Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 93
A cautionary tale on evidence
by Andrew Fremlin-Key, Partner & Millie Dickson, Trainee, in the Media and Reputation
team at Withers LLP.
‘satis昀椀ed that he [the Claimant] had lied… with the
consequence that his evidence, overall, is worthless’.
Introduction
The usual risks of defamation litigation are well
known: costs, adverse publicity, time-consuming
and the inherent unpredictability of trial. Claimants
accept these risks for the potential bene昀椀ts of
correcting the record, deterring future wrongdoing
and vindicating their reputation.
More notably, in the Vardy v Rooney case, the judge
found that ‘signi昀椀cant parts’ of Vardy’s evidence
was said to be ‘not credible’. Having been dubbed
‘Wagatha Christie’, this case garnered a lot of media
attention, where pieces of Vardy’s witness evidence
went viral. Despite the damaging judgment on
Vardy being delivered nearly four years ago, it is
hard to think of Vardy and not to think of the libel
case. [2022] EWHC 2017 (QB) [6]
But one risk is often overlooked: the danger of a
judgment publicly branding a party (or witness) as
dishonest or unreliable. For many Claimants, this
can be more damaging long-term than losing the
case itself. A 昀椀nding that a litigant has lied or given
unreliable evidence can follow them for years.
Hay v Cresswell was a more extreme example which
involved a libel claim brought against an individual
who had made allegations of sexual assault against
the Claimant. Not only was the Claimant’s case
unsuccessful, but the 昀椀ndings included his evidence
being ‘unsatisfactory’ and ‘less than credible’. Worse
still, the judge concluded ‘In light of the cumulative
e昀昀ect of these concerns I am unable to attach
signi昀椀cant weight to the Claimant’s denial that he
was the perpetrator of the sexual assault and indeed
the unsatisfactory evidence that I have highlighted
a昀昀ords further support for the contrary proposition.
[…] I am satis昀椀ed that she [the Defendant] has
established on a balance of probabilities that she was
subjected to a violent sexual assault by the Claimant
in the early hours’. This is despite the fact that no
police action was taken at the time it was reported –
the Claimant was never arrested – let alone charged
or convicted. Nevertheless, judges appear to be
increasingly willing to make such 昀椀ndings if the
evidence permits them to do so. [2023]EWHC 882
(KB) [193, 197]
The August 2025 judgment in Noel Clarke v
Guardian News and Media Ltd illustrates some of
these risks starkly. Clarke brought a £70 million
libel claim over articles alleging sexual misconduct.
Despite his repeated denials, the Court found
some of the allegations substantially true and the
reporting in the public interest.
More damaging still was the judge found he was ‘not
a credible or reliable witness’, that he had ‘lied’ to
the court, and that he only admitted matters forced
upon him by documents he had ‘carefully studied’
– and then only to the minimum degree possible.
Defamation proceedings can be appropriately
brought to protect and restore reputation. However,
if ill-advised, they can lead to a judgment that
highlights many of the concerns which the Claimant
sought to dispel by bringing the claim.
Unreliable witnesses: a recurring trend
This is not the 昀椀rst time in recent years where a
Claimant has found themselves with unhelpful
昀椀ndings in a Judgment on top of losing the case.
In Hegab v Spectator (1828) Ltd1, the judge was
EXPERT WITNESS JOURNAL
There may also be cases where the distinction
between unreliable and dishonest evidence is
key. For example, in the case of Brint v Barking,
Havering and Redbridge University Hospitals NHS
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