sarah Palin and Ben Gallop(instructed by Baker McKenzie) for DefendantHearing Hearing date: 26 November 2025
APPROVED RULINGS

Wednesday, 26 November 2025

[1]On 3 November 2025, the Claimants issued an Application Notice which included an application that a proposed witness, identified with the pseudonym “Berlin”, upon whose evidence the Claimants intend to rely at trial, should be anonymised.[2]The anonymity order sought has two parts. First, that Berlin’s name should be withheld from proceedings in open court and, secondly, that reporting restrictions should be imposed to prevent the identification of Berlin (“the Anonymity Application”).[3]The application was considered at the last case management hearing on 10-11 November 2025. I adjourned the anonymity application to this pre-trial review and made a temporary order, which remains in force, to protect the position, pending determination of the anonymity application. The order of 11 November 2025 provided:
“Until the determination by the court of the anonymity application at the pre-trial review or further order in the meantime: (a) the name of the Claimants’ witness, Berlin, shall be not disclosed in these proceedings and there shall be substituted for all purposes in these proceedings, in place of references to the witness by their name and whether orally or in writing, references to the name Berlin and: (b) pursuant to section 11 of the Contempt of Court Act 1981, no person shall publish in connection with these proceedings the name of Berlin or any information likely to lead to the identification, in connection with the proceedings, of the person identified as Berlin”
.

Evidence

[4]The Claimants have served two witness statements from Berlin. The first is in support of the Anonymity Application and the second is the evidence he intends to give for the Claimants at trial.[5]In summary, in his trial witness statement, Berlin provides supporting and corroborative evidence as to the activities of Gavin Burrows, a private investigator. Associated contends that Berlin has no relevant evidence to give, but that is not a matter to be resolved now. The Claimants rely upon Mr Burrows’ evidence and have served, in respect of that, a hearsay notice. Mr Burrows’ evidence is disputed. Associated successfully applied for an order requiring Mr Burrows to attend the trial for cross-examination and the Claimants have now served a witness summons on Mr Burrows requiring him to attend the trial.[6]The Anonymity Application is based on what are alleged to be concerns about Berlin’s personal safety if his identity were revealed. In support of the Anonymity Application, Berlin has provided a witness statement, dated 3 November 2025. Further evidence has been provided in Mark Thomson’s 16th witness statement, dated 28 October 2025 and in Callum Galbraith’s 17th witness statement, dated 24 November 2025.[7]In his evidence, Berlin explains his background and how he came to know Gavin Burrows (also known as Gavin Rhodes). As to the nature of the risk that he says he faces, in his witness statement for the application, Berlin states the following:
“4. My concern is my own and, particularly, my family’s welfare and safety, and the threat posed by individuals involved in this litigation, such as Gavin Rhodes, if it were to be public that I was a witness giving the evidence I wish to give. In this regard, I have read the sixteenth witness statement of Mark Thomson which illustrates the concerns that I have ... 6. [In 2007]…, I dealt with threats from third parties. The risk to my family’s and my safety is therefore not unfamiliar to me and is something I have had to deal with before. I do not wish for me or my family to have to do so again...”
[8]Berlin then explains that he is absent from his home for extended periods of time due to his work, and this exacerbates his concern for his family. He goes on to express his concern that former business partners – who he does not identify – might disapprove of his giving evidence for the Claimants:
