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UK: Defamation case provides 'trial run' of the future position on trial by jury

05 August 2013
A recent defamation decision, Christopher McGrath v Independent Print Limited  [2013] EWCH 2202 (QB) provides some insight into the future availability of jury trials once the Defamation Act 2013 removes the presumption in favour of trial by jury in defamation cases.

Currently s69(1)b of the Senior Courts Act 1981, states that libel or slander claims "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 11 of the Defamation Act 2013, which is not yet in force, will remove this presumption in respect of libel and slander claims, meaning that such claims will fall within the presumption against a jury trial under s69(3) of the SCA'81.  This provides that, "An action to be tried in the Queen’s Bench Division which does not by virtue of subsection (1) [ie s69(1)b] 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".

The Defamation Act 2013 does not provide any further clarification on when the court will exercise its discretion to grant jury trials in defamation actions under s69(3), creating an area of uncertainty given that the court's discretion regarding jury trials for defamation actions is currently decided under s69(1)b, with s69(3) applying only once the court has already decided that the volume of documents etc means that the case is unsuitable for a jury.

However, this case presents an interesting example of a defamation jury request being determined under the general discretion provided by s69(3), with its presumption against trial by jury. This situation arose because the claimant failed to make their application for a trial by jury within the time limits prescribed by CPR 26.11 (28 days following the service of the defence). Once the claimant then failed to persuade the judge to extend the necessary time limit under the discretion in CPR 3.1(2), the general discretion under s69(3) was all that remained available to him. Thus, this case provides an interesting 'trial run' of the position as it will be after the Defamation Act 2013 removes the current presumption in s69(1)b.

The facts of the case were somewhat unusual; in addition to the missed deadline described above, this case was also curious in being a 'defamation upon a defamation', with the claimant suing The Independent for its allegedly libellous reporting of his previous unsuccessful attempt to sue over comments made in an online argument, conducted in part via hostile Amazon reviews (McGrath v Dawkins [2012] EWHC B3). Furthermore, the claimant was a litigant in person, which he argued should be considered in relation to his failure to meet the CPR26.11 deadline, and the court's subsequent exercise of its discretion under both CPR 3.1(2) and s69 SCA'81. The quirk here was that although Davies J allowed him "a degree of latitude" as a litigant in person, this latitude was of limited effect given the claimant's previous experience of bringing a libel action and his "demonstrable knowledge of the relevant provisions".

Davies J stressed the importance of the Overriding Objective in any exercise of discretion. In relation to the exercise of discretion under s69(3) SCA '81, the judge referred to Fiddes v Channel 4 Television Corp [2010] EWCA Civ 730, particularly at paragraph 15, where that case drew heavily on paragraphs 421-422 of Bingham CJ's judgement in Aitken v Preston, [1997] E.M.L.R. 415. As well as providing clarification on the exception for excessive documentation found in s69(1)b, this case-law referred to four factors which have general application to the ultimate exercise of discretion regarding jury trials. These are:

  • that the emphasis is now against trial by juries (which is already built into s69(3));
  • that it is an important consideration in favour of a jury where the case involves prominent figures in public life or issues of national importance;
  • that where the case involves questions of personal credibility and integrity this should be taken into account, without being an overriding factor, in favour of a jury trial; and
  • that the advantage of a reasoned judgement should be properly taken into account.

In addition to (unsuccessfully) arguing that his status as a litigant in person and his conduct to date should lead the court to allow him an extension of time in which to request trial by jury and thus fall within the presumption in s69(1)b, the claimant argued that the court's general discretion should favour a trial by jury. This was, first, because the alleged defamation (suggesting that his first libel suit had been on the basis of a book review) had, he claimed, "opened him to opprobrium because he was perceived as suing upon an issue of free speech" and, second, because he felt the issue was of national importance because The Independent was, he claimed, using his case to support a political cause; the passage of the Defamation Act 2013 through Parliament, as it happened. He also did not accept that the case would require the scrutiny of voluminous documentation.

In exercising her discretion against a trial by jury, Davies J noted that "the disposition of the courts today is against trial by jury". She continued, citing the "real case management advantages" trial by judge affords, as evidenced by the fact that on this instance a ruling that the matter was to be decided by judge alone would allow the court immediately to hear an application upon meaning that the defendants had brought. Davies J also accepted the defendants' submission that considerable volumes of documentation would need to be produced and disagreed with the claimant that this was a matter of important national interest.

Having rejected the claimant's request for a jury trial, the court then addressed the defendants' application for a ruling on the meaning of the allegedly defamatory statements. The claimant argued that the article falsely suggested he had sued over a book review, which behaviour he said, "runs counter to established norms of free speech and which … if it were true would rightly attract opprobrium in a democratic society". The court rejected this meaning, on the basis that the content of the article clarified any misunderstanding that could be derived from the headline. The meaning claimed by the claimant was "not only too narrow.. it is inaccurate". Irrespective of this finding, the court also concluded that the claimant was "pitching his case too high"; the claimant's submission did not constitute an actionable defamatory claim, as although certain members of society may view with disfavour an author suing over a book review, society in general would not share this view.

In all, this case provides an indication of the discretionary points that could be used to argue in favour of a trial by jury once the presumption in favour of jury trials is removed by s11 of the Defamation Act 2013. However, the weighing of these factors in this case, albeit that the claimant's arguments may not have been particularly strong, indicates that litigants will face a stiff challenge in obtaining a jury trial in future defamation actions.

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