PI Brief Update

If at First you Don’t Succeed, Apply and Apply Again: Claimants Obtain Permission for Evidence Midway Through Trial - Georgina Pressdee, Temple Garden Chambers

24/03/26. On 12 March 2026, Mr Justice Nicklin handed down his judgment in Baroness Lawrence of Clarendon v Associated Newspapers Ltd [2026] EWHC 556 (KB). There were two applications by the Claimants for him to consider:

1. An application, mid-trial and eight days after the conclusion of their evidence, to adduce and rely on 10 further documents as hearsay evidence.
2. An application for that same witness to give oral evidence by being –
   1. Called by the Court and cross-examined by both parties;
   2. Examined-in-chief; or
   3. Re-examined, with liberty to apply to treat him as a hostile witness.

Background

The Claimants had originally elected not to call the witness and instead served a Civil Evidence Act 1995 (“CEA 1995”) notice. None of the further documents were included in that notice. However, the Defendant had obtained permission to cross-examine.

Legal Framework

In reaching his decision, Mr Justice Nicklin recalled that a failure to serve a hearsay notice in compliance with Section 2 CEA 1995 does not automatically render it inadmissible (Section 2(4)). He then rehearsed several well-established legal principles:

1. Civil litigation in England and Wales is adversarial. Save in exceptional or statutorily defined circumstances, the Court will not itself originate or call evidence.
2. Where a party deliberately elects not to call a witness, they must ordinarily accept the procedural and evidential consequences of their choice to rely on hearsay evidence.
3. The CEA 1995 permits hearsay evidence but balances admissibility by...

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