“8. … Although I know I would be giving evidence for the right reasons, it would not be perceived that way by others: their world is one where you do not talk to anyone else and everything is dealt with in their own way. I fear my evidence would put both me and my family at risk of threats from such individuals. 9. For the reasons I set out above, I fear that, due to the incriminating nature of my witness evidence, and, having already experienced threats … in 2007, my safety and that of my family will be at risk from Gavin Burrows and other implicated business partners if my witness evidence cannot be given anonymously. Any alternatives to anonymity, such as withholding my address from court documents or my evidence being given over video link, will not protect my family and I (sic) from this risk given my identity will be known.”
[9]He concludes his witness statement in the following terms:
“15. … I fear that, if I am not able to provide evidence in support of the Claimant’s (sic) action against [Associated] anonymously, my family’s welfare and safety will be put at significant risk… Whilst I am prepared to support the Claimants, I cannot do so if it risks my personal safety and that of my family.”
[10]In Mr Thomson’s witness statement, which was in fact served for a different purpose, but does include a section concerning Mr Burrows, Mr Thomson says:
“28. I distinctly recall being informed by Mr Johnson in 2022, and I believe, that Mr Burrows had turned up outside Mr Johnson’s family home in London and threatened him and his family in March 2022, which Mr Johnson has told me, and I believe, that he and his family, including his children, found very distressing.”
[11]A little bit more information about that incident, in March 2022, is provided in the witness statement of Mr Galbraith. In it, Mr Galbraith says that he recalled having discussions about the incident with Dan Waddell. Mr Galbraith exhibits a statement of case from proceedings in the Central London County Court between Gavin Burrows and Graham Johnson. In very broad outline, Mr Burrows and Mr Johnson had clearly fallen out over a contractual dispute and Mr Burrows had sued Mr Johnson. In paragraph 8 of the Defence, filed by Mr Johnson, it was part of Mr Johnson’s case that:
“Further, in repudiatory breach of the Contract, [Mr Burrows] has conducted himself in a manner likely to destroy the relationship of confidence and trust between [Mr Burrows] and [Mr Johnson].”
[12]Mr Johnson gave particulars of that allegation in his Defence as follows: “(a) In the course of two telephone calls on 17 March 2022, [Mr Burrows] was menacing and threatening towards [Mr Johnson]. In particular, he threatened that unless [Mr Johnson] released him from the life rights agreement made on 5 May 2021 ... [Mr Burrows] would destroy [Mr Johnson’s] businesses and professional reputation as a journalist. (b) On 18 March 2022 [Mr Burrows] made threatening phone calls to [Mr Johnson], again demanding [Mr Johnson] release him from the life rights agreement. (c) At about 9.00pm on 18 March 2022, [Mr Burrows] came to [Mr Johnson’s] home address. He was drunk, threatening and abusive. He assaulted [Mr Johnson] in the street, pushing him backwards, shouting and acting in a threatening manner. [Mr Johnson] retreated to his house. [Mr Johnson’s] partner and children were inside the house and were threatened by [Mr Burrows’] conduct. As a result of [Mr Burrows’] conduct, [Mr Johnson] called the police”.[13]The Defence in which those allegations were included was verified by a statement of truth, signed by Mr Johnson, on 10 October 2022. The evidence sheds no further light on this incident. I have not been provided with any response that Mr Burrows provided to those allegations in those proceedings, how those proceedings resolved, and there is no evidence as to any subsequent police action. For the purposes of this judgment, it is important to note that these are allegations made by Mr Johnson against Mr Burrows in those County Court proceedings. As I indicated at the hearing, given the seriousness of the allegations, it is surprising to see that they not advanced in a witness statement from Mr Johnson (a member of the Claimants’ research team), but in a statement of case, from separate proceedings, exhibited to a solicitor’s witness statement.[14]That is the evidence upon which the Anonymity Application is based.

