Baroness Lawrence and co-claimants win conditional right to call key witness in ANL trial

Mr Justice Nicklin has issued a significant procedural ruling in the ongoing trial of Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited, granting the claimants conditional permission to call private investigator Gavin Burrows as a live witness — but refusing to allow the late introduction of additional hearsay material and rejecting two of the three procedural routes sought.

The claimants, who include Prince Harry, Sir Elton John, Elizabeth Hurley and Baroness Lawrence, had originally elected not to call Burrows and instead served a Civil Evidence Act 1995 notice relying on selected hearsay statements. The defendant, Associated Newspapers, subsequently obtained permission under CPR 33.4 to cross-examine Burrows on those statements. The claimants then sought, during the trial itself, to change course — pursuing three alternative routes to participate in his examination.

The hearsay application

A concurrent application sought permission to rely on ten further documents attributed to Burrows, including a 2021 affidavit, a 2022 witness statement, a BBC interview transcript and seven audio recordings — none of which had been included in the CEA notice served in October 2025. The application was made eight days after the close of the claimants' evidence.

Nicklin J refused it. He found that the omission of most of the documents had been deliberate, noting that the claimants had possessed the material and made a considered selection at the time notices were required. The suggestion that the significance of the documents only became apparent during cross-examination was rejected as unpersuasive. As to the audio recordings, the absence of any attempt to identify specific statements of evidential weight compounded the difficulty. The judge accepted that granting the application would cause substantial prejudice to the defendant, which had prepared and conducted its case on the basis that the CEA notice defined the extent of Burrows' hearsay evidence.

Calling Burrows as a witness

On the question of whether Burrows could give live evidence, the court considered three options.

The first — treating Burrows as a witness of the court — was rejected without hesitation. Applying the principle in Re Enoch and Zaretzky and confirmed in Lissack v Manhattan Loft Corporation, Nicklin J held that there is no general power in ordinary adversarial civil proceedings for the court to call its own witnesses absent consent. The adversarial model was not displaced by the CPR.

The third option — allowing re-examination with liberty to treat Burrows as hostile following the defendant's cross-examination — was refused as impermissible. It would have circumvented the statutory hearsay scheme and the established limits of re-examination, amounting in substance to a second cross-examination by the claimants.

The second option — examination-in-chief by the claimants — was granted, but only on tightly confined terms. Nicklin J acknowledged this was a paradigm case of a party seeking to reverse a tactical decision once the trial had materially advanced and that no good reason existed for the CPR 32.10 default in the ordinary sense. Nevertheless, he was satisfied that the serious nature of the underlying allegations and the Court's interest in a fair determination justified a narrow departure from the usual consequence of the rule.

Permission is limited to examination on the subject-matter of the existing CEA notice. Non-leading questions are required throughout, with no deployment of prior inconsistent statements unless a formal hostile witness application succeeds. Examination-in-chief is capped at two hours, cross-examination at two and a half, and re-examination at thirty minutes. Crucially, the claimants' election to call Burrows means they can no longer rely upon his hearsay statements: the admissible evidence at trial will be confined to what he says in the witness box.

The judgement carries a clear implicit warning. Should Burrows' live evidence fail to support allegations previously advanced on the strength of his hearsay statements, the claimants and their representatives will need to consider whether those allegations can properly be maintained.

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