Were any pre-trial evidential rulings made that narrowed the scope of witness testimony in Hijazi v Yaxley-Lennon?
Executive summary
1. Narrowing by exclusion and caution: hearsay and covert recordings were downgraded
The High Court made clear evidential rulings that narrowed the effective scope of witness-based proof by treating hearsay and covertly recorded interviews with caution and finding them of limited weight where they could not be tested in cross‑examination [1] [2]. Nicklin J expressly criticised “selective snippets of hearsay” and “cherry‑picked” recordings as an unsatisfactory foundation to invite findings of fact, signalling that the court would not permit untested second‑hand material to stand for direct witness proof [2].
2. Limited permission to amend: more incidents allowed but with constrained effect
The defendant was granted permission to amend his defence to rely on additional alleged incidents because, if proved, they might show a propensity relevant to his truth defence — but the court made clear those incidents would not by themselves establish the substantial truth of the central imputations [3] [2]. That procedural allowance broadened the factual canvas the defendant could try to prove, yet the judgment constrained the evidential effect the new material could have, effectively narrowing the route by which witness testimony on peripheral incidents could support the core allegations [3].
3. Cross‑examination and the court’s emphasis on testing evidence
The judgment emphasised the necessity of testing contested accounts in oral evidence; several of the defendant’s live witnesses were disbelieved after cross‑examination and contemporaneous documents undermined their accounts [2] [4]. The court’s reliance on the trial process to expose weaknesses meant that covert recordings and third‑party hearsay, which could not be properly cross‑examined, were given far less traction — a practical evidential narrowing even where such material was admitted [1] [5].
4. Rejection of expanded defences and limits on late requests
The judge refused the defendant’s application for permission to add a public‑interest defence under section 4 of the Defamation Act 2013, further restricting the legal avenues by which witness testimony and ancillary material could be marshalled in justification [6]. Separately, the court warned that late procedural requests are likely to be refused because they disrupt court resources — a direction that curtailed the defendant’s ability to introduce or reframe witness evidence at advanced stages [7].
5. The defendant’s position and the court’s response
The defendant maintained that covert recordings represented “uncensored” truth and relied on a small group of school‑age witnesses [5]. The judgment records the court’s scepticism: none of those witnesses’ evidence was found reliably probative, some accounts were judged to be dishonest or embellished, and one witness was found to have given perjured testimony [4] [8]. That assessment demonstrates how judicial rulings on admissibility, weight and the need for cross‑examination narrowed the operational scope of what witness testimony could achieve.
6. Procedural follow‑on: enforcement and contempt directions do not expand testimony
Subsequent court activity — including contempt proceedings and contested service directions in 2024 — concerned compliance and service rather than reopening the evidential scope of the original defamation trial, and the court proceeded with directions hearings and substitutional service where necessary [7] [9] [10]. Those orders reinforced that procedural channels, not re‑admission of new testimonial material, were the means used post‑trial.
Conclusion: measured narrowing rather than blanket exclusion
In sum, the court made specific pre‑trial and trial evidential rulings that narrowed how the defendant could use witness testimony: hearsay and covert recordings were admissible only with severe reservations and limited weight, amendments to pleadings were permitted but their evidential reach curtailed, and the judge insisted on the primacy of tested, live evidence — effectively narrowing but not wholly excluding the defendant’s ability to rely on witness accounts [1] [3] [2]. Alternate perspectives from the defendant — that covert recordings were candid and probative — were heard but explicitly rejected by the court given the lack of opportunity for proper testing and the finding that several witnesses were unreliable [5] [4].