Noel Anthony Clarke v Guardian News & Media Ltd [2025] EWHC 994 (KB)

[2025] EWHC 994 (KB)Claim Number: QB-2022-001397
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of JusticeDate Thursday, 6th March, 2025
Strand
London
WC2A 2LL
Before
MRS. JUSTICE STEYN
Between
NOEL ANTHONY CLARKEClaimantGUARDIAN NEWS & MEDIA LTDDefendant
PHILIP WILLIAMS, ARTHUR LO and DANIEL JEREMY (instructed by The Khan Partnership LLP) appeared for Claimant.GAVIN MILLAR KC, ALEXANDRA MARZEC and BEN GALLOP (instructed by Wiggin LLP) appeared for Defendant.
Approved JudgmentIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Digital Transcription by Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com
[1]This is the Defendant's application for a ruling that certain parts of the witness statements served by the Claimant are inadmissible and should be struck out. Notice of the Application was given by the Defendant in its skeleton argument exchanged prior to the pre-trial review on 20th February 2025. It was adjourned to the start of the trial. It is unfortunate that the Claimant's representatives provided no written response to the application, as it has taken considerably longer to deal with than would have been the case if they had identified in a counter-schedule the passages which were conceded prior to this hearing. Nevertheless, I am grateful to Mr. Williams for narrowing the issues between the parties in respect of this application during his oral submissions.[2]In considering the question of admissibility of evidence I have applied the principles applied in Aven & ors v Orbis Business Intelligence Ltd [2020] EWHC 474 (QB), at [9]-[17]. In particular, Warby J observed that it is uncommon in a non-jury case:
“...for one party to seek orders striking out passages in witness statements served by the other. Often enough, objections are raised but left to be resolved at trial. To do otherwise may be disproportionate, and inconsistent with the overriding objective. A judge is able to identify that which is admissible evidence and that which is not. But it is not unknown, or even exceptional, for objections to be raised and resolved before trial. There can be good reasons for doing so.”
[3]Warby J noted at [11] that he held in Mitchell v News Group Newspapers Limited [2014] EWHC 3590 QB, that “unusually, in the circumstances of that high-profile case, an editing process was appropriate: ‘For the purposes of the trial, the attention of the parties, the judge, reporters and observers should be focused on what is relevant to the issues being tried.’”[4]Warby J continued, at [12]-[17]: “12. Other practical reasons may make it appropriate to take time on the editing of statements. The leading authority is J D Wetherspoon plc v Harris (Practice Note) [2013] EWHC 1088 (Ch) [2013] 1 WLR 3296, a decision of Sir Terence Etherton, C, where a company director made a voluminous statement in answer to an application for summary judgment. The Chancellor held that the vast majority of the 52 page statement should be struck out as an abuse as it was: ‘a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market.’13. The Chancellor rejected submissions that the statement was unobjectionable, on the grounds (among others) that it contained admissible non-expert opinion, amounting in substance to evidence of fact. He evidently accepted the submission for the claimant, that the claimant would be placed in difficulty by such a statement because it would be difficult for counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination. I would respectfully accept and adopt that point. I would add that a proper separation between evidence and argument, fact and opinion, is important for other participants in or observers of the judicial process. The task of the Judge is complicated if these distinct matters are confused or intertwined, in a witness statement. Muddling up these separate elements of the process will also tend to make proceedings harder for observers to follow, and for reporters to explain. For all these reasons, it is important that documents presented to the Court should focus on the functions they are meant to perform, and not stray into other domains.14. As the Chancellor pointed out at [38-39], the underlying principles are to be derived from the Civil Procedure Rules, the law of evidence, and good practice as prescribed by the guides to practice in the High Court.15. CPR 32.4 provides: ‘A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally’. That of course means evidence of fact which is relevant to the issues that arise from the statements of case, and which the witness is able to give. It does not include expert opinion, still less anything in the way of lay opinion, save for evidence that falls into the well-understood but limited exception whereby a lay witness's opinion (such as 'The car was going too fast for the conditions') can sometimes be a legitimate way of giving evidence of fact: see s 3(2) of the Civil Evidence Act 1972.16. The Queen's Bench Guide, at para 10.9.5, requires parties to bear the following in mind: 1. A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers, 2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings, 3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. Application may be made by an opposing party to strike out inadmissible or irrelevant material.17. The Chancery Guide, cited by the Chancellor, in J D Wetherspoon at [39], refers to additional points, of some relevance to the present case: ‘… it is not … the function of a witness statement … to set out quotations from … documents [in the trial bundle], nor to engage in matters of argument …’ These points of principle are not specific to the Chancery Division.” ‘a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market.’ ‘A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally’. 1. A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers, 2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings, 3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. Application may be made by an opposing party to strike out inadmissible or irrelevant material.[5]I note that the King's Bench Guide 2024 contains the same points at paragraph 10.6(1).[6]In applying those principles, I have taken a cautious approach, leaning in favour of the Claimant where I consider there may potentially be any room for argument by the end of trial that evidence to which objection has been taken might be admissible and capable of bearing on a relevant issue. I have also sought to take a proportionate approach to striking out any evidence, bearing in mind that the court will be able to determine in due course what weight, if any, to give to evidence to which objection has been taken if it is not excluded at this stage.[7]On the other hand, this is a case where, as in Mitchell an editing process is appropriate to ensure that the attention of the court, the parties, reporters and observers is focused on what is relevant to the issues being tried and to avoid time having to be wasted on cross-examination of witnesses on material which is clearly inadmissible. Indeed, it is inevitable that an editing process is required given the concessions to which I now turn.

