STRIKING OUT PART OF A WITNESS STATEMENTS: SOME PART OF THESE HAVE TO GO: HIGH COURT DECISION

The judgment of Mrs Justice Steyn in Vardy  -v- Rooney & News Group Newspapers Ltd [2022] EWHC 946 (QB) also contains a consideration of an application to strike out part of the witness statement.  There is a review of the relevant principles and guidelines.

“witness statements are a proper vehicle for relevant and admissible evidence going to the issue before the court, and for nothing else. Argument is for advocates. Innuendo has no place at all”.

THE JUDGMENT ON THIS ISSUE

(3) The claimant’s application to strike out parts of the defendant’s witness statement

1. 90. The claimant applied by an application notice dated 11 April 2022 for an order that:

“The Defendant shall, by 4pm on 19 April 2022, file and serve an amended version of her witness statement dated 1 April 2022, which deletes the paragraphs or parts of paragraphs identified in the Schedule to this Order.”

1. 91. The schedule identifies about 111 whole paragraphs and parts of a further 16 paragraphs which the claimant submits should be deleted.

1. 92. The defendant’s position is that the application is disproportionate, concerns passages that provide background narrative, and that in any event it would be better considered (if necessary) at the start of the trial itself. In support of her opposition to the claimant’s application, the defendant has identified eight paragraphs of the claimant’s statement that she submits are examples of the same type of evidence as the claimant complains of in her statement.

The law

1. 93. CPR 32.1 provides, so far as material:

“The court may control the evidence by giving directions as to—

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

1. 94. CPR 32.4(1) provides:

“A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”

1. 95. The Queen’s Bench Guide 2022 states at paragraph 10.60 that the following matters should be borne in mind:

“1. A witness statement must contain the truth, the whole truth and nothing but the truth on the issues it covers;

2. Those issues should consist only of the issues on which the party serving the witness statement wishes that witness to give evidence in chief and should not include commentary on the trial bundle or other matters which may arise during the trial or may have arisen during the proceedings;

3. A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included. An application may be made by an opposing party to strike out inadmissible or irrelevant material. If a party does object to the contents of a witness statement, they should notify the other party of their objection within 28 days after service of the statement and the parties should seek to resolve the matter. Otherwise an application should be made to the court for direction; …” (Emphasis added.)

1. 96. As Sedley LJ observed in William v Wandsworth LBC [2006] EWCA Civ 535 at [80], “witness statements are a proper vehicle for relevant and admissible evidence going to the issue before the court, and for nothing else. Argument is for advocates. Innuendo has no place at all”.

1. 97. In JD Wetherspoon plc v Harris (Practice Note) [2013] 1 WLR 3296 Sir Terence Etherton C heard, amongst other matters, an application to strike out the majority of a witness statement made by Mr Goldberger on behalf of the second to fourth defendants. He held:

“33. The vast majority of Mr Goldberger’s witness statement contains a recitation of facts based on the documents, commentary on those documents, argument, submissions and expressions of opinion, particularly on aspects of the commercial property market. In all those respects Mr Goldberger’s witness statement is an abuse. The abusive parts should be struck out.

…

39. Mr Goldberger would not be allowed at trial to give oral evidence which merely recites the relevant events, of which he does not have direct knowledge, by reference to documents he has read. Nor would he be permitted at trial to advance arguments and make submissions which might be expected of an advocate rather than a witness of fact. These points are made clear in paragraph 7 of Appendix 9 to the Chancery Guide 7th ed (2013), which is as follows:

“A witness statement should simply cover those issues, but only those issues, on which the party serving the statement wishes that witness to give evidence in chief. Thus it is not, for example, the function of a witness statement to provide a commentary on the documents in the trial bundle, nor to set out quotations from such documents, nor to engage in matters of argument. Witness statements should not deal with other matters merely because they may arise in the course of the trial.”

…

41 I recognise, of course, that these rules as to witness statements and their contents are not rigid statutes. It is conceivable that in particular circumstances they may properly be relaxed in order to achieve the overriding objective in CPR r 1 of dealing with cases justly. I can see no good reason, however, why they should not apply to Mr Goldberger’s witness statement in the present proceedings.” (Emphasis added.)

