Trial by jury: to be a rare exception
Posted on 05 September 2014 by Carter-Ruck
From the first ruling on mode of trial since the abolition of the right to jury trial in defamation cases, it is apparent that the court will only on rare occasions exercise its residual discretion.
In his judgment in the case of Tim Yeo MP V Times Newspapers Limited, in which Carter-Ruck acts for the Claimant, Warby J examined the constitutional history to the new legislation and ultimately dismissed the Defendant’s application for trial by jury. Times Newspapers had argued that, since the subject matter of the case involved issues of public interest concerning the reputation of a senior Member of Parliament and the newspaper’s freedom of expression, it should be heard with a jury.
s.11 Defamation Act 2013 amended s.69 Senior Courts Act 1981 by removing libel and slander from the causes of action listed in s 69(1) to be tried by a jury “unless the court is of the 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.” s.69(3) Senior Courts Act remains in force; it provides that any cause of action to be tried in the Queen’s Bench Division, other than those listed in s.69(1) “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.” The new law applies to defamation actions commenced after 1 January 2014.
Even before the amendment, the court’s discretion to order jury trial, for example in defamation cases which involved prolonged examination of documents, was rarely exercised. One such case was Rothermere v Times Newspapers  1 WLR 448, where Lord Denning said “Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and powerful on a matter of large public interest – and is then charged with libel – then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.” However, by the time of Aitken v Preston  EMLR 415 Lord Bingham, dismissing the Defendant’s appeal for jury trial, said “The emphasis now is against trial by juries and this should be taken into account by the court when exercising its discretion.”
In his judgment Warby J decided that principles identified in pre-amendment authorities can no longer hold sway. This he found to be the effect of “the unequivocal expression of Parliament’s intention to remove any right to trial by jury in defamation cases, leaving only a discretion to be exercised by a judge, with a presumption against jury trial.” Factors such as the prominence of the claimant or the public interest in the subject matter will now be of “no greater intrinsic weight in a defamation case than they would be in any other class of case that enjoys no right to trial by jury.” The true criterion will be whether, despite all the modern safeguards of judicial impartiality, there are in the particular case such grounds for concern that a judge might show “involuntary bias” towards one or other of the parties on grounds of their rank or status that “a judge might not appear to be as impartial as a jury.” Such cases will be extremely rare.
Warby J found the Defendant’s arguments as to the specific considerations in this case favouring trial by jury unpersuasive, particularly when viewed against three factors which strongly favour trial by judge alone: the advantage of a reasoned judgment, proportionality, and case management.
While this judgment will certainly not be the last on the subject, it does seem to pave the way for early rulings on meaning, fact and comment and thus to have important implications for the case management of defamation claims (see also RBOS Shareholders Action Group v News Group Newspapers Ltd  EWHC 130). It lends weight to those who would argue that an early determination on meaning not only helps to narrow the parties’ pleadings and thereby save considerable resources, but also allows the exercise to be carried out in isolation from irrelevant issues and evidence. It is equally clear that in future, it will only be in the most exceptional cases that the often critical determination of meaning will have to be held over to be decided by a jury at trial.