Material to be struck out by concession

[8]The Claimant has agreed to the following passages to which objection was taken by the Defendant being struck out. i) The Claimant's first witness statement: paragraphs 43-85 (for the purposes of this liability trial); the last two sentences of paragraph 90; paragraphs 144 and 146; the second and last sentences of paragraph 148; in paragraph 149, the words “which I doubt would have been the case had I been sexually inappropriate with her in the manner pleaded”; the last sentence of paragraph 149; paragraph 156(b); the last sentence of paragraph 187; paragraph 209; the second and third sentences of paragraph 211; paragraph 224; paragraph 273; paragraph 296(e); in paragraph 292, the words “and often took” to “admitting to take cocaine” and “or a member of Unstoppable” to the end of the paragraph; paragraph 300(c); the second sentence of paragraph 315; paragraph 323; the final sentence of paragraph 327; in paragraph 332, the words from “I recall Charlotte” to the end of the paragraph; paragraph 345-346; and paragraph 361. ii) Andrew Loveday’s statement: the words “and in my experience are not true” in paragraph 9. iii) Arnold Oceng’s statement: paragraphs 9-10. iv) Cedric St. Clair’s statement: in paragraph 7 the words “I believe she was negligent”; paragraph 8; in paragraph 9 the words “Willow at the time” to “on items which” and the final sentence; paragraph 10, from “I understand Willow was trying” to the end; paragraph 16; in paragraph 17, the words “I did not appreciate her ... towards others”; in paragraph 19, “this was highly deprecating ... shocked at this behaviour”; in paragraph 21, “I generally thought Ava ... including a woman”; in paragraph 28, “I am surprised that any allegations ... could have been put forward”; in paragraph 33, “in my professional opinion ... with the events of 2016”. v) David Wade’s statement: in paragraph 20, “in my view ... what she was seeking”; and paragraph 21, the words “Willow's complaints are surprising to me”. vi) Enrico Tessarin’s statement: paragraph 11; the first sentence of paragraph 12; the first two sentences of paragraph 13; paragraph 14; paragraph 18(c); paragraph 22; in paragraph 25, the words from “I felt this was entirely” to “with sexual offences”; and paragraph26. vii) Iris Clarke’s statement: paragraph 24, save for the first line; paragraphs 26-27; in paragraph 31, the words “as I did not trust her” to “Noel to be genuine”; in paragraph 28, the words “However from the few times... opportunistic”; paragraph 31(a) and (b); in paragraph 33, the words “This could have been” and the final sentence; paragraphs 36 and 38-39; in paragraph 40(c) the words “ultimately she was seeking” to “creatively”, and the words “therefore he did not feel” to the end of paragraph; paragraphs 41-44 from “I understand this was because”; in paragraph 49, the last sentence; paragraphs 50-51; the last sentence of paragraph 54; in paragraph 56, the words “I recall his agents” to “suggesting that”; paragraphs 57-60 and 65-68. viii) Jared Schwarz’s statement: the final sentence of paragraph 8; in paragraph 13, the words “was entirely surprised... by the Defendant on her behalf”; the last sentence of paragraph 16; the last sentence of paragraph 22; in paragraph 23, the words from “I do not believe”; paragraph 25; in paragraph 26, the sentence beginning “in my view this was clearly not an abuse of power”; the first sentence and the last two sentences of paragraph27. ix) Joshua Myers’s statement: the last sentence of paragraph 9. x) Junior Quartey’s statement: paragraph 10; paragraph 15(c); and the second sentence of paragraph 18. xi) Nabil Elouahabi’s statement: paragraph 5 and the last sentence of paragraph 8. xii) Stephanie Tripp’s statement: the last sentence of paragraph 17.

