We reported on Monday on the decision of Mr Justice Tugendhat (pictured right) to order trial by judge alone in the case of Fiddes v Channel Four – two weeks and three days before the trial was due to start. The story has been picked up on the Media Pal@LSE blog and by the Press Association’s “Media Lawyer” subscription service. We now understand that the claimant has today lodged an urgent appeal which is likely to be heard by the Court of Appeal, on Tuesday or Wednesday next week. The claimant has, of course, already made one unsuccessful appeal to the Court of Appeal (on a specific disclosure issue  EWCA Civ 516).
This will be the only the second case in which the Court of Appeal has considered the question of mode of trial in a libel case since 2002. The case that year – Gregson v Channel Four ( EWCA Civ 941) – involved the same defendant but, on that occasion, putting the arguments in favour of trial by jury. In that case the journalists wanted their “good name and integrity” to be vindicated by a jury (in Fiddes they preferred a reasoned judgment). In Gregson the Court dismissed the defendant’s appeal against Morland J’s ruling that the issue of meaning should be tried by a judge and jury but that qualified privilege should be tried by a judge alone.
The leading case remains Aitken v Preston ( EWCA Civ 1710) in which Lord Bingham CJ, Hirst and Millett LJJ dismissed the defendant’s appeal against an order that the libel claim brought by Mr Jonathan Aitken MP against the Guardian be tried by judge alone (see the interesting contemporaneous comment on the case on the 5RB website). The claimant later told story in this way
“‘I think we’ve got a good chance of hoisting the Guardian on their own petard’ said my QC Charles Gray, telling me of his plan to make an application for court [sic] that the interests of justice would be best served if the case was head by a Judge sitting without a jury. The basis of his argument was that the documentation had become impossibly complicated. The trial Judge, Mr Justice Popplewell, agreed. He decreed that, under a rare but established procedure, Aitken v Guardian would be tried as a Judge-alone case. The defendants, in considerable disarray, appealed against this ruling but were turned down by the Court of Appeal. A despondent George Carman QC told his clients that losing the jury was a ‘mortal blow’” (Jonathan Aitken, Pride and Perjury, p.192)
In fact, it wasn’t. The Aitken libel trial collapsed on 20 June 1997 after new evidence proved that he had lied to Popplewell J in the course of the hearing. The full story of the collapse of the case appears here in the Guardian. Younger readers may wish to update themselves with the complete “Aitken saga” – from his April 1995 promise to use the “sword of truth” against the Guardian to his 1999 prison sentence for perjury by looking at the Guardian’s report of the “Aitken affair“.
Although the “folk belief” is that trial by jury is less favourable to the defendant, a number of the recent applications for trials by judge alone (Gregson, Charman v Orion 17 June 2005; Prince Radu of Hohenzollern v Houston  EWHC 2328 (QB), Gentoo v Hanratty ( EWHC 2328 (QB)) have been made by claimants.
There is an interesting article on “Libel Law: The declining role of juries” by Nigel Tait of Carter-Ruck in which he points out that
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.
It would be a shame if this ancient and fundamental right were to disappear in the quest for “efficiency” and “costs saving” without the issues being the subject of proper public debate and scrutiny. We will report on the outcome of the appeal when it is known.