- with readers working within the Securities & Investment industries
- within Wealth Management, Intellectual Property and Energy and Natural Resources topic(s)
As has been widely reported, the claim recently brought by Prince Harry and six other well-known individuals against Associated Newspapers has failed in its entirety, with Mr Justice Nicklin rejecting all the claimants’ claims for misuse of personal information (or breach of confidence)1.
Whilst the identity of the parties, and the nature of the allegations made, have generated headlines in the mainstream press, the 436-page judgment is also of interest because of the insight it provides into the way the judge analysed the (limited) available evidence. This guidance is likely to be particularly helpful in cases where a claimant lacks direct proof of the allegations made and their case depends on the Court being prepared to draw inferences of wrongdoing from the surrounding circumstances.
The claim
The claimants were seven notable public figures. They alleged that the defendant had targeted them, using unlawful information gathering (UIG) techniques (such as interception of voicemail messages, listening into live telephone calls, obtaining of information by deception (also known as “blagging”), and the use of private investigators) to obtain private or confidential information about them. Importantly, to succeed in their claim, the claimants needed to identify and prove specific instances of UIG being used against them (and that the defendant had been legally responsible for the UIG). In most cases, the claimants sought to do this by reference to articles about them, which were published in the Daily Mail, The Mail on Sunday and MailOnline (the Articles).
The evidential landscape
This case arose out of an unusual set of circumstances and it is not the aim of this article to focus on the details of the allegations made. However, there are features of the case which frequently arise in high-value complex litigation. In particular, the Court was invited to make findings of serious wrongdoing in circumstances where the claimants could have had little direct knowledge of the allegations they were making. Difficulties in finding out what happened were compounded by the fact that relevant events took place many years previously with the result that memories had faded and documents had (for legitimate reasons) been lost or destroyed.
At paragraphs 40-65 of his judgment, the judge set out his approach to the fact-finding exercise required of him in these circumstances. Below we consider some of the points made by the judge.
Burden and standard of proof
The judge repeatedly emphasised that the burden lay on the claimants to prove the facts necessary to establish each part of their claims. The standard of proof was the balance of probabilities but the more serious (and inherently less probable) the allegation, the more cogent the evidence required to prove it. It followed, in the judge’s view, that where the Court was asked to make findings of dishonesty or “similar discreditable misconduct”, more convincing evidence may be required than would be needed for less inherently improbable conduct.
Fundamentally, it was the claimants’ inability to satisfy this burden of proof in any specific instances of alleged use of UIG that caused their claims to fail.
The pleaded allegations of UIG
The claimants’ pleaded case contained general allegations against the defendant, for example, that the defendant’s use of UIG was “habitual and widespread”. However, these types of points appear to have carried little weight with the judge who said that this “generic” case was not a substitute for the need for each claimant to prove the specific instances of UIG alleged by them.
The judge also took a firm line on the statements of case. Where a claimant wished to allege that a specific form of UIG had been used, that allegation had to be properly pleaded. As the judge said, this was not a technical point but rather a requirement of fairness because allegations of UIG are serious and the defendant was entitled to have proper notice of them.
Propensity evidence
Propensity evidence or similar fact evidence is evidence that a person had a tendency to engage in a particular type of conduct on other occasions, which is used to support an inference that they behaved the same way on the occasion in dispute. For example, if it could be shown that a journalist had a propensity to use a particular type of UIG on other occasions, this might support the making of an inference that the same journalist had used that type of UIG when producing an Article.
Propensity evidence formed a substantial part of the claimants’ case but, in interim decisions and at trial, the judge limited the use of such evidence in order to keep it within what he considered to be manageable and proportionate bounds. In doing so, he made the following points:
- Propensity evidence is capable, in principle, of being admissible in civil proceedings, but even where propensity is established against an individual, it cannot of itself prove wrongdoing on another occasion - at most it may support an inference where other evidence points the same way.
- Propensity evidence must be relevant to and probative of an issue that the Court has to decide. Evidence that one journalist tended to use UIG could not normally be used to prove that a different journalist did so. Nor would evidence that a journalist had a propensity for using one form of UIG (for example, blagging) of itself support an inference that a different form of UIG (for example, voicemail interception) was used on another occasion.
- The Court should adopt a two-stage approach to propensity evidence. The first stage is to consider whether the evidence is logically probative. If the evidence overcomes that first hurdle, the Court should then consider whether investigation and resolution of the asserted propensity material would be disproportionate, oppressive, or would generate satellite disputes that distract from the real issues. If so, the evidence could be excluded at this second stage on case management grounds.
The fallibility of human memory
The judge referred to the important case of Gestmin SGPS SA v Credit Suisse (UK) Ltd [2020] 1 CLC 428, where Leggatt J (as he then was) explained that human memory is not a fixed or accurate record of past events, but is malleable and susceptible to unconscious reconstruction over time. The parties agreed that particular caution was required in this case, given that relevant events had taken place 20 or even 30 years previously.