Decision

[9]I turn therefore to address the remainder of the Defendant's application applying the principles I have outlined.[10]In the Claimant's first witness statement, I agree with the Defendant that the following paragraphs, in addition to those conceded by the Claimant i.e. 43-85, should be removed for the purposes of this Liability Trial on the ground that they are relevant to damages only, and not to the issue as to whether Articles 2 to 8 caused serious harm to the Claimant's reputation (it being conceded that Article 1 did so): paragraphs 29, 30, 32 and 38-42.[11]In addition, the following material in the Claimant's first witness statement should be struck out: i) Paragraph 90: this is mere commentary on a document disclosed by the Defendant. ii) With respect to paragraphs 100-101: the first sentence of paragraph 100 is commentary, but I am prepared to let the remainder of paragraph 100 remain in as it explains part of what the Claimant is denying in paragraph 101. The second sentence of paragraph 101 is speculation and argument, which is appropriate for submissions, not a statement of fact. The first and last sentences of paragraph 101 can remain in. Although the first sentence does contain commentary, I will allow it to remain in so that it is clear that the Claimant is denying the allegations in respect of Sophia as made in the Amended Defence as well as in the e-mail referred to in paragraph 100. iii) In respect of paragraph 107, from “this appears to be”, this should be removed. This is argument and commentary on documents. iv) Paragraphs 141 to 142 should be removed, save that I will allow the first two sentences of paragraph 141 to remain: the material in these paragraphs does not go to a pleaded issue as there is no allegation of misconduct by the Claimant towards Shanika Warren-Markland. In addition, the fourth sentence of paragraph 141 is argument and speculation. v) The first two sentences of paragraph 148 should be removed. This is argument and commentary on a disclosed document. vi) Paragraph 167: again, that is commentary on a disclosed document which should be removed. vii) Paragraph 186: The word “maliciously” in the final sentence should be struck out. There is no pleaded allegation of malice. However, I will allow the remainder of the paragraph to remain in. While it may be said that the Claimant is giving an inexpert opinion that Ms. Morris was “mentally ill”, some latitude should be given. It is at least arguable that what he is seeking to say is that he accepts that she was suffering from mental health issues at the time or was in some other way vulnerable, but he only realised that at a late stage of their correspondence. That is relevant to the issue. viii) Paragraph 187 should be removed save that I will allow the words “it is clear from our exchanges that I do not put pressure on her” to remain. While that might be said to be commentary, giving some latitude it can be seen as his denial that he in fact put pressure on her. The remainder of the first two sentences is commentary on documents. The last sentence of paragraph 187 is an irrelevant and unpleaded allegation about Ms. Morris's private life now in circumstances where the pleaded case concerning her relates to events in 2010 when she was 18. It plainly has to be removed. ix) Paragraph 208 is commentary on documents. But I will allow paragraph 207 to remain as the Claimant is referring to his own message in the context of giving evidence of fact as to why they did not meet. x) Subparagraphs (a) and (b) of paragraph 233 are commentary on the Defendant's disclosed documents and should be removed. xi) Paragraph 239: this paragraph does not go to any pleaded issue. It is not an incident about which any allegation (of bullying or otherwise) has been made by the Defendant or the witness, Ms. Crabb. It is subsequent to the lateness incident, about which complaint has been made, and so irrelevant to that incident and it is a gratuitous reference to the witness's sex life. xii) Paragraphs 279-280 are argument and commentary on the Defendant's disclosed documents and should be removed. xiii) Paragraph 292 contains allegations concerning the personal life of a witness which do not go to any pleaded issue. That paragraph is therefore irrelevant and should be removed. xiv) In paragraph 316, subparagraphs (a) to (d) should be removed save that in (b) the words “I clearly could not have sent Sienna an explicit photograph on Snapchat if I had, at that point, not yet met her” can remain. I have given some latitude in allowing the second sentence of paragraph 316 to remain, but (a) to (c) clearly contain commentary on documents and (d) is a lay opinion regarding a technological question. xv) Paragraphs 343-348 are argument and commentary on the documents which have no place in a witness statement of fact. xvi) In paragraph 352, the words from “and in any event... in the timeframe sought” should be removed as that is argument. I will allow the remainder of paragraph 352 to remain. The Claimant can comment on his subjective feeling that the time pressure was unbearable. xvii) Paragraphs 353-359 are argument and commentary on the documents which have no place in a statement of fact save that I accept that the second sentence of paragraph 356 can remain.[12]I have already indicated some of the material to which objection is sought, but which I will allow to remain in. For the avoidance of doubt, applying the approach that I have outlined, I will also allow the following to remain: i) paragraph 149 (to the extent not struck out by agreement); ii) paragraph 156 (save for subparagraph (b)); iii) paragraphs 161-163; iv) paragraph 198(d), first sentence; v) paragraphs 222-223; vi) paragraphs 225-226; vii) paragraph 291(c); viii) paragraph 332 (to the extent not struck out by agreement); and ix) paragraphs 349-350.