1. 98. In Aven v Orbis [2020] EWHC 474 (QB) Warby J observed at [17] that the additional points made in the passage from the Chancery Guide cited by the Chancellor in JD Wetherspoon at [39], that it is not the function of a witness statement to set out quotations from documents in the trial bundle nor to engage in matters of argument, are not specific to the Chancery Division. At [13], Warby J observed that the Chancellor, in JD Wetherspoon

“evidently accepted the submission for the claimant, that the claimant would be placed in difficulty by such a statement because it would be difficult for counsel to decide how much of, and precisely which parts of, the witness statement should be the subject of cross-examination. I would respectfully accept and adopt that point. I would add that a proper separation between evidence and argument, fact and opinion, is important for other participants in or observers of the judicial process. The task of the Judge is complicated if these distinct matters are confused or intertwined, in a witness statement. Muddling up these separate elements of the process will also tend to make proceedings harder for observers to follow, and for reporters to explain. For all these reasons, it is important that documents presented to the Court should focus on the functions they are meant to perform, and not stray into other domains.”

1. 99. In Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch) Mann J considered an application, at a pre-trial review, to strike out paragraphs in witness statements on the grounds of obvious irrelevance and/or disproportionality. He observed at [5]:

“… However, desirable though the power to control evidence obviously is, particular care must in my view be taken when it is sought to exercise the power before a trial. It is noteworthy that the two cases which I have referred to above were both cases in which the issues as to evidence arose during the course of trials. By the time that the issue arises in that context, the judge is likely to have a much fuller overall picture of the issues in the case and of the evidence which is going to be adduced in support of them. In a large number of cases, he or she is likely to be in a better position to make judgments which turn on the real value of the line of evidence in question and its proportionality, and in very many cases its admissibility. A court which is asked to approach these questions at the interlocutory stage is much less likely to have that picture, and should be that much more careful in forming a view that the evidence is going to be irrelevant, or if relevant, unhelpful and/or disproportionate. One must also bear in mind the extent to which it is desirable to consider these matters at all at an interlocutory stage. One must be on one’s guard, in applications such as this, not to allow case management in relation to witness statements to give rise to significant time− and cost−wasting applications; those should not be encouraged. In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it. With evidence of this nature, that is likely to be quite a heavy burden. ”

Analysis

1. 100. There is no real dispute as to the legal principles. The question that arises is how they should be applied in this case. The defendant’s witness statement runs to 300 paragraphs, covering 61 pages. The claimant has prepared a schedule of the material she seeks to strike out. The various reasons the claimant seeks to strike out material in the defendant’s witness statement are that the paragraphs consist of (i) a recitation of material disclosed by the claimant which will be included in the trial bundle; (ii) commentary or submissions; (iii) material which is irrelevant; (iv) material which is hearsay; and (v) material which is unpleaded or seeks to reintroduce material that has been struck out of the defence.

Recitation of disclosure and commentary/submissions

1. 101. The overlapping objections that the defendant’s statement consists of recitation of or commentary on documents in the trial bundle is raised in respect of the following paragraphs: 7-12, 28-29, 43-44, 59-60, 62-63, 69 (part), 70, 72-74. 77, 79, 84, 94, 97-114, 119-121, 123-124, 130-133, 134 (part), 136, 137 (part), 138 (part), 139 (part), 140, 141 (part), 162-163, 165, 168, 169, 175-176, 184, 200 (part), 202, 204-205, 209 (part), 210, 211 (part), 212, 217, 218, 219 (part), 220, 221-222, 223 (part), 224, 231, 232 (part), 233, 247 (part), 253, 255 (part), 256 (part), 257, 258 (part), 260, 265-266 and 269.

1. 102. For example, under the heading “overview”, in paragraphs 7-12, the defendant states:

“7. I have always been confident in the truth of what I posted on 9 October 2019 and the documentation which Becky has disclosed as part of these proceedings, in particular her WhatsApp conversations with her agent Caroline Watt, has only further reinforced my view on that. [The defendant then exhibits 43 pages of WhatsApp exchanges between the claimant and Ms Watt, as well as 9 pages of WhatsApp exchanges between herself and the claimant.]

8. For instance, in the course of discussing my Instagram story about being involved in a car accident (which eventually appeared in The Sun) and my post on Twitter expressing my disappointment that someone I trusted was leaking my posts/stories to The Sun in January/February 2019, they exchanged the following messages…”

1. 103. The remainder of paragraph 8 consists of five subparagraphs (a) to (e) in which the defendant quotes and in two cases comments on messages between the claimant and Ms Watt. In paragraph 9, the defendant comments on what she considers to be clear from these messages. In paragraph 10, the defendant states that it has become clear to her that the claimant and Ms Watt “worked together, almost in a business-like fashion, in order to leak private information about other high-profile individuals to the press”, a contention that the defendant seeks to support in subparagraphs (a) to (h), each of which quotes from WhatsApp messages exchanged between the claimant and Ms Watt. The defendant’s “overview” continues:

“11. What is more, it is clear to me from their exchanges that Becky was also actively participating in leaking private information about other individuals to The Sun. My suspicion that Becky engaged in this sort of conduct was one of the factors which led me to believe she was the source in October 2019 when I uploaded my post on social media and was what I was trying to say to everyone.

12. It has also come to light that there are numerous occasions on which we have been prevented from viewing potentially crucial evidence from Becky’s side…”

1. 104. The defendant’s statement continues in subparagraphs (a) to (i) to describe alleged failings in the disclosure process.

1. 105. Two further examples will suffice:

1. i)

In paragraph 62, the defendant sets out in subparagraphs (a) to (e) events that she states she is now aware of as “a result of Becky’s disclosure”, quoting in each subparagraph from that disclosure, and then giving her view on what this disclosure shows in paragraph 63.

1. ii)

In paragraphs 98 to 104, the defendant refers to articles by Mr Halls, suggests the claimant’s WhatsApp communications with Ms Watt show that he was a close contact of Ms Watt, comments on the nature of the information revealed in the articles, sets out messages between the claimant and Ms Watt is referenced, and comments on the disclosed documents.

1. 106. The defendant contends that her ongoing belief in the truth of her Post is relevant given the claimant’s claim for general and aggravated damages relies on the fact that the Post continues to be published online. She contends that it would not be right to strike out background narrative, particularly at this stage. The claimant’s approach is “nit-picking”, disproportionate and liable to increase costs and potentially add to delay. Further, it is inconsistent with certain paragraphs of the claimant’s own statement in which she comments on disclosure and engages in argument.

1. 107. I accept the defendant’s submission that her ongoing belief is, or at least may be, relevant and so it would not be appropriate to strike out expressions of her current belief. But the claimant’s objections to the large number of paragraphs in which the defendant quotes the messages between the claimant and Ms Watt, comments on those messages or on other matters such as the claimant’s disclosure, cannot reasonably be described as nit-picking. The defendant cannot give evidence regarding communications to which she was not a party. Commentary on the effect of those communications is a matter of argument for counsel. It has no place in the defendant’s witness statement. In my judgement, the pre-trial review is a proper stage to require the excision of parts of the defendant’s statement which should not have been included. On the other hand, I bear in mind the need to take a proportionate approach, and to avoid any unnecessary increase in costs or delay where material does not obstruct the adjudicative process.

1. 108. Applying the principles to which I have referred, the claimant’s application in respect of the material referred to in paragraph 101 succeeds save to the extent that the following material will not be struck out:

1. i)

Paragraph 7: the defendant is entitled to refer to her current belief

1. ii)

Paragraphs 59-60: although these paragraphs cite from and comment on disclosure, I am prepared to leave them in on the basis that the defendant is referring to messages between herself and the claimant about which she can give evidence.

1. iii)

Paragraph 69: it would be disproportionate to strike out the single sentence in the middle of the paragraph to which objection is taken.