Against that background, the judge articulated what has become the standard approach to witness evidence, namely a recognition that human memory is fallible (even where a witness honestly believes what they are saying) and that, whilst there is no rigid rule elevating documentary evidence above all other forms of evidence in every case, a cautious and principled approach to fact-finding will involve recognising that contemporaneous documentation usually provides a “more reliable evidential foundation” than witnesses’ recollections of what was said or done in meetings or conversations.
The documentary record
As noted above, the documentary record was incomplete. For example, there was a lack of “second pages” to invoices supporting payments to third-party investigators, which would have itemised the work done and which could have played an important role in identifying whether this involved UIG. The judge accepted that the absence of documentation was part of the overall picture that the Court should take into account, and that gaps in the record might justify the drawing of inferences, for example, where supporting documentation might be expected to exist if a particular version of events was true. However, he also made it clear that the absence of documents was not in itself proof of wrongdoing and warned against the risk of “overconfident inference building from incomplete records”.
Absent witnesses and adverse inferences
The claimants attached significance to the absence of certain witnesses and invited the Court to draw adverse inferences from the defendant’s failure to call them. As the judge noted, the leading case on this issue is Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, where the Supreme Court emphasised that the drawing of adverse inferences from the absence of a witness is not governed by rigid or technical rules and that the question of whether any positive significance should be attached to the failure to call a particular witness depends on context. The judge said that, in practical terms, adverse inferences may be drawn where there is some evidence on a live issue that calls for an answer and the absent witness could have given material evidence on that issue. However, even where these conditions are satisfied, the absence of a witness can only support an inference for which there is other evidence; it cannot be used to provide a missing evidential link or to reverse the burden of proof.
Inferences and evaluation
In the absence of direct proof of use of UIG in relation to the Articles or other incidents relied upon, the claimants’ case depended on inviting the Court to draw inferences that UIG must have been used. For example, it was argued that it should be inferred from the private and specific nature of the information contained in many of the Articles that UIG had been used to obtain that information (because, it was argued, the information could not have been obtained by legitimate means). The judge was not at all receptive to this type of argument. His approach was typified at paragraph 486 of the judgment where, in response to an allegation that a “blagger” had been commissioned to obtain itemised billing data for the phone of a contact of Prince Harry, he said:
“In substance, Prince Harry’s case invites the Court to infer UIG from the private character of the information, the absence of a complete note of every detail [showing how the Article was sourced], and Prince Harry’s belief that the information could not have become known legitimately. That is insufficient. The Court must decide the case on evidence and proper inference, not on speculation.”
More generally, the judge summarised his approach to the fact-finding process as follows: “the drawing of inferences is an evaluative exercise, grounded in common sense. But it is not a licence for speculation: it must be anchored in the evidence” and “drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn”.
The witness evidence of Gavin Burrows
In addition to the general comments described above, it is also worth looking at some of the issues that arose out of the evidence of Gavin Burrows. Mr Burrows was a private investigator whose alleged UIG activities on behalf of the defendant became one of the most contested evidential battlegrounds in the case.
The claimants sought to rely on a body of documents attributed to Mr Burrows, including a witness statement dated 16 August 2021 (the August 2021 witness statement), said to contain confessions of phone tapping, blagging, and interception carried out by Mr Burrows for the defendant. Initially, the claimants served a notice under the Civil Evidence Act 1995 stating an intention to rely on these documents as hearsay evidence. However, they ultimately ended up obtaining limited permission to call Mr Burrows as their own witness. When giving evidence Mr Burrows denied that he had done any unlawful work for the defendant or that he had authored the documents specified in the hearsay notice. In particular, Mr Burrows said that the August 2021 witness statement was “fake” and that the signature on it was not his.
The claimants then successfully applied for permission to treat Mr Burrows as a hostile witness. One of the issues that arose out of this series of events was whether the claimants could rely on the August 2021 witness statement. This in turn depended on whether the claimants could prove that the August 2021 witness statement was a statement made by Mr Burrows, which was inconsistent with the evidence given in court (for the purposes of s6 Civil Evidence Act 1995 and ss3-5 Criminal Procedure Act 1865).
The main question was whether the claimants could prove that the August 2021 witness statement was “made by” Mr Burrows. The difficulty here was that, regardless of whether or not Mr Burrows had in fact signed the August 2021 witness statement, the claimants could not show that the words used in the statement were actually Mr Burrows’ own words, as opposed to words generated by others and attributed to him.
That was because the main point of contact with Mr Burrows was a certain Mr Johnson (another investigative journalist who played a role in the bringing of the claim and who gave evidence on behalf of the claimants), rather than a solicitor. As a result, the August 2021 statement was largely drafted and based on Mr Johnson’s memos of his meetings with Mr Burrows and other pre-existing documents, rather than on solicitor-led evidence-taking in which the solicitor asked questions and recorded Mr Burrows’ responses in a way that permitted later verification of what he had actually said.
