QB-2022-001397 - [2025] EWHC 2193 (KB)

The Claimant served statements on 5 December 2024 made by five other witnesses who did not, in the event, give live evidence, namely, Nabil Elouahabi, Enrico Tessarin, Junior Quartey, Shanika Warren-Markland and Stephanie Tripp. Until the trial, the Claimant represented that each of these witnesses would be called.

On 12 March 2025 (day 6), TKP informed Wiggin, in an erroneously dated letter:

“As you know, Mr Tessarin is in China for the period during which the Claimant’s evidence takes place. He is therefore unable to attend Court and is unable to give evidence in person or by VCR due to the lack of agreement between the Chinese and UK Governments to give evidence in English proceedings from China. His statement shall therefore be relied on as hearsay. A hearsay notice is being prepared.

Separately, we have been informed that Shanika Warren-Markland, Stephanie Tripp and Junior Quartey are no longer available to attend Court. Their statements will be relied on as hearsay, and hearsay notices will be prepared and filed with the Court.”

The same letter indicated the Claimant intended to call Mr Elouahabi (who I had permitted to give evidence by a video link two days earlier) on 17 March (day 9). On the morning that Mr Elouahabi was due to give evidence, TKP wrote to Wiggin:

“Separately, we refer to the Claimant’s application of 14 March 2025, in which he sought a Reporting Restriction Order in favour of Mr Nabil Elouahabi. Mr Elouahabi is currently extremely busy and on set filming. Unfortunately, Mr Elouahabi confirmed yesterday that his schedule for the week had been changed such that he would not be able to step away from set to give evidence. It is regrettable that this was only brought to the attention of the Claimant’s legal team last night. As such, Mr Elouahabi will no longer be able to give live evidence in these proceedings, and a hearsay notice shall be prepared on his behalf as well. Accordingly, Claimant’s Application of 14 March will no longer be pursued.”

The Claimant filed and served hearsay notices pursuant to s.2 of the Civil Evidence Act 1995 on 27 March 2025 (day 17). The reasons given for the witnesses not being called are identified in the notices as follows: (i) Mr Elouahabi: “his professional commitments”; (ii) Mr Quartey: “the media reporting of this trial”; (iii) Mr Tessarin: “being in China for the trial’s duration”; (iv) Ms Tripp: “professional and childcare commitments”; and (v) Ms Warren-Markland: “professional and childcare commitments”.

CPR 33.2 provides that where a party intends to rely on evidence contained in a witness statement of a person who is not being called to give oral evidence, he must inform the other party that the witness is not being called to give oral evidence and give the reason why the witness will not be called “when he serves the witness statement” (CPR 33.2(2)) or serve a hearsay notice “no later than the latest date for serving witness statements” (CPR 33.2(4)). In this case, the latest date for serving witness statements, and the date on which they were in fact served, was 5 December 2024. The hearsay notices were only served on 27 March 2025, towards the end of the fourth week of the trial.

CPR 33.4 provides:

“(1)

Where a party—

(a)

proposes to rely on hearsay evidence; and

(b)

does not propose to call the person who made the original statement to give oral evidence, the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

(2)

An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.”

This was the provision on which the Guardian relied when applying to cross-examine Mr Oceng. However, late service of the hearsay notices for these five witnesses deprived the Guardian of the opportunity to seek summonses.

Section 2(4) of the Civil Evidence Act 1995 provides:

“A failure to comply with subsection (1), or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court—

(a)

in considering the exercise of its powers with respect to the course of proceedings and costs, and

(b)

as a matter adversely affecting the weight to be given to the evidence in accordance with section 4.”

It follows that the five witness statements adduced by the Claimant, and in respect of which hearsay notices have been filed, are admissible despite the late notice that the witnesses would not be called.

Section 4 of the Civil Evidence Act 1995 provides:

“(1)

In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2)

Regard may be had, in particular, to the following—

(a)

whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)

whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)

whether the evidence involves multiple hearsay;

(d)

whether any person involved had any motive to conceal or misrepresent matters;

(e)

whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)

whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

A factor that I bear in mind in considering what, if any, weight to give to the hearsay statements is that none of them state the process by which they have been prepared, as required by CPR PD 32 para 18.1(5).

The trial was listed on 11 June 2024, that is many months before the witnesses made their statements. Given that until the trial began the Claimant had represented to the Court and the Defendant that all those who had given statements were going to attend, it is reasonable to infer that arrangements would have been made for them to do so.