Legal Principles

[15]The legal principles are not in dispute.[16]The fundamental principles of open justice remain clearly and succinctly set out in the Master of the Rolls’ Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003: [10] Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R -v- Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] QB 227, 235; Donald -v- Ntuli [52]-[53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose. [11] The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W [2010] EWHC 2457 (QB) [34]. [12] There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou -v- Coward [2011] EMLR 419 [50]-[54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent. [13] The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott -v- Scott [1913] AC 417, 438-439, 463, 477; Lord Browne of Madingley -v- Associated Newspapers Ltd [2008] QB 103 [2]-[3]; Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 [7]; Gray -v- W [2010] EWHC 2367 (QB) [6]-[8]; and JIH -v- News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645 [21].[17]The general rule is that the names of witnesses who give evidence in proceedings in open court will be made public. There is no general exception for cases where private matters are in issue, or indeed where the witness would prefer that his or her name or details of the proceedings were not revealed: Scott -v- Scott [1913] AC 417, 463 per Lord Atkinson; R -v- Evesham Justices ex parte McDonagh [1988] QB 553, 562A-C; R -v- Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966, 978g. Ordinarily, “the collateral impact that [the Court] process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public”: Khuja -v- Times Newspapers Ltd [2019] AC 161 [34(2)] per Lord Sumption.[18]The anonymity order sought by the Claimants is a derogation from open justice. Any derogation from or restriction upon open justice is exceptional and must be based on necessity. The restriction must be shown by “clear and cogent evidence” to fulfil a legitimate aim, be necessary and proportionate: R (Marandi) -v- Westminster Magistrates Court [2023] 2 Cr App R 15 [16]; R -v- Sarker [2018] 1 WLR 6023 [29]; JIH [21].[19]Articles 2 and 3 of the Convention may be engaged where parties or witnesses are in physical danger. The rights guaranteed by those articles are in this context unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: A -v- BBC [2015] AC 588 [45].[20]Where the evidence demonstrates there is a real and immediate risk of serious harm or death, there is no question of balancing this against any countervailing right, no matter how weighty; RXG -v- Ministry of Justice [2020] QB 703 [35(vii)].[21]In cases where the derogation from open justice is sought on the grounds of an argued interference with another qualified Convention right, the task of the Court was stated by Lord Steyn in InRe S [2005] 1 AC 593 at paragraph 17:
“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…”
(emphasis in original)[22]In the context of derogations from open justice, it is important to note two matters.a. First, the Re S balance has recently been restated by the Supreme Court in Abbasi -v- Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815 [128]-[130] (see PMC -v- Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126 [75] and [89]).b. Second, the scales do not start evenly balanced. The Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification: PMC [91]; Tickle -v- BBC [2025] Fam 105 [49].[23]When deciding whether the applicant has satisfied the burden of demonstrating that the relevant derogation from open justice is necessary, the Court must carefully scrutinise the evidence and ascertain the facts (if necessary, by resolving any relevant factual dispute).a. In Griffiths -v- Tickle [2022] EMLR 11, Dame Victoria Sharp P noted that the assessment of engaged Convention rights, under Re S,requires: “… [an] ‘intense focus’ must be brought to bear on the particular facts of the case. As Sir Mark Potter, P, memorably put it, the Re S approach ‘is not a mechanical exercise to be decided on the basis of rival generalities’: A Local Authority -v- W [2006] 1 FLR 1 [53]”.b. In Marandi, Warby LJ described the process as follows [43(6)]: “… The cases all show that this question is not to be answered on the basis of ‘rival generalities’ but instead by a close examination of the weight to be given to the specific rights that are at stake on the facts of the case. That is why ‘clear and cogent evidence’ is needed. This requirement reflects both the older common law authorities and the more modern cases. In Scott -v- Scott at p.438 Viscount Haldane held that the court had no power to depart from open justice ‘unless it be strictly necessary’; the applicant ‘must make out his case strictly, and bring it up to the standard which the underlying principle requires’. Rai (CA) is authority that the same is true of a case that relies on Article 8. The Practice Guidance is to the same effect and cites many modern authorities in support of that proposition. These include JIH -v- News Group Newspapers Ltd [2011] 1 WLR 1645 where, in an often-cited passage, Lord Neuberger of Abbotsbury said at [22]: ‘Where, as here, the basis for any claimed restriction ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule …’ ‘Where, as here, the basis for any claimed restriction ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule …’[24]To engage Articles 2/3, the evidence in support of a derogation from open justice must establish a “real and immediate risk” of harm; that is a risk that is objectively verified and is present and continuing: Re Officer L [2007] 1 WLR 2135 [20]; R -v- Marine A [2014] 1 WLR 3326 [60].[25]The requirement that the fear must be real requires that it be shown to be objectively well-founded. In assessing whether there exists a real and immediate risk, for the purposes of Article 2, the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. Re Officer L[20].[26]Nevertheless, although a purely subjective fear of harm is not sufficient to engage Articles 2/3, it may very well be relevant to the assessment of the Article 8 rights of the person concerned: RXG [35(viii)]. The Court may be required to estimate the risks arising from publicity. In doing so, the Court can rely upon generic evidence as to the adverse effects of publicity in earlier comparable cases: PMC [77].

