The Court of Appeal this morning heard an application by the Claimant, Matthew Fiddes, for permission to appeal the decision of Mr Justice Tugendhat to have the trial heard by judge alone. The Court, which comprised Lord Neuberger, Master of the Rolls, Lord Justice Maurice Kay, Vice President of the Court of Appeal (Civil Division) and Lord Justice Sedley, gave Fiddes permission but then went on to refuse the substantive appeal. Judgment has been reserved, but Fiddes has been ordered to pay Channel 4’s costs in the sum of £14,000 within 28 days. Trial is due to commence on Monday with a time estimate of 20 days.

This is the latest instalment in a long standing fight about a Cutting Edge documentary “The Jacksons are Coming” between Mr Fiddes and Studio Lambert (the makers of the programme), Jane Preston, (a freelance journalist and the narrator) and Channel 4 (the broadcaster). The documentary followed members of the Jackson family, including Katherine and Tito Jackson, in their journey to Devon and depicted the Claimant as betraying the trust of the Jacksons and dishonestly exploiting them. The Claimant alleges that the documentary was dishonestly edited and faked and the Defendants rely on fair comment and justification. The Claimant is being represented by M LAW on a (much criticised) conditional fee arrangement and the Defendants by Aslan Charles Kousetta.

On 28 May, Mr Justice Tugendhat allowed an Application by the Defendants to vary a consent order, which provided for trial by jury, to have the matter heard by judge alone. Mr Justice Tugendhat held that in relation only to a relatively small number of issues the trial will require the prolonged examination of at least some documents and footage. The Judge therefore found that the first criterion in section 69 (1) (b) of the Senior Courts Act 1981 was satisfied, albeit that on a much more limited basis than advanced by the Defendants. On the issue of convenience, the Judge found that the trial would take much longer if heard by a Jury. Indeed “of necessity, any action involving documents is bound to take longer if there is a jury“. In particular, the Judge was persuaded by the fact that a judge has a dialogue with counsel which cuts through misunderstandings. The Judge took into account the fact that with the footage, the viewing of which he considered would take approximately 2 days in total, the Judge was able to view it outside of court hours, whereas with a jury all viewing would need to be during court time. Added to this a jury would require a summing up as opposed to a reserved judgment written outside of court time. However, Tugendhat went on to say that

I am of the opinion that there will be some practical difficulties entailed in a jury looking at footage and transcripts alongside one another. But I would not expect those practical difficulties to be unusually great in this case. I see no special difficulties or complexities in the footage or the documents themselves… [T]he task would certainly not be beyond a jury… Compared with carrying out the same process with the judge alone I have little doubt that it would be substantially more difficult (and less convenient) to do it with a jury than with a judge alone”

Mr Justice Tugendhat went on to hold that there were significant costs savings that could be made even at this late stage. At 23 April 2010 the Claimant’s base costs were £900,000 and the Defendants £1.2m. The additional costs estimated up to the end of July were £700,000 for the Claimant and £1.2m for the Defendants. The Judge considered that “if there remain savings in costs to be made, even at this late stage in the proceedings, then I accept they are a relevant consideration“. The Judge went on to say that the costs of each day in court would be “very large”.

Turning then to the exercise of his discretion, Mr Justice Tugendhat considered that “this case raises issues as to what is and is not acceptable editorial practice in television broadcasts which are presented as factual”. The Judge considered this to be a “very important question” and that “there is much to be said for this question being resolved by a reasoned judgment“. Further, Mr Justice Tugendhat estimated that the trial would take a further week or two with a jury and that the costs saving would be substantial. Nevertheless, the Judge accepted that at this late stage the impact of costs on freedom of expression (which were to be viewed in general as having a chilling effect) could not be given as greater weight as it could have been at an earlier stage.

On balance, Mr Justice Tugendhat said that he had not found the application easy to decide, but had come down “on balance but firmly” in favour of varying the mode of trial to judge alone.

In the Court of Appeal, the Claimant argued that the Judge was wrong in law and/or exercised his discretion in a way which fell outside the ambit within which a reasonable disagreement is possible. Ronald Thwaites QC for the Claimant argued that the Judge had been wrong to hold that a “prolonged examination” of documents would be required. Ms Preston’s diary was said to be a straight forward document written in simple language, which rather than needing to be analysed by the jury would be used primarