Duke of Sussex court case: key witness statement false

[bluegreygreen]

I looked for another thread on this but didn't see one.

The story is about the case Prince Harry (and 6 others) are bringing against the Daily Mail (Associated Newspapers) for phone hacking. Back in July the claimants were told to reveal any payments that were made to witnesses in exchange for evidence; this seems more serious.

From what I can gather the main witness (Gavin Burrows) in the case was employed by the claimants' team over a couple of years to help research into the phone hacking by different organisations and to track down relevant people. He says he was asked on several occasions if he had worked for the Daily Mail and always denied it, and the first he knew of the current case was when he heard in 2023 that Baroness Lawrence had brought it based on his evidence.

Apparently Burrows wrote a statement at that time (2023) denying the claims and has now written a more detailed statement also denying the claims.

The claimants now don't want to call him as a witness (unsurprisingly) but do want to rely on (some of) his evidence as 'hearsay evidence'.
They also don't want Associated Newspapers to be allowed to call him as a witness.

Telegraph archive link
https://archive.is/YAjNq

I haven't heard before of 'hearsay evidence' being used like this - does anyone know the rules? How can it be tested?

There was a story in the Times this morning about this. Very peculiar that the witness the claimants are relying on now says his statement was forged. This could be very bad for the claimants.

Very strange.

He says he first heard of the case in 2023, and wrote a statement then denying the claims. If so, why are they still trying to depend on the same claims 2 years later?

Here you go, @bluegreygreen - Indianrollerbird was kind enough to explain this to me on another thread and I've C&P'd it below ...

Hearsay evidence is admissible in court. You need to serve a Hearsay Notice to the other party, setting out which bits of the evidence you are relying on is hearsay, and why the original witness can't be called to give direct evidence. The other party then has the opportunity to apply to the court for an order that the person who originally gave the evidence appears for cross examination.
That's what's being fought over currently. Harry & Co want to rely on the hearsay evidence of Mr Burrows, contained in his witness statement of 2021, and have presumably served a hearsay notice. They have to rely on hearsay, because in 2023, Burrows served a second witness statement saying his 2021 statement was untrue and he hadn't signed it, and he won't give evidence on their behalf directly. The DM want to cross examine Burrows and have applied to the court to do this.
However, Shereborne for the claimants wants the DM's application for cross examination to be delayed until they (the DM) give disclosure about payments they made to Burrows (allegedly) to cover his legal fees. Those payments are, on the face of it, for legal fees that the DM paid on behalf of Burrows, to allow him to engage an independent solicitor, and to make a further statement (dated 2025) refuting the original 2021 statement where he admitted unlawful information gathering on behalf of the DM. Sherborne obviously thinks the DM paid for more than just legal fees.
I remember it all blew up with this witness in 2023, when he first withdrew his 2021 statement. I can't believe it's still unresolved. Most of the claimants are relying on Burrows' 2021 statement (admitting UIG) which he's been saying is false for 2 years. What a clusterfuck!

Presumably, the suspicion is that the newspaper group paid Burrows to change his story.

Wow, this is a complicated beast for our favourite dragon-slayer!

Question for the legal eagles as I am finding it a bit hard to follow the technicalities.

I thought hearsay was a third party reporting a conversation between two other people.

If the third party says that they never said the hearsay and that their signature was forged so the hearsay statement was false...then where is the hearsay to introduce as evidence because surely it no longer exists?

Thank you @Puzzledandpissedoff and @indianrollerbird.

You need to serve a Hearsay Notice to the other party, setting out which bits of the evidence you are relying on is hearsay, and why the original witness can't be called to give direct evidence.

'Because he says the original statement was false' doesn't sound like a very good reason to have to give in court.

It doesn't feel like the evidence can be very reliable if the person who apparently gave it is now denying it.

Yes, that bit is confusing me too.

Hearsay in its simplest terms is putting evidence before the court that basically amounts to submitting: “XYZ says this, and it is true” - but XYZ is not themselves appearing in court to give their own evidence of what they said/heard/did. The latter (people appearing in person to give direct testimony, and be tested by cross-examination) is considered to be the best evidence.

Hearsay used to be inadmissable evidence, but the rules on this have relaxed considerably over the years, and now in civil claims (as Harry’s claim is) the evidence can generally be put before the court and it is the for the judge to assess its probative value.

Here, Mr Burrows has purportedly provided a witness statement in the past, but is now declining to attend court himself to present it and be cross-examined about it. He’s also said a lot of things outside of the court room that undermine the statement’s truth. Harry’s legal team still want to rely on the witness statement, but if Mr Burrows himself isn’t in court, it is now considered hearsay (Harry’s team would be saying “Mr Burrows said this, and it’s true”).

