Libel Law: the declining role of Juries

 

The right to trial by jury in actions for libel was considered so fundamental by the government, back in 1990, that when the Neill Committee was asked to propose reforms to the practice and procedure for defamation, trial by jury was specifically excluded from its terms of reference because it was so intimately connected with fundamental questions of public policy. Whilst section 8 of the Courts and Legal Services Act 1990 and Order 59 rule 11(4) of the Court Rules allowed the Court of Appeal to substitute a proper sum in place of an excessive or inadequate jury award, several judgments of the Court of Appeal affirmed the importance of the so-called "constitutional right" to trial by jury in libel actions. However, since around 1996 and the passing of the Defamation Act that year the role of juries and the respect paid to them by the judiciary has, it seems to me, been dramatically eroded, further, I would suggest, than Parliament ever intended when passing that Act.

The Position 1990-1996
In 1990 the Court of Appeal had to consider the astonishingly high award of £600,000 in libel damages to Sonia Sutcliffe -v- Private Eye. Although the Court of Appeal set aside the award the court was at pains to underline the importance of the right to trial by jury. Lord Justice Nourse noted that with the passing of the Libel Act 1792 (our constitutional right to trial by jury) the freedom of the press was secured against the possibility of judges being disposed in favour of the Crown. He noted that the justification for the right to trial by jury "is as valid as it ever was" and "The question of whether someone's reputation has or has not been falsely discredited ought to be tried by other ordinary men and women and … it is the jury who are the people of England". He also added "When one turns to the matter of damages the primacy of the jury is seen to be even more firmly established. I do not know that it was ever doubted that the amount of the damages should be left to the jury". He also cited a case from 1934 (Youssoupoff -v- M-G-N) with approval:- "The constitution has thought, and I think there is great advantage in it, that the damages to be paid by a person who says false things about his neighbour are best decided by a jury representing the public, who may state the view of the public as to the action of the man who makes false statements about his neighbour, the plaintiff".

In 1995 Lord Justice Nourse, in Kirby-Harris -v- Baxter stated, with regard to determining malice, "On the assumption that there is evidence to go to them, the question of malice in an action for defamation is quintessentially one for the jury. Each party having a constitutional right to the decision of questions of fact by a jury, a right recognised and reinforced by Fox's Libel Act 1792, nobody could suggest that such a question should be entrusted to a judge except … by … a provision which is agreed to have no application to this case".

In 1996 Lord Justice Beldam in Kiam -v- Neil (No.2) said "Whilst it is tempting to think that the greater the guidance given by judges, the more rational the jury's conclusion is likely to be, it seems to me that if the failure of the jury to keep its award within bounds indicated by a judge gives rise merely to the possibility that their judgment is to be preferred to that of the judge, the court may appear to preserve only the semblance of a right which Parliament has repeatedly affirmed".

He continued "The right to protection of the law against attacks on honour and reputation is as important in a democratic society as the right to freedom of the press. History discloses examples which shows that undermining the reputation of a political opponent of an arbitrary, domineering or oppressive regime can be one of the first weapons deployed by the despot. Just as the jury became the bastion of freedom of expression, so it seems to me an appropriate tribunal to decide what is necessary in a democratic society. The value of a free press in a democratic society depends upon the credibility the public give to its reports".

December 1995 - The Present Day
Lord Bingham, currently our senior Law Lord, appears to have a very different view about juries.

In Elton John -v- MGN Limited, noting the lack of guidance given by judges to juries on libel damages, he said "It is not altogether surprising that juries lack an instinctive sense of where to pitch their awards". He described juries as in "the position of sheep loosed on an unfenced common, with no shepherd".

In 1997 Lord Bingham denied the Guardian their "right" to trial by jury in the action brought by Jonathan Aitken. In preferring trial by judge alone he said "The fundamental issue in this action is whether the defendants' allegations are shown to be true. It is very important in the interests of both parties and the public at large that an answer is given which is, and is convincingly demonstrated to be, unassailably reliable". He later added "A general verdict of a jury will leave room for doubt and continuing debate whether, on important and properly contested issues, the plaintiff or the defendants had been vindicated. A reasoned judgment, giving the judge's conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged".

In 2002 Lord Bingham again condemned the verdict of the jury in a libel action in Grobbelaar -v- News Group Newspapers where the court reduced the damages from £85,000 to £1. Lord Bingham said that the award was "perhaps understandable" but it "could not be supported". This decision is all the more remarkable given that on this occasion, the "sheep" had a shepherd, namely Mr Justice Gray, and their award was within the bracket of damages he suggested to them of up to £150,000.