Mr Elouahabi has given a short, 8-paragraph statement, two sentences of which I struck out on the basis it was inadmissible and irrelevant opinion evidence. The very limited evidence he has given concerns Thalia Hambi-Fisher. I infer from the circumstances in which Mr Elouahabi has chosen not to attend, at the last possible moment, despite being permitted to give evidence via a video link and given the weak assertion in the unsigned and undated hearsay notice that he has “professional commitments”, that he was unwilling to give evidence on oath or to be cross-examined on the statement he has given. In the circumstances, I give his statement no weight.

The assertion (again unsigned and undated) that Mr Quartey’s non-attendance is owing to “the media reporting of this trial”, is equally unsatisfactory. I note that Mr Khan’s ninth statement stated that several witnesses for the Claimant were concerned “whether they will be portrayed in an unfavourable manner by the press reporting on this trial”, but that statement did not concern Mr Quartey (Footnote: ³), and it was vague, speculating about future publicity without reference to any past publicity (none being exhibited). Mr Quartey’s statement (as amended: see para ‎43 above) consists of 11 paragraphs. Mr Quartey’s statement contained evidence regarding ‘Ivy’ which I have struck out, and to which I would in any event have given no weight. His statement also contains evidence regarding Mr Clarke and Davie Fairbanks to which, in the circumstances, I give no weight.

On the face of it, a better reason has been given for Mr Tessarin’s non-attendance, namely that he is in China, and that is not a country with which the necessary diplomatic arrangements are in place to enable evidence to be given by a video link. However, even in Mr Tessarin’s case, he has not personally given any evidence as to his reason for not attending the trial. The Claimant had represented until the second day of the trial that Mr Tessarin would attend to give evidence. I have been given no explanation as to when Mr Tessarin’s trip to China was arranged, the dates or purpose of his visit, or why he was abroad during a long scheduled trial. A letter from TKP on 12 March 2025 stated that Mr Tessarin would be in China “for the period during which the Claimant’s evidence takes place”, whereas the (unsigned and undated) hearsay notice states he is in China for “the trial’s duration”. Given this inconsistency, and against the background I have described, I cannot be satisfied that Mr Tessarin was, in fact, in China for the entire six-week trial period. In the circumstances, I give no weight to Mr Tessarin’s untested evidence regarding ‘Ivy’ and Mr Fairbanks, or to his assertions that he never saw any behaviour from Mr Clarke that could be construed as harassment or misconduct. However, I accept his evidence regarding himself and his relationship with Mr Clarke at paragraphs 1 and 4-7, subject to the caveat in respect of paragraph 4 that it is clear that Mr Fairbanks and Mr Clarke were close friends in 2011.

The bald assertion in unsigned and undated hearsay notices that Stephanie Tripp and Shanika Warren-Markland cannot attend due to “professional and childcare commitments”, on any day of the six-week trial, is unconvincing, not least when contrasted with the efforts made by many of the Guardian’s witnesses to make suitable arrangements (including for childcare), and in some cases to travel considerable distances, to ensure they were able to attend the trial. The trial had been listed for 10 months by the time the Claimant gave notice, on day 6 of the trial, that these witnesses would be unable to attend. I infer that they were not willing to give evidence on oath or to be cross-examined on their statements.

Ms Tripp has given a 17-paragraph statement. In the circumstances, I give no weight to her evidence regarding the circulation of allegations regarding Mr Clarke in 2019, which is in any event vague as to the identity of any complainants. I have addressed her evidence regarding the auditions for the role of Yasmin in Legacy, which is broadly uncontroversial, in paragraph ‎432 below.

Ms Warren-Markland has given a 15-paragraph statement. Her evidence that she did not put forward the allegations at paragraph 25P of the Amended Defence, and that she was not contacted by the Guardian’s journalists during their investigation, is uncontroversial. I also accept that she was told, although she does not say by whom, that the Guardian had “relied on allegations purportedly put forward by [her]”, although the representation to her was inaccurate. In the circumstances, I give little weight to her evidence regarding her audition for ‘Production A’, and I give no weight to her untested evidence regarding her participation, as a cast member, in ‘Mila’s’ audition for a role in ‘Production C’, or her experience of Mr Clarke when working with him on The Knot and Brotherhood.