1. iv)

Paragraph 110: the defendant is entitled to give evidence as to her general awareness when she wrote the Post of “the strong relationship which Becky seemed to have with The Sun and its journalists at the time”.

1. v)

Paragraph 133(b): the defendant is able to give evidence as to who Dawn Ward and Leanne Brown are (two people mentioned in messages between the claimant and Ms Watt) and to explain why she discounted them as people who might have disclosed posts from her Private Instagram Account. Although the beginning of this subparagraph includes commentary on messages between the claimant and Ms Watt, a reference to their messages referring to Ms Ward and Ms Brown is necessary background and it would be disproportionate to excise parts of sentences.

1. vi)

Paragraph 133(g): the defendant is able to give evidence to explain the reference to Rosie in the claimant’s message to Ms Watt. Again, although this subparagraph includes some commentary on the disclosure, it is proportionate to allow the whole subparagraph to remain.

1. vii)

Paragraph 134: the defendant is able to give evidence regarding an article about herself and her husband, and the messages that she exchanged with the claimant. Although this paragraph also includes some commentary on and recitation of messages between the claimant and Ms Watt, in explaining the chronology, it would be disproportionate to excise those parts of the paragraph.

1. viii)

Paragraphs 138, 139 and 141: although there is a sentence of commentary in each of these paragraphs, there is no objection to most of each of these paragraphs and it would be disproportionate to excise the parts of paragraphs to which objection is taken.

1. ix)

Paragraph 184: although this paragraph includes some commentary on disclosure, it also includes the defendant’s evidence as to matters that she noticed prior to her Post about which she is able to give evidence. It would be disproportionate to excise parts of this paragraph.

1. x)

Paragraph 200: there is less than a sentence of commentary on disclosure in this paragraph, the vast majority of which is unobjectionable, and it would be disproportionate to require the removal of that small part.

1. xi)

Paragraph 218: the defendant is able to give evidence from her own knowledge as to who Ashley Moore is and it would be disproportionate to remove the minimal commentary in the first sentence.

1. xii)

Paragraph 219 (part only): in addition to the first sentence to which no objection is taken, the defendant is also able to give evidence of her understanding that the Secret WAG column was said to have been worked on by only Jane Atkinson and Victoria Newton. However, the remainder of the paragraph is clearly commentary on disclosure and argument as to what was meant by messages to which the defendant was not a party and should not be in the witness statement.

1. xiii)

Paragraph 247: the vast majority of this paragraph is unobjectionable and it would be disproportionate and unnecessary to remove the brief general comment to which objection is taken.

1. xiv)

Paragraph 255: the defendant is able to give evidence regarding her own exchange with the claimant. Although there is some commentary in this paragraph, it is minimal.

1. 109. In relation to paragraph 269, the first two sentences are not recitation of disclosure, commentary or argument. I consider the objection to these two sentences, namely that they are irrelevant, in the section below. The claimant’s application succeeds in relation to the remainder of the paragraph which consists of a submission that can be made by counsel but has no place in the defendant’s statement.

Material which is irrelevant, hearsay, unpleaded and/or relates to material that was struck out

1. 110. The objections that the defendant’s statement consists of irrelevant, hearsay or unpleaded material (including material struck out of the defence) is raised in respect of the following paragraphs: paragraphs 7-8, 71-72, 85 (part) 97-114, 261-269, 271, 273-291 and 292-295. I have already found that the claimant’s application in respect of paragraphs 8, 72, 97-109, 111-114, 265-266 and 269 (from “I find it staggering…”) succeeds on the basis addressed in the section above.

1. 111. It is appropriate to take a generous view of what may be relevant at this stage, bearing in mind this is only the pre-trial review. Although I have the statements of case, I have not yet heard the full range of arguments that the parties will deploy when the substantive issues are tried. For the reasons I have given in the section above, I reject the application to strike out paragraphs 7 and 110.

