In defamation actions there is a statutory presumption that there will be a jury trial, rather than a trial by judge alone. This presumption is established by Section 69(1) of the Senior Courts Act 1981, which states that:

"Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue - (a) a charge of fraud against that party; or (b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or (c) any question or issue of a kind prescribed for the purposes of this paragraph, the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury."

Section 69(2) provides that an application under Section 69(1) for a jury trial "must be made not later than such time before the trial as may be prescribed".

In practice, the courts have been keen to avoid juries in defamation cases. As a result, it has been relatively common for the court to direct trial by judge alone. Many cases now involve a large number of documents, in particular emails, making them unsuitable for determination by a jury. However, for simple cases, juries have been the norm.

This position has been changed by the use of Part 26.11 of the Civil Procedure Rules (CPR). Although this rule has existed for some time, it has only recently come to the attention of defamation practitioners and the courts. It provides that an application for a claim to be tried with a jury must be made within 28 days of service of the defence.

The 28-day period is significant. In most civil litigation the pleading stage of the case ends with service of the defence. By then, the parties will know the issues in dispute and can decide how long the trial will be and how many witnesses will be involved. That is not the position in defamation claims in which a defendant has pleaded a defence of truth. The rules require the claimant in truth cases to serve a reply, specifically admitting or denying each allegation set out in the defence.(1) Until this reply has been served, the parties do not know the issues of fact that will need to be decided at trial, making it difficult to reach a meaningful view on the mode of trial.

If a party applies for a jury trial outside of the 28-day period specified in CPR 26.11, the presumption established by Section 69(1) does not apply. Instead, the position is governed by Section 69(3), which states that:

"An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury."

In other words, the presumption is reversed. This principle has been considered in two recent cases.

In Cook v Telegraph Media Group Ltd it was stated that:

"The implications of [CPR 26.11] for the exercise of the court's discretion under section 69(3) may not hitherto have been fully appreciated. The implication is that, once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves."(3)

The Court of Appeal has now given its tacit approval to the approach in Thornton v Telegraph Media Group Limited.(4) Lord Justice Carnwath stated that:

"We have not been asked to review the reasoning in Cook and we must proceed on the basis that it is correct. The practical effect is that, where a party seeking jury trial in circumstances where that is permitted by s.69(1)(b), which includes libel, fails to make the application within the period prescribed, which is 28 days, then the right which it could be said that s.69(1) confers goes and the matter then becomes in the discretion of the judge.

This may either be because it falls under s.69(3), where it comes within the general provision for judge trial unless the court in its discretion orders a jury trial, or alternatively, on an application to extend time under Part 3.1(2)(a), where the matter would be at large in the judge's discretion."

In Thornton, although no application had been made within the timeframe specified in CPR 26.11, the parties had agreed to a jury trial in approved directions. The defendant then sought to vary this for a trial by judge alone. The judge refused to vary the order on the basis that there should be a degree of finality about such matters. The Court of Appeal stated that there was discretion as to whether to order a jury trial, and that the judge should have considered the issue more broadly than he did. In the absence of a particular reason why trial by judge alone would be inappropriate or why a late change would prejudice a party, the matter should be remitted to the judge for reconsideration. Lord Justice Leveson remarked that "the sands of time are running out for a jury trial in civil matters".

The position may change again if the government's draft Defamation Bill is passed. It would remove libel and slander cases from Section 69(1) altogether, so that there would never be a presumption of trial by jury. If passed, the court would retain the power to order a jury trial in a defamation case, just as it can theoretically order a jury trial for any type of civil claim. However, the reality is that the passage of the bill would mean the end of jury trials in defamation cases.

For further information on this topic please contact Jaron Lewis at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (jaron.lewis@rpc.co.uk).

Endnotes

(1) CPR 53 PD 2.8.

(2) [2011] EWHC 763 (QB).

(3) Tugendhat J.

(4) [2011] EWCA Civ 748.

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