In short, this is a mess. It’s not a completely uncommon mess - all sorts of dodgy people get involved in litigation, after all. I had one case where the witness did come to the trial, only to say that his witness statement was completely made up and he had only agreed to sign it in order to put pressure on the other side to settle. He was fuming that despite this it had been presented to the court as evidence! That was fun to watch (luckily he was not my side’s witness 😀 ).

So interesting, @Serenster, thank you for sharing your knowledge and experience.

Thank you @Serenster.

So in civil cases, hearsay evidence can be put before the court, and the judge assesses how much weight to give it?

In this case there are supposedly 3 statements from Mr Burrows
2021 - which he now says is 'completely false'
2023 - apparently originally sent to the Daily Mail when he heard about the case, refuting the claims in the first statement
2025 - apparently written with independent lawyers

At the very least this would suggest the judge might not give very much weight to the hearsay evidence, unless Harry's team also have other evidence to back up the original statement?

Your case sounds fun - did he think they would just discard his statement when the opponent didn't settle?

If Mr. Burrows claims that the 2021 statement was a forgery, then surely the court would need to determine if the first statement was a forgery before permitting it to be introduced as hearsay evidence.

How can Harry’s team say “Mr Burrows said this, and it’s true” if indeed it is proven that the 2021 statement had a forged signature?

Wouldn't this open the courts to all sorts of shenanigans where people can simply forge statements and then say...oh well it is hearsay evidence...include it anyway?

What a mess!!!

So in civil cases, hearsay evidence can be put before the court, and the judge assesses how much weight to give it?

Yes, that’s exactly it. Given what’s gone on with Mr Burrows I am somewhat surprised that Harry’s team think it’s worthwhile even trying to now rely on the initial witness statement - apart from his completely damaged credibility, as officers of the Court the lawyers also have a duty not to put evidence before the Court that they suspect to be false, and you don’t take that risk in a hurry.

And yes, in my case the witness in question thought his witness statement would not be used for anything other than trying o settle the case - I think he eve said that had been promised to him at the time he was asked to sign it. Needless to say, the judge was strongly critical of both him and those who had presented the false witness statement!

Was this burrows chap a witness for Harry or the paper? I’m a bit confused 🙈

I haven't read the judgement yet (have downloaded it) but the Telegraph report says he was originally witness for the claimant (Harry's team; 2021 statement).

He says he had done some work for them (in general; information and finding people - there were several cases going on) but he didn't know anything about this case until he saw it reported in 2023 as being based on his statement. He says he had always denied working for the DM and the statement is false.

He then in 2023 wrote to the DM legal team with a statement refuting the statement Harry's team had.

He has now written a third (more detailed) statement with independent lawyers.

He was a (key) witness for Harry’s side. His witness statement (which he now says was neither drafted nor signed by him, and contains a number of falsehoods) was relied on as evidence that the Mail and Mail on Sunday engaged him to gather evidence illegally. He says he told the legal team repeatedly that he had never worked for these papers.

This is all set out in his new witness statement. The judge ruled that that should be made public yesterday, after the Times newspaper got wind of the scrap and successfully applied to court for the second witness statement to be released to the press.

As for what happens next - we wait and see…

Yes but according to burrows comments it also seems that Sherbornes associates payed him for information and then said it was a joke!!!

Given what’s gone on with Mr Burrows I am somewhat surprised that Harry’s team think it’s worthwhile even trying to now rely on the initial witness statement - apart from his completely damaged credibility, as officers of the Court the lawyers also have a duty not to put evidence before the Court that they suspect to be false, and you don’t take that risk in a hurry

As usual that makes perfect sense, @Serenster, but if it's hard enough for everyday folk to understand I fully expect it to be completely beyond Harry ... and that if the judge doesn't allow the evidence he'll insist that's a stitch up too

Ahh thank you! All seems very murky.

I'm learning a lot about civil law but from the outside this seems like it's shaping up to be another Sherborne Shitshow.

Maybe this is why Harry was at Kris Jenner's birthday bash - he's been watching All's Fair on Hulu and wanted some legal advice from Kim K. i know KK has just failed Cali bar exam and also know it apparently is a hard exam to pass and not passing on 1st go doesn't imply anything about her future potential as a lawyer

All I know about US law school I learnt (?) on How To Get Away With A Murder so i learnt nothing really

if a pedant could help me if its learnt or learned…

I believe that in British English either is ok. In American English you’d only see learned.

Thank you

Or having a year of learns.