1. 112. Paragraph 71 of the defendant’s statement states:

“As an aside, I am aware that Becky had attended the 2018 National Television Awards and produced and provided various pieces of “behind the scenes” footage for The Sun. She also got in a spat with former Girls Aloud group member Sarah Harding (“Sarah”) during the 2018 event because Sarah apparently caught Becky taking photographs of the contents of Sarah’s handbag when Sarah had dropped it on the floor. Their dispute subsequently appeared in The Sun.”

1. 113. The defendant’s Amended Defence had included, at paragraph 15(37(h), the following:

“Similarly, the Claimant was working for The Sun during the 23rd National Television Awards on 23 January 2018 and produced a ‘behind the scenes’ video that was subsequently published on The Sun website. This was organised through FRP. At the awards ceremony the Claimant was accused by Sarah Harding of taking intrusive photographs of her without her consent, as was reported in The Sun on 27 January 2018.”

1. 114. I struck out paragraph 15(37)(h) pursuant to CPR 3.4(2)(a) and (b), giving the following reasons in my judgment of 7 July 2021 (Vardy v Rooney (2) [2021] EWHC 1888 (QB)) at [56]-[57]:

“Paragraph 15(37)(h) includes the pleading that at an awards ceremony “the Claimant was accused by Sarah Harding of taking intrusive photographs of her without her consent”. A breach of privacy, in the form of taking intrusive photographs, would be potentially probative. However, the defendant does not allege that the claimant took intrusive photographs of Ms Harding. The fact that the claimant was accused of doing so is incapable of providing any support for the defendant’s plea of truth.

In my judgment, insofar as the facts pleaded in §15(37) have any relevance, it is as background facts or evidence, not material facts necessary for the purpose of formulating the defence.”

1. 115. The claimant objects to paragraph 71 on the basis that (i) it is not a matter on which the defendant can give direct evidence (ii) it is irrelevant and (iii) it relates to material that was struck out of the defence.

1. 116. The hearsay nature of the evidence is a matter that goes to weight rather than admissibility. The fact that the material was struck out of the defence does not, in and of itself, show that it ought to be struck out of the defendant’s statement. Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Paragraph 71 relates to the claimant’s relationship with The Sun and contains an allegation that the claimant took intrusive photographs while working for them. Applying the generous approach to relevance which I consider to be appropriate at this stage, I reject the contention that paragraph 71 should be struck out.

1. 117. The claimant objects to paragraph 85 (save for the first sentence) on the basis that the material addresses the defendant’s reaction to disclosure which is irrelevant. In this paragraph the defendant comments on and quotes from the WhatsApp messages between the claimant and Ms Watt and describes how she felt when she became aware of these exchanges during these proceedings. The defendant’s commentary on and recitation of these documents has no place in her witness statement and the effect on her of reading them does not go to any relevant issue. Paragraph 85 (save for the first sentence) should be excised.

1. 118. In paragraphs 261 to 264, under the heading “reaction to the Post – Becky and The Sun”, the defendant refers to Tweets by the claimant on 10 October 2019 and articles containing interviews with the claimant’s father and with the claimant the same day. The claimant objects that these paragraphs are irrelevant. Applying a generous approach to relevance at this stage, I do not consider that these paragraphs should be struck out. The claimant’s initial response to the Post is potentially of some relevance in assessing the defendant’s truth defence.

1. 119. In paragraph 267 of the defendant’s statement she addresses “communications going on behind the scenes on 10 October 2019 between Becky, Dan Wootton, Caroline Watt and Nicola McLean”. I have some concern that this paragraph appears to be commentary on disclosure, but the sole objection taken by the claimant is that it is irrelevant. At this stage, it is not plain to me that, no matter how the proceedings look at trial, the evidence in this paragraph will never appear to be relevant or sufficiently helpful to make it right to allow the defendant to adduce it. Accordingly, I reject the objection to paragraph 267.

1. 120. In the first sentence of paragraph 268 the defendant states that on 11 October 2019 she was informed by Paul Stretford that he had been told by Ian Monk that there was “speculation around the newsrooms” that Ms Watt was going to be sacked as the claimant’s agent. In the second sentence the defendant states that she now knows from matters that have come to light during this dispute that on 11 October 2019 Ms Watt deleted her Twitter account. The claimant objects that this paragraph is irrelevant. The defendant submits this material provides a helpful narrative and is relevant to the defendant’s continuing belief in the truth of the Post.

