Last Friday, 28 May 2010, Mr Justice Tugendhat ordered that the trial in the case of Fiddes v Channel Four should be by judge alone.  The case concerns a documentary purporting to show members of Michael Jackson’s family moving to Devon and the claimant accuses the defendants of “faking” certain elements of the programme.  The trial is due to begin on 14 June 2010 and would have been the first libel jury trial since Desmond v Bower, which concluded on 22 July 2009.  

The judgment of Mr Justice Tugendhat is not yet available but we have been provided with a very full note by Mr Benjamin Pell for whose assistance we are grateful.  The following discussion of the judgment is based on that note.

The judge begins by looking at the statutory provision governing jury trial and the familiar case law.  In a libel action, there is a right to trial by jury unless the “proviso” applies – that is, unless the trial requires “prolonged examination of documents … which cannot conveniently be made with a jury” (Senior Courts Act 1981, s.69(1)).   If the trial does require such examination then the judge has a discretion to order trial by jury in any event (s.69(3)).

The claimant and the defendants, as might be expected, differed as to the number of documents which required examination.  The claimant had a “jury bundle” of 300 pages, the defendants four bundles totalling 1,250 pages.  In addition, there were 1 hour 20 minutes of “rushes” from the defendants’ filming and some hours of other footage.

The judge concluded that in relation to a small number of issues there was likely to be “prolonged examination of at least some documents“.   In relation to “convenience” he held that the trial by jury would inevitably be longer than trial by judge alone – the trial would not be beyond the jury but would be “substantially more difficult”.

The final and crucial issue was discretion.  The claimant made the point that when the issue is whether the viewing public has been deceived, the best way to deal with this was by asking the public itself in the form of jury.  However, on the other side of the scale Mr Justice Tugendhat took into account the “chilling effect on freedom of expression” of the increased costs of a jury trial.  He also considered the Human Rights Act and the importance attached to a reasoned judgment.  He concluded that

“During the hearing my mind has wavered … I have not found this an easy case but I have to come to a view.  I have come to the view that the interests of justice require that I … order this trial to be heard by judge alone”.

This is the latest in a series of successful applications to “remove the jury” in libel cases – often at a very late stage, brought by whichever party perceives there to be an advantage in a trial by judge alone.  This is often, though by no means, exclusively the defendant.  Recent examples of contested applications where the jury has been removed include Charman v Orion (17 June 2005);  Prince Radu of Hohenzollern v Houston [2007] EWHC 2328 (QB), Gentoo v Hanratty ([2008] EWHC 2328 (QB)) and Haji-Ioannou v Dixon (20 November 2009).

In virtually every modern case there are going to be substantial numbers of documents and some of these are going to have to be carefully examined by the jury.  Although this happens every day in criminal cases the position in civil law is strangely and mysteriously different.  The presence of a few hundred – often marginally relevant documents – is now regarded as sufficient to invoke the “proviso” to section 69(1).  A trial by jury will always be “less convenient” than by judge alone – it will inevitably take longer and be more expensive.   If when considering the “discretion” under section 69(3), the court adopts Mr Justice Tugendhat’s approach – taking into account the additional cost as a “chilling factor” and the importance of reasoned judgments- then future libel jury trials seem highly unlikely.

The traditional factors favouring jury trials – the importance of having representatives of “the public” assess meaning and damages – seem to have been wholly discounted in recent times.   The libel jury was means of public participation in the determination of whether a publication damaged someone’s reputation.  As Lord Atkin once said

“Trial by jury … is an essential principle of our law.  It has been the bulwark of liberty, the shield of the poor from oppression of the rich and powerful” (Ford v Blurton (1922) 38 TLR 801, 805)

Although the Coalition Agreement recently affirmed the importance of trial by jury, this apparently applies in criminal cases but not in relation to defamation.  The link between the two was emphasised by Lord Devlin who said that, when a man is on trial for his liberty,

predictability is quite unimportant. What then is wanted is a decision on the merits that will after the event satisfy the public that justice as the ordinary man understands it has been done. Likewise, when a man’s honour or reputation is at stake, he is more concerned to have a judgment that fits his merits” (Trial by Jury, pp.156-157)

It seems unfortunate that what has often been described as a “fundamental constitutional right” to trial by jury in libel cases is apparently being removed by a “sidewind” of statutory interpretation without any serious public debate.   It seems that Lord Lester’s proposed amendments to section 69 (see our post here) will not, after all, be needed.