The end of jury trials in libel claims?

The decision in Tim Yeo MP v Times Newspapers [2014] EWHC 2853 (QB) is the first to engage section 11 of the Defamation Act 2013, specifically that a trial is to be ‘without a jury unless the court orders otherwise’. Mr Justice Warby refused an application made by the Defendant, The Times Newspapers to proceed with trial by jury. This has raised the question as to when (or even if) a case is likely to be tried by jury under the new law.

Pre-existing law retained the right to a jury trial in defamation cases. Before the Defamation Act came into force, an application had to be made to the court within 28 days from service of the defence. There was a presumption that the application would succeed, save in certain specified circumstances left to the discretion of the court (for example if the case was likely to require the extensive examination of complex documents). However, in Armstrong v Times Newspaper [2006] EWCA Civ 519 the Court of Appeal noted that “the discretion is now very rarely exercised.” The Defamation Act 2013 reversed the presumption of trial by jury in libel cases.

The purpose of section 11 as explained by Master of the Rolls, Lord Dyson in his statement regarding defamation cases early this year is to save money and achieve a speedier resolution.

Section 11 seemingly still allows the court to use its discretion in deciding trial by jury, but as of yet there are no definitive guidelines which would prompt the use of this discretion. During the Second Reading of the Bill in the House of Lords, Lord Browne of Ladyton requested “detailed guidance relating to the criteria for the Judge should be ordered” (Hansard, HC Deb, 12 June, Col 186). During further debates, it was suggested that the Bill should be amended to allow courts to order trial by jury, “in a case involving a senior figure in public life and when that person’s credibility is at stake.” Lord Browne’s suggestion that there be guidance on the matter was a helpful one, but unfortunately it has not yet been adopted.

Yeo attempts to offer some guidance as to what the court will consider when deciding trial by jury (para 32 -71). Initially, the court considered pre-2013 case law, in Aitken v Preston [1997] EWCA Civ 1710, Lord Bingham set out a list of factors that should be taken into consideration when deciding whether a case should be tried by jury, these include; “a) that the emphasis is now against trial by jury and this should be taken into account; b) whether the case involves prominent figures in public life and questions of great national interest; c) the fact that the case involves issues of credibility, and that a party’s honour and integrity are under attack (this is not an overriding factor); and d) that an advantage of a reasoned judgment is a factor properly to be taken into account.”

Referring to the factors in Aitken, Gavin Millar QC for The Times argued that a trial by jury should be ordered as the case involved an MP and that it was in the public interest to do so. Mr Nicklin argued that the guidance in cases predating the Act could no longer be considered. Mr Justice Walby took the view that it was in the public interest to have the trial by Judge alone, holding that the Defendant does not “identify any skills, knowledge, aptitudes or other attributes which are likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues that arise and may need to be tried.” He goes on to say that “there are real risks of a jury verdict being unclear or misunderstood or both.” He remarked that the greater the public interest, the greater the need for trial without a jury as this would provide for a reasoned judgment.

So the question remains, if even a case involving an MP, who some may say constitutes a ‘prominent figure in public life’ is saved from a trial by jury, who and to what seniority must the parties be in the eyes of the court to be awarded a trial by jury. If the rationale behind section 11 truly is to save time and money, a jury could never achieve this therefore, it may be possible that the wording in section 11 “unless the court orders otherwise” may exist to maintain the principle of public policy but be, nonetheless, redundant.