Decision

[27]In his submissions today, Mr Sherborne has not argued that the evidence demonstrates a real and immediate risk of physical harm to Berlin, so as to engage Articles 2/3, if he were called as a witness in this case and his name provided in the usual way. Mr Sherborne, though, does contend that the evidence engages Berlin’s Article 8 rights, essentially not to be placed in fear of physical harm if he were to be identified as a witness in these proceedings.[28]Although the Court can take into account those subjective fears, if those fears appear to be exaggerated, irrational or lacking support in the evidence, the Court will take that into account in deciding what weight to attach to the expressed fears when it comes to the Re S balance. In short, such evidence is unlikely to be clear and cogent.[29]The Court must also assess the extent to which the articulated fears are, in reality, simply an extension of the apprehension that any witness may have about the consequences of giving evidence. Many witnesses may be able to advance credible arguments that they may face a detriment as a result of giving evidence, ranging from embarrassment to the risk of adverse consequences for them personally or harm to their own reputations. Generally, such collateral impact, or its apprehension, is part of the price to be paid for open justice; see Lord Sumption’s observations in Khuja (see [17] above) and Lord Woolf’s comments in ex parte Kaim Todner978f.[30]One of the purposes of exposing the Court’s proceedings, including the evidence given by witnesses, to the full glare of publicity, is to protect the integrity of the process and to promote confidence in the administration of justice, including acting as a deterrent to those who might be tempted to give false evidence; see ex parte Kaim Todner977c-g. That is one of the reasons why the law requires that those seeking derogations from open justice are required to demonstrate a sufficiently weighty countervailing justification by clear and cogent evidence.[31]The evidence adduced by the Claimants in support of the Anonymity Application falls a long way short of being clear and cogent and does not demonstrate that anonymity is necessary in this case, or that it would mitigate the risks that Berlin fears.[32]In my judgment, Berlin’s evidence demonstrates only that he fears that there may be adverse consequences for him personally by giving evidence. To that extent, he is no different from many other witnesses who are required to give evidence in various courts and tribunals across the land, every day. The evidence that Berlin gives about his fears of potential reprisal are very general and highly speculative. They are not objectively substantiated. In reality, the evidence of a supposed threat to Berlin is limited to the evidence given, not directly by Mr Johnson, but on his behalf, of an incident relating to Mr Burrows and fears of unspecified threats from unidentified former associates. The risk from Mr Burrows is alleged to arise from the incident from March 2022 when Mr Burrows is alleged to have turned up outside Mr Johnson’s home at 9.00 at night, being drunk, threatening and abusive. However, that was a single incident in the context of an existing dispute that, although no doubt upsetting and unpleasant, does not appear to have been particularly serious. It does not begin to demonstrate that Mr Burrows is a man who has a history of threatening or using violence and that he credibly presents a risk of doing so towards Berlin.[33]The interference with the Article 10 and Article 6 rights, embodied in the open justice principle, were Berlin to be anonymised is significant. There is likely to be a significant public interest in what he says in his evidence, not just because of the profile of this litigation, but because of the central importance of Mr Burrows as a witness. Berlin’s evidence ostensibly supports an account contained in a witness statement from 2021 upon which the Claimants have relied, but seems recently to have been disavowed, by Mr Burrows. The harm to the open justice principle by withholding the name of Berlin if he were to be a witness at trial would be real and significant.[34]I am also not satisfied that the anonymity order is a necessary or even an effective way of protecting Mr Berlin from the risks he perceives. The threat relied upon is that posed by Mr Burrows and, perhaps, from former unidentified associates. It seems to me that, if Berlin gives evidence at trial in accordance with the witness statement he has provided, it will be highly likely, if not inevitable, that it will be immediately apparent to Mr Burrows (and probably the former Associates too) who Berlin is. As such, anonymising Berlin would not protect him from the feared consequences.[35]Fundamentally, however, for the reasons I have given the evidence of the risk of potential reprisal is general and speculative. It is not clear and cogent, and it simply does not begin to discharge the burden of showing that there is a sufficient countervailing justification to depart from the principles of open justice that would require, in the ordinary way, that Berlin give his evidence with his identity being known in these public proceedings.[36]For those reasons, the application for anonymity for Berlin is refused. LATER[37]I am not going to grant permission to appeal. Mr Sherborne says I have not attached sufficient weight to the Article 8 factors that were relied upon. He has not identified any alleged error in the legal principles that I have identified and applied. Merely disagreeing with an evaluative assessment and contending that I have not attached sufficient weight to a factor in that process is not a ground of appeal that has a realistic prospect of success. There is no other compelling reason why I should grant permission to appeal, so the application is refused. The Claimant can, if they wish, renew an application for permission to appeal with the Court of Appeal.[38]I accept Mr Sherborne’s submission that there needs to be a stay of execution to the extent that the temporary reporting restriction I have imposed should be continued until any renewed application for permission to appeal has been resolved. That stay is needed to prevent an appeal being rendered nugatory in the meantime. The practical effect is that the withholding order, and more importantly the reporting restriction order prohibiting the identification of Berlin, that I have imposed will remain in force until such time as the Court of Appeal has dealt with any renewed application for permission to appeal.[39]I will invite the parties to agree the usual form of wording of an order dealing with this; essentially providing for the different eventualities. Either, that permission to appeal is granted, in which case the Court of Appeal takes control of the stay and, in those circumstances, unless the Court of Appeal discharges the stay, which will be very unlikely, the stay will stay in place until the appeal has been disposed of. If the Court of Appeal refuses the renewed application for permission to appeal, then the order will provide for the discharging of the temporary anonymity order LATER[40]The Claimants have made an application to amend, further, the Particulars of Claim. Associated has consented to some amendments, but two amendments are opposed, and I must decide whether to grant permission to amend in respect of them.[41]The first contentious amendment is in the context of the pleading as to the work undertaken by TDI, ELI and BDI, alleged to have been done on Associated’s behalf and to have involved unlawful acts.

