Noel Anthony Clarke v Guardian News & Media Ltd [2025] EWHC 996 (KB)

[2025] EWHC 996 (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 Friday, 21st 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]The Defendant has disclosed overnight 15 photographs that one of the Defendant's witnesses, Mr. Davie Fairbanks, provided to them yesterday.[2]The allegation to which these photographs are relevant is pleaded at paragraph 37 of the Amended Defence in the following terms:
“The Claimant took or obtained a full-frontal nude photograph of Ivy in the hotel room. Shortly afterwards the Claimant showed and then sent a copy of this photograph to Mr Fairbanks. The Claimant told Mr Fairbanks to save a copy of the photograph, delete the email to which it was attached, and send his copy of the photograph back to the Claimant in order to give the impression that Mr Fairbanks was the source of the image in his possession.”
[3]Neither “the email” nor “the photograph” referred to in that paragraph have previously been disclosed, and that remains the position in respect of “the email”. The Claimant has denied the allegation.[4]The Defendant’s application for a confidentiality ring and related restrictions in respect of the photographs stated that:
“On 20 March 2025 Wiggin LLP requested Mr Fairbanks to check a factual point related to the case. Mr Fairbanks has informed Wiggin LLP that, in searching for such information, he has located a hard drive used by him to back up old laptops. He had searched this hard drive and found 15 photographs of the witness pseudonymised as ‘Ivy’ which he says had been sent to him by the Claimant. The Defendant asked Mr Fairbanks to provide copies of these so that they could be considered for disclosure. He did so at 16:58 on 20 March 2025. In these photographs Ivy is entirely nude.”
[5]Ivy and Mr Fairbanks are both here, and due to give their evidence today. Mr Williams submits that this is an ambush, by the witness, Mr Fairbanks, even if not by the Defendant. In the circumstances, the Claimant seeks to adjourn the evidence of Mr Fairbanks to later in the trial, and he seeks an order requiring Mr Fairbanks to give a witness statement addressing the circumstances in which he found and provided the photographs to the Defendant’s solicitors yesterday.[6]Mr. Williams accepts that he can proceed to cross-examine Ivy today, although he seeks some time to consider his cross-examination and to take instructions before she begins her evidence. It does not seem to me that the documents that have been disclosed should seriously affect the cross-examination of Ivy. There is no suggestion that she was party to any communications by which the photographs came into the possession of Mr Fairbanks, or played any part in the timing of their disclosure. I will give Mr. Williams the half an hour that he seeks in order to consider the newly disclosed documents, and take instructions, before he cross-examines Ivy. That ought to be more than enough time to consider any changes or any effect upon her evidence.[7]I am not persuaded that I should order Mr Fairbanks to give a further witness statement explaining the circumstances in which he found the photographs and the date(s) on which he did so. The Claimant has identified no power by which I could do so. Mr Williams referred to CPR 32.10 but that has no application here. No permission to call Mr Fairbanks to give oral evidence is required: his witness statement was served within time. If I were simply to adjourn his evidence to another day, the Claimant would not necessarily have any further information in the form of a supplementary statement from Mr Fairbanks.[8]It seems to me that there is no unfairness to the Claimant in Mr. Fairbanks being called this afternoon, on the understanding that Mr Williams will not be required to close his cross-examination of him today. The Claimant has already indicated that cross-examination of Mr. Fairbanks is likely to take about half a day, possibly a little longer, so it is very likely that there are many other matters that Mr. Williams should be in a position to cross-examine him on today without needing to address the particular point to which these new documents go this afternoon.[9]Mr Millar proposes to ask Mr Fairbanks three questions in examination-in-chief to deal shortly with the issue of when and how he found the photographs. In my judgment, it accords with the overriding objective to grant permission for such questions to be asked pursuant to CPR 32.5(3). The Claimant would not only hear those answers today, but would have the transcript of the examination-in-chief addressing the finding of these photographs (which the Defendant has agreed to provide this evening). The Claimant and his representatives would have an opportunity to consider that over the weekend before cross-examining Mr Fairbanks regarding the photographs or the circumstances in which he found them on Monday.[10]It seems to me that there is no unfairness in adopting that approach. The Claimant will hear Mr Fairbanks’ evidence as to how, when and where he found the photographs earlier than if he were to be given an opportunity to make a supplementary statement, and will not have to cross-examine him on that evidence until Monday afternoon. Although the evidence on this issue is of importance, it is quite a short point, and proceeding in this way gives the Claimant and his representatives ample time to consider it.[11]In my judgment, proceeding as I have outlined is the most fair and efficient way to progress the trial. If Mr. Williams' cross-examination of Mr. Fairbanks on matters other than the photographs were to go shorter than currently anticipated, in fairness to him I would allow him to stop earlier than usual today, with a view to continuing his cross-examination on Monday.[12]For the reasons I have given, I refuse the application for an order requiring Mr Fairbanks to make a supplementary witness statement and to adjourn the trial until Monday with a view to hearing from Mr Fairbanks later in the trial.[13]I should add that Mr Williams has indicated that the Claimant would wish to give supplementary evidence, addressing the newly disclosed photographs, and the Defendant has agreed that he should be given such an opportunity.[14]Accordingly, we will hear from Ivy first. - - - - - - - - - - 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. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com

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