[13]Turning then to the other statements: i) There is no longer any dispute in respect of Mr. Wade's statement. ii) Mr. Tessarin's statement: paragraphs 12-13 contain an irrelevant and prejudicial attack on a witness based on her alleged sexual conduct. They do not go to the only issue in respect of this witness, which is whether the Claimant sent or showed to others explicit photographs of her that he had had obtained consensually. They should be removed. The first sentence of paragraph 20 of Mr. Tessarin's statement is opinion evidence and should also be removed. iii) Ms. Clarke's statement: a) the first sentence of paragraph 24 and also paragraph 25 can remain. It may be that this is an account of what the claimant told her, but it is not identified as such and so on the face of it, bearing in mind paragraph 3, she is giving direct evidence. b) Paragraph 33 can also remain to the extent not struck out by agreement. c) I will allow the words to which objection is taken in paragraph 40 to remain. The witness was present for the call and she is able to recount the contemporaneous account her husband gave her regarding the issue which is potentially relevant. d) The words to which objection is taken in paragraph 48(b) may be an unidentified account of what she was told, but on the face of her statement, bearing in mind paragraph 3, again this is direct evidence so I will allow it to remain. e) Paragraph 54, from “I believe” to the end of the paragraph, is opinion which should be removed. f) Paragraph 56 is irrelevant hearsay evidence regarding an expression of opinion given by the Claimant's agents. Mr. Williams’ proposed edit does not make sense as it effectively changes the meaning of the paragraph which should be removed. iv) In Mr. Schwarz's statement: a) paragraph 8, the final sentence is opinion evidence and should be removed. b) Paragraph 12 is irrelevant and should be removed. It does not go to the allegation that Ms. Powell was excluded from a meeting. First, there is no evidence that the meeting was with Mr. Schwarz so on its face, this is speculation. Secondly, the allegation is not a general one that Ms. Powell was excluded from a meeting. What it is alleged much more narrowly is that having travelled to the particular meeting in the circumstances she has described, including in the elevator, Ms. Powell was effectively told that she did not deserve to attend while outside the door to the meeting. Nothing in paragraph 12 is relevant to that narrow allegation. c) I am prepared to allow the first sentence of paragraph 16 to remain, albeit it is expressed as an opinion. d) In paragraph 21, the third, fourth and fifth sentences are speculation, but I am prepared to allow the first two sentences concerning the investigation to remain in. e) Giving the latitude I have indicated, I am prepared to allow paragraphs 24 and 26 to remain in, but paragraph 27 is plainly objectionable opinion evidence which should be removed. v) The only issue in respect of Mr. Myers' statement concerns the first sentence of paragraph 9. That is objectionable opinion evidence and should be removed. vi) With respect to Mr. Quartey's statement: a) For the same reasons as I have given in respect of Mr. Tessarin's statement, the whole of paragraphs 8-13 should be removed as an irrelevant and prejudicial attack on a witness. b) Paragraph 15, to the extent not struck out by agreement, can remain. c) Paragraph 18 contains opinion, including purported expert opinion evidence, and a prejudicial attack on a witness, Davie Fairbanks, which does not go to any relevant issue. It should be removed. d) Paragraphs 19-21, which all appear under the heading “Conclusion”, consist of opinion evidence and submissions which have no proper place in a statement of fact. vii) Mr. Elouahabi's statement can remain to the extent not struck out by agreement. viii) The last sentence of paragraph 15 of Mr. Dore's statement is opinion on the ultimate issue in respect of the truth defence. It is inadmissible and should be struck out. ix) The final sentence of paragraph 15 of Ms. Warren-Markland's statement is effectively a submission and it should be struck out, but I am prepared to allow the remainder of the paragraph regarding the extent of the witness’s knowledge of the scope of the investigation to remain in. x) The final statement to address is that of Ms. Tripp. Subparagraphs (a)-(c) of paragraph 13 give irrelevant evidence regarding a non-party, David Elliott, and do not go to any pleaded issue.[14]Accordingly, the Defendant's application is allowed to the extent that I have indicated in this judgment and I would be grateful if the parties could draw up the draft order. I appreciate you might need a transcript before doing that. (For continuation of proceedings please see separate transcript)[15]In my judgment, it is plain that the Defendant is very substantially the successful party on this application. To the extent that I have allowed certain passages within the statements to which objection has been taken to remain in, I bear in mind that if this application had been responded to at an earlier stage, it would have been considerably narrower and then there would have been an opportunity for the Defendant to potentially agree some of those matters. As I have said, there was not a response and the concessions have only been made during the course of oral submissions yesterday and today.[16]In my judgment, bearing in mind both the way in which the application has been dealt with and, as I say, the degree to which the Defendant has very largely been successful on the application, I will make an order that the claimant pay the Defendant's costs of this application. - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. 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Cited in 1 later judgment