(d) in the following terms:

“Nicole Lampert, as showbiz editor, authorised and Tony Benicci, of the showbiz department, commissioned ELI on or around 18 November 2003, in the form of two payments, to obtain private information relating to [a named individual “PPT”]. In the premises, the Claimant will infer that Mr Benicci commissioned ELI to obtain [PPT’s] travel plans. In support of this contention the Claimants will rely upon the following matters: (a) that the searches relate to both of [PPT’s] real name and his professional name. (b) [PPT’s] travel plans were of interest to Associated at the time.”
[42]Mr Sherborne showed me the underlying documents upon which the proposed amendments are based. There are two invoices from ELI, both bear the name of PPT: a. The first is dated 18 November 2003. The description of the invoice item is:
“Ref: Tony Benicci, showbiz, for extensive urgent detailed enquiries made on your behalf.”
The sum paid, including VAT, was £329. The invoice appears to bear a signature. Mr Sherborne submits that is Nicole Lampert’s signature on the invoice. Mr White KC has not disputed this. b. The second invoice, also dated 18 November 2003, is also for a sum of £364.25, with a description:
“Ref: Tony Benicci, showbiz, for extensive urgent detailed enquiries made on your behalf.”
Again, it appears to bear Nicole Lampert’s signature.[43]The disclosure of those invoices was somewhat belated. They were provided by Associated on 24 September. What happens next in the chronology is that PPT signed a witness statement for the Claimants dated 13 October 2025. In the statement, PPT comments upon the ELI invoices that I have just referred to. Associated pointed out, having received the witness statement, that it did not contain any relevant evidence, as it did not concern any matters pleaded in the Particulars of Claim.[44]Mr Sherborne submits that there is a case supporting the amendment which shows that it has a real prospect of success and that applying the principles that govern applications to amend, the court should grant permission to amend.[45]Mr White KC, on behalf of Associated, submits that, firstly, the amendments are late; no adequate explanation has been provided in the evidence supporting the application for why the application was not made earlier than it has been; in particular, why it was not made reasonably promptly after it was pointed out that PPT’s witness statement did not contain any relevant information. Mr White submits, and it appears to be a reasonable conclusion, that the application to amend has been prompted by a recognition that the witness evidence of PPT did not actually go to any pleaded issue.[46]More substantively, Mr White submits that the amendment is speculative. It is, he says, weak. The documents do not demonstrate UIG. To prove such a case, the Claimants must rely upon inference upon inference. Further, PPT is not a Claimant in the proceedings or an associate of any of the Claimants. As such, the potential relevance of the evidence can only be to the alleged propensity of Ms Lampert to obtain information from those who, it is alleged, she must have known were practising UIG.[47]It is true to say that a propensity case on a similar footing has been permitted to be advanced as part of the generic case upon which the Claimants rely. But as I have explained in earlier judgments, the propensity case must be kept within the bounds of what is evidentially probative and proportionality. There is a difference between propensity evidence which is either not disputed or incapable of being disputed (e.g. previous convictions, or admissions of previous behaviour which is capable of supporting a propensity case) and will therefore not require substantial investigation and resolution of disputed matters at a trial; and, at the other end of the spectrum, propensity evidence which, before the Court can even make any assessment of whether it demonstrates propensity, requires the resolution of disputed facts. That latter exercise is a different proposition. I have explained in the July judgment that the Court must make a careful assessment of the proportionality of investigating satellite issues that the resolution of which can only be relevant to a case on propensity.[48]The amendments are undoubtedly late. The principles of late amendments are not disputed. If a strong case is presented, which has reasonable prospects of success and can be seen by the court to lend significant or substantial support to the case being advanced by a party, then that is a heavy factor weighing in favour of granting the amendment.[49]The amendment relating to Ms Lampert and PPT goes only to propensity. The underlying documentation does not raise a strong prima facie case of unlawful information gathering. I agree with Mr White KC that it depends upon drawing inference upon inference. At best, the documentation relied upon provides a basis upon which an enquiry could be launched as to the circumstances in which the commissioned searches took place and what they garnered. As a starting point, however, if permission to amend is granted, it will require investigation by Associated of a wholly new and separate incident. We are now some six working weeks away from the beginning of the trial. The amendment could have been sought back in October when the Claimants were finalising the witness statement of PPT. It is not realistic to expect Associated to conduct investigations into this incident at this late stage and, as I have said, the evidence underpinning it does not provide a strong prima facie case of unlawful information gathering. It raises more questions than it provides answers as to what happened and, as I have said, even if it were proved to be an incident of UIG, it only goes to the issue of propensity in relation to the journalist Nicole Lampert. Weighing all those factors, permission to amend to add subparagraph (d) is refused.[50]The second contested amendment concerns Jonathan Stafford, another private investigator whose alleged activities are relied upon by the Claimants. The Claimants alleged that Jonathan Stafford engaged in UIG and that Associated commissioned him to do so.