1. 121. It is impossible to see how evidence of speculation around the newsrooms that Ms Watt was going to be sacked by the claimant, an eventuality that did not occur, is of any relevance to the determination of the issues in this claim. The deletion of Ms Watt’s Twitter account may be of relevance, but that will be a matter for submission: the defendant’s reference to its deletion is simply commentary on disclosure.

1. 122. In the first two sentences of paragraph 269, the defendant states that Ms Watt’s Twitter account, prior to its deletion, had been very active since its creation in 2011, as the defendant would expect of a PR agent. On its face, this appears to be direct evidence rather than commentary on evidence that has been disclosed. Applying a generous approach to relevance, I reject the contention that these sentences should be struck out.

1. 123. Paragraph 271 refers to an article in the Mail Online on 13 October 2019, containing photographs of the claimant attributed to Splash News, and referring to the claimant’s emotional state following the Post. The claimant objects this paragraph is irrelevant. Given there is a claim for aggravated damages, and applying a generous approach to relevance at this stage, I reject the contention that paragraph 271 should be struck out.

1. 124. Paragraphs 273-291 appear under the heading “reaction to the post – other individuals”. In these paragraphs the defendant sets out the responses to her Post that she received from (i) Lesley Cloke; (ii) Kim Hart; (iii) Annie Kilner; (iv) Georgina Cleverley; (v) Danielle Lloyd and (vi) Nicola Carragher. The first five all include some form of allegation of disclosure of private information by the claimant. The claimant objects that these paragraphs are hearsay and unpleaded similar fact evidence. Mr Tomlinson QC submits that these paragraphs are particularly objectionable and he submits that such knowledge as the defendant has acquired after publishing her Post is not relevant.

1. 125. In addition, the claimant contends that paragraph 285 includes material that has previously been struck out of the defence. Paragraph 285 of the defendant’s statement states:

“Danielle and Becky also previously had arguments about Becky disclosing screengrabs of her conversations with Danielle to the press; her obtaining private medical information about Danielle; and the fact that Danielle was told by a journalist at The Mail that Becky is the Secret WAG”

1. 126. The Re-Amended Defence had included the following in paragraph 15(32)(h):

“Further, the Claimant has also directly disclosed private information about other people with whom she is friendly or associated, such as about … Danielle Lloyd’s pregnancy …”

This was expanded in paragraph 15(46)(f) which asserted that the claimant improperly obtained information about a medical procedure undertaken by Danielle Lloyd, giving details in eight subparagraphs.

1. 127. In fact, the reference to disclosure of Ms Lloyd’s confidential medical information was withdrawn rather than struck out. Following the claimant’s application to strike out various parts of the Re-Amended Defence, the defendant withdrew the matters pleaded at paragraphs 15(45) and (46) (and consequently also 15(32)(h)), indicating in the witness statement of Mr Lunt that the court would not be required to further consider the matters there pleaded “which will no longer be pursued”: see Vardy v Rooney (2) at [5].

1. 128. The defendant contends that paragraphs 273-291 are relevant as they go to the defendant’s development and fortification of her ongoing belief that the Post is correct, as well as supporting the defence of truth.

1. 129. The principles to which I have referred in paragraph 116 above apply equally here. As I have said, I accept that given the claim for aggravated damages based on the continuing publication of the Post, the defendant’s ongoing belief in the truth of the Post is potentially relevant and so knowledge acquired after the Post was published is potentially relevant.

1. 130. Nonetheless, the claimant’s application succeeds in relation to the following paragraphs:

1. i)

274-275: the material in these paragraphs amounts to a bare assertion of belief on the part of a non-witness, in an exhibited message, that the claimant disclosed a photograph of Ms Cloke and her new partner to her former partner. There is no pleaded allegation that the claimant did so. Moreover, the allegation is not similar to the core allegations in this claim in that it does not involve an allegation of providing private information to journalists or paparazzi for personal gain. Having regard to the overriding objective, it is important to focus on the pleaded allegations and not to allow the issues to be expanded disproportionately by the admission of new hearsay allegations.