Other developments

1. Summary judgment
A party can now obtain summary judgment under the provisions of the 1996 Defamation Act if the court is of the view that the statutory cap on damages, £10,000, will adequately compensate him for the wrong he has suffered. In debating this section of the Defamation Act in Parliament, Lord Hoffman, whose brainchild this was, said if the defendant was seeking to rely on the summary procedure and have the action dismissed as a trivial one, the judge would have to be satisfied that, come what may, the plaintiff would not be able to recover more than £10,000.

In a remarkable ruling, Mr Justice Morland decided in Mawdsley v the Guardian that summary judgment was appropriate despite the fact that in his considered view £30,000 would be the adequate "minimum award" at trial. His suggested minimum figure for damages during the course of argument was £50,000 (which he later thought was far too high). As judges and juries take a very different view of damages in defamation proceedings, it is quite conceivable that a jury could have awarded upwards of £75,000 but, despite the gravity of the libel, Mr Mawdsley was denied his right to a jury trial.

2. The offer of amends
The Defamation Act also introduced the offer of amends procedure. The idea behind this was that if a newspaper held up its hands to an honest mistake at the beginning of a complaint, it could make an "offer of amends" and leave the level of damages to be decided by a judge (who would probably award much less than sheep whether fenced or unfenced). The safeguard imposed by the Act however was that the offer of amends defence could be defeated if it was rejected and the claimant could prove to the satisfaction of the jury that the newspaper knew or had "reason to believe" that the article was both false and defamatory of the claimant. You would think that the question of whether the newspaper knew or had reason to believe that the article was false and defamatory was a fairly straightforward question. However, in Milne v Express Newspapers, Mr Justice Eady ruled that "reason to believe" was to be equated with bad faith or malice (of which there was no evidence) and effectively put an end to the claimant's hope of placing his case before a jury. As the textbook Gatley points out, if an offer of amends defence is to succeed in such a scenario, it is a recipe for rewarding irresponsibility on the part of journalists. Its prediction that "There will be a jury on this issue" will only prove correct when a Judge decides there is an "issue" to go to the Jury.

3. Malice
It was decided in Kirby Harris that the issue of "malice" was best left to a Jury to decide. But these days, the courts have also found a way round the inconvenience of a jury verdict on this point as whether a defence of responsible journalism is made out is also a matter for a judge, not a jury. If a journalist is to be found responsible, it is inconceivable that he could at the same time be found to be malicious. As the Court of Appeal readily admitted in Loutchansky v Times Newspapers Limited (2) a decision by the judge that a journalist was responsible "effectively pre-empts the jury's role in deciding malice".

Damages
If a claimant can successfully oppose summary judgment (on the ground that the libel is extremely serious), if he can successfully defeat an offer of amends defence on the grounds that the journalist acted in bad faith, if he can get a ruling that the defence of responsible journalism is not made out then, at last, he might be successful in obtaining a jury verdict. But no British person has ever had his award of damages by a jury upheld by the Court of Appeal since the law was changed back in 1990 (see above). Leaving aside Victor Kiam's two triumphs in the Court of Appeal, each and every jury award that has gone to them has been substantially reduced by the Court of Appeal.

Jury questions
It is not just claimants who complain about being deprived of their so called constitutional right. The Times Newspaper complained bitterly after a ruling by Mr Justice Gray in Loutchansky that, notwithstanding that the jury found in their favour on 11 out of the 15 questions put to them by the judge, and were unable to answer two of them, the judge still found that the articles did not amount to responsible journalism.

Conclusion
In commenting on the law of defamation in the 17th century, Peter Carter-Ruck in his book on libel and slander said it was "interesting to observe the methods employed by the judges in their efforts to discourage actions for defamation and the effect which these methods had upon the law. Strained constructions were put on words to avoid giving them a defamatory meaning. Absurd views were taken as to what damage could be the natural and probable consequence of the alleged defamation".

It remains to be seen with the demise to right by trial by jury in libel actions, whether these words can equally be attributed to the decisions of judges in the 21st century. Must we really prefer the views of judges (who tell us that first and second time burglars should no longer be imprisoned), over the common sense of juries? Do we want trial by Woolf instead of sheep? I think not.

Nigel Tait
Carter-Ruck

(The firm acted for Mrs Kirby-Harris, Victor Kiam and James Mawdsley in the cases referred to above)