(c) :

“Mr Stafford was commissioned by Alison Boshoff of the Daily Mail in August 2005 to blag information relating to [PPT’s] discussions with LWT to present a new TV show named Clueless which had not yet been commissioned. It is to be inferred that the product of Mr Stafford’s unlawful work was included in exclusive article published in the Daily Mail on 31 August 2002 with Ms Boshoff’s byline... In support of this contention, the Claimants will rely upon: (1) the invoice from Mr Stafford to Ms Boshoff covering the period up to the date of publication of the article; and (2), the content of the article.”
[51]The same points about disclosure and delay apply to this amendment. The invoice itself is equivocal. It is dated 30 September 2002 from Mr Stafford to Ms Boshoff at the Daily Mail, and it says:
“To professional services provided during the month ending 31 August 2002”
. The total amount, including VAT, was £848.93.[52]The invoice does not identify what services were provided. Mr Sherborne says that in some of Mr Stafford’s similar invoices, there is a separate document which identifies the work that was carried out, but no such accompanying document is provided with this invoice. In his witness statement for trial, PPT has commented on the incident and the invoice. It is true that an article, with Ms Boshoff’s byline, was published on 31 August 2002, but there is nothing beyond the coincidence of date to link it to the invoice.[53]Mr Sherborne suggests that there is a very strong inference that this article was produced, at least in part, utilising the services of Mr Stafford which it is said involved unlawful information gathering.[54]I am afraid that is not a process of drawing inferences; it is simply guesswork. This is a particularly weak example of potential material in support of a propensity case. I refuse this amendment on the grounds that it does not have a real prospect of success. Separately, if allowed, it would require a significant investigation, at this late stage, into the circumstances in which this article came to be published and where Ms Boshoff got the information published in the article. This amendment is also refused.[55]For those reasons, I refuse both amendments that have been opposed by Associated. LATER[56]The next matter I need to deal with is an application by the Claimants for further disclosure.[57]The Claimants seek an order that Associated should search for, disclose and produce for inspection all payment records relating to Lee Harpin, Nicole Lampert, Richard Simpson and Clemmie Moody between 2003 and 2005, including payment records to Mr Harpin which relate to articles bylined by Ms Lampert, Mr Simpson and Ms Moodie, within seven days.[58]The three journalists who are identified (not including Mr Harpin) are pleaded journalists in the claim.[59]Mr Sherborne has made clear that, although the wording of that draft might appear to independently seek records relating to the four individuals, what in fact is sought is payment records relating to Lee Harpin, relating to commissions by Nicole Lampert, Richard Simpson and Clemmie Moodie.[60]The history needs a little bit of explanation.[61]Mr Harpin has developed, in terms of his role and importance in this litigation. When the matter came before the Court, in relation to amendments that were sought back in October, I granted only limited permission to amend in relation to Mr Harpin. The Claimants had sought to introduce Mr Harpin as a freelance journalist, who it was alleged provided Associated with unlawfully obtained information, including information obtained by voicemail interception.[62]At the stage of that judgment, on 10 October 2025, Mr Harpin had a distinct role in relation to a particular article, albeit the Claimants had sought to expansively plead that he was generally involved in unlawful information gathering.[63]In the judgment, I refused to permit the general allegation of UIG against Lee Harpin. That was consistent with the principle adopted generally towards the amendments and the proper scope of the litigation. I permitted only amendments that were specific and which related to pleaded TPIs/pleaded journalists. However, I did permit an amendment to add a specific allegation of a pleaded journalist’s alleged use of Mr Harpin to obtain information.