1. ii)

278-279: in these paragraphs the defendant refers to a message from Ms Kilner in which she said that information that she told the claimant, which not many people knew about, ended up in the press. There is no allegation that the claimant disclosed the (unidentified) information, only an inference that she was suspected of doing so; and there is no pleaded allegation in relation to this matter at all. The reasons given in respect of (i) above (save to the extent that the information in this case is said to have reached the press) apply equally to these paragraphs.

1. iii)

280-281: in these paragraphs the defendant refers to a message from Ms Cleverley that she had been told the claimant had “done it” to her. The defendant states her understanding that this was a reference to the claimant having leaked private information about Ms Cleverley to the press, but there are no details of what information Ms Cleverly was told the claimant had leaked, when or to whom. A reference is made in this paragraph to Ms Cleverley having been the subject of a Secret WAG article, but it is not alleged that that is what Ms Cleverley was referring to. Again, I consider that it is important to focus on the pleaded allegations and not to allow the issues to be expanded disproportionately by the admission of new hearsay allegations

1. iv)

282-284: these paragraphs refer to a public “spat” on Twitter between the claimant and Ms Lloyd. Although reference is made to two articles in The Sun, no allegation is made in these paragraphs that the claimant disclosed private information about Ms Lloyd to a newspaper. The allegation made is that the claimant made public on Twitter the essential content of a WhatsApp message that Ms Lloyd had (it is said jokingly) sent to the claimant. This is dissimilar to the core allegations in this case. Again, having regard to the overriding objective, I consider that these paragraphs should be removed.

1. v)

In paragraph 285 reference is made to other arguments between the claimant and Ms Lloyd about other matters. One of these matters is the obtaining of private medical information, a matter which is distinct from disclosure and a matter which the defendant’s solicitor previously said in evidence would not be pursued. The arguments are also said to have related to the claimant disclosing screengrabs of her conversations with Ms Lloyd to the press. There is no allegation (still less any pleaded allegation) that the claimant disclosed the private information which is referred to here in very broad terms. For the same reasons as I have given above, I consider these parts of this paragraph should be removed. Paragraph 285 also refers to their arguments about “the fact that Danielle was told by a journalist at The Mail that Becky is the Secret WAG”. This goes to a pleaded issue, namely the defendant’s allegation that the claimant is the (or a) source for the Secret WAG column. Although it is hearsay, the question of weight is not a matter for determination now. Accordingly, that part of paragraph 285 is not required to be removed.

1. 131. Paragraph 273 is merely an introductory paragraph to the section. Paragraphs 276-277 refer to a message from Ms Hart expressing the belief that the claimant was the source of an article about her in the Secret WAG column. This goes to a pleaded allegation in the case and, as I have said, the weight to be accorded to such a hearsay statement is a matter for trial. I reject the contention that these paragraphs should be struck out.

1. 132. Paragraphs 286-291 refer to a message from Ms Carragher which contained a screenshot of an email from Matt Wilkinson, a journalist from The Sun, to her husband’s agent. These paragraphs do not raise any new allegations of disclosure of private information about others. They relate to the disclosure of the defendant’s information from her Private Instagram Account. Although this is information the defendant only became aware of the day after her Post, it is relevant to her ongoing belief. I reject the contention that these paragraphs should be removed.

1. 133. Paragraphs 292-295 appear under the heading “reaction to the post – family/friends”. The defendant explains the strain on her relationships when people felt they were potentially suspected of being responsible for leaking information. The claimant objects these paragraphs are irrelevant. The defendant contends this forms an important part of the narrative, explaining the need to conduct the “Sting Operation”, as well as the broader interest in identifying the leak. At this stage, it cannot be said to be clear that this evidence will not, at trial, appear to be relevant or sufficiently helpful to make it right to allow the defendant to adduce it. Accordingly, I reject the objection to paragraphs 292-295.