The judge also referred to Practice Direction 57AC (PD57AC), which governs the taking of trial witness statements in the Business and Property Courts, and which requires the legal representative responsible for the witness statement to take the witness through the rules to ensure that proper practice is adopted. The legal representative is also required to sign a statement of compliance confirming that this has been done. In this case, the solicitor did sign the statement of compliance even though the only person she spoke to about the rules was Mr Johnson - who was therefore the only channel through which the rules could have been explained to Mr Burrows (if this had happened at all).
According to the judge, this meant that “the core safeguard which PD57AC is designed to provide – namely responsibility of the relevant legal representative for ensuring that the witness has been properly taken through the relevant requirements and that the statement records the witness’s own evidence – was not, in substance, present”. As a result, this “did not permit a reliable conclusion” that the August 2021 witness statement was in Mr Burrows own words or that it was made by him.
The result in this case was that the claimants could not rely on the August 2021 witness statement. More generally, this demonstrates the importance that the Court attaches to the rules on the preparation of trial witness statements. Although the issue arose in a specific statutory context in this case, PD57AC makes it clear that non-compliance with the rules can have serious consequences, including withdrawal of permission to rely on the evidence of the relevant witness. Unsurprisingly, the judge was critical of the solicitor responsible for the preparation of the August 2021 statement, describing her decision to sign the statement of compliance as a “serious error of professional judgment”.
Nicklin J's judgment provides a valuable illustration of the approach adopted by the Court to fact-finding in cases where there is a lack of direct evidence to substantiate a claimant's suspicions of wrongdoing. The Court will, where appropriate, draw inferences of wrongdoing but those inferences must be “anchored in the evidence” and not be based on speculation or “optimistic guesswork”.
Whilst judges are sometimes reluctant to decide cases by reference to the burden of proof, the judge had little choice but to do so in this case because there was insufficient material available for him to decide how the Articles were sourced. In order to discharge that burden, the claimants needed to produce sufficient evidence to justify the inference that each specific Article was the product of UIG (for which the defendant was responsible).
However, the claimants’ approach seems to have been to try to show a culture of wrongdoing at the defendant and to ask the Court to draw inferences from that general starting point. Even if the claimants had been able to establish this general culture of wrongdoing, the judge was clear that this was not a permissible approach and that he would not engage in a wide-ranging review of historic practices amongst the defendant’s journalists, akin to a public inquiry. Consistent with this approach, the judge appears to have attached little weight to evidence of wrongdoing on other occasions not linked to the specific Article or other alleged instance of UIG under consideration.
More broadly, for parties contemplating claims involving alleged historic wrongdoing, stale evidence and incomplete documentary records, the judgment offers a useful framework for the questions the Court is likely to pose: what direct evidence exists of the specific act complained of; what, if anything, may properly be inferred from the surrounding circumstances; and whether any such inference is genuinely anchored in the evidence or amounts, in reality, to no more than genuinely felt suspicion.
Postscript – the costs judgment2
Things went from bad to worse for the claimants at the subsequent hearing on costs. The judge ordered the claimants to pay the defendant’s costs on the indemnity basis which, as explained below, will likely mean that there is a shortfall in the claimants’ after-the-event (ATE) insurance arrangements.
Costs can be awarded on either the indemnity basis or the standard basis. When costs are awarded on the indemnity basis, any doubt about the reasonableness of costs incurred is resolved in favour of the receiving party and the amount of recoverable costs is not limited to what is proportionate. A further consequence is that the receiving party will not be confined to recovering the amounts set out in any costs budgets approved by the court.
Costs may be awarded on the indemnity basis where a party’s behaviour takes the case outside the ordinary and reasonable conduct of litigation. In this case, the judge pointed to a number of factors as justifying indemnity costs. These included the breadth of the claimants’ pleaded case, the extent to which the claims were speculative and based on inference and the gravity of the allegations made. The judge said that it had been a “high risk strategy” for the claimants to make allegations of the utmost seriousness before establishing an evidential foundation for those allegations and then to plead their case “at the widest possible level” with a view to obtaining disclosure to substantiate their claims. The judge was also critical of the fact that allegations of serious impropriety, amounting in some cases to criminal conduct, had been made against named individuals and that those allegations had not been withdrawn when it became clear that the evidence did not support them.
A particular difficulty for the claimants was that they had arranged their ATE insurance by reference to the figures set out in the approved costs budgets for the defendant’s costs. Reports suggest that they have cover for £16.2m of adverse costs. However, freed from the constraints of the costs budget, the defendant will now seek to recover all its incurred costs of over £34m. Whilst the claimants will almost certainly not be ordered to pay the full amount on detailed assessment, it seems unlikely that £16.2m cover will be adequate and the shortfall may be significant. The judge recognised this but held that it was not a good reason to decline to award costs on the indemnity basis. He also refused to impose a cap on the amount of the defendant’s costs, saying that the Court does have jurisdiction to do this in a suitable case but this was not such a case.
Footnotes
1. Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited [2026] EWHC 1637 (KB).
2. [2026] EWHC 2207 (KB).
Macfarlanes is a pre-eminent law firm advising a global client base across Private Capital, Private Wealth, M&A and Disputes.
Visit our website to learn more about our services and how we can assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