(k) (ii) in the following terms:

“It can be inferred that Ms Nicholl commissioned Lee Harpin to intercept the voicemails of Luciana Berger and/or obtain itemised mobile phone billing. In support of this inference, the Claimant relies on the following facts and matters.”
[64]I explained why I had permitted this allegation, and the particulars in support of it as follows:
“Exceptionally this amendment will be allowed. It is a specific example, the probative value of which relates to the alleged propensity of Katie Nicholl to use information which it is said she must have known was a product of UIG. In this instance Mr Harpin is akin to a TPI, rather than being a journalist or at another newspaper.”
[65]The next important development was that Associated disclosed a document, shortly before the hearing on 10 November 2025, which provided a list of payments to Mr Harpin. That was the subject of a separate application for disclosure on 10 November 2025. What I said was, in that judgment, was [14]:
“Mr Harpin is described currently in the pleadings as a freelance journalist. However, on the evidence it appears increasingly that he was treated by Associated journalists, and particularly Ms Nicholl, as somebody who was able to obtain information.”
[66]This wider role of Mr Harpin was corroborated by the document that was disclosed shortly before the hearing on 10 November, showing a series of payments made to Mr Harpin.[67]What has triggered the most recent application is a further disclosed document that shows that Mr Harpin was also a paid supplier to the Daily Mail.[68]Mr White KC objects to the application now before the court, on the grounds that, in the judgment of 10 November 2025, I had refused what he says is a similar application on behalf of the Claimants, because it was outside the parameters of the exercise that I had permitted in relation to disclosure (set out in [25]). In summary, I refused the application on that occasion, and I should do likewise for this. All that he says has changed is that Mr Sherborne has narrowed down the targets.[69]In my judgment, proper account must be taken of the shifting nature of Mr Harpin’s apparent role. The disclosure exercise that has been carried out by Associated has broadly approached the matter on the basis that, in relation to TPIs, records showing payments to TPIs in relation to any pleaded journalist have been disclosed. On that basis, if Mr Harpin had been treated as a TPI in the disclosure exercise, the disclosure that is now sought by the Claimants (insofar as it exists) would have been provided. What has happened is that Mr Harpin’s role has become clearer and, indeed, the extent of his involvement has become clearer. The current application by the Claimants is a targeted one that would have fallen within the parameters of the disclosure exercise, had Mr Harpin been treated as a TPI.[70]For the reasons I accepted in the 10 November judgment, if Mr Harpin’s true role is that he was regarded by Associated journalists as somebody who was able to obtain information, he is practically discharging the role of a TPI. Seen in that way, there is no contradiction in the approach taken by the Claimants.[71]It is very late in the proceedings and as I have already observed today, we are now some six weeks away from the trial. I recognise that further disclosure is potentially just the first stage of what might turn out to be a further amendment application; but we will cross the bridge when we come to it. The Claimants will have noted the fate of some of the amendments that they sought today, and particularly the need to show real probative value in what is sought to be added to a case late in the day. However, I am persuaded that the Claimants ought to be given an opportunity to consider disclosure that relates to payments to Lee Harpin concerning Nicole Lampert, Richard Simpson and Clemmie Moodie in the date range that have been specified. So, I make the order sought.[72]I reiterate, because it is a matter of significant importance, that this evidence is only, unless something very surprising comes out, likely to be relevant to propensity. Applications to add evidence that goes only to propensity will be subject to the same strictures that I have imposed earlier today. Such examples must usually be compelling and involve limited disruption to the preparations for the trial. But in my judgment, it is right to give the Claimants the opportunity to see what that disclosure may potentially open to them, by way of possible further amendments that they might seek to make to their claims.

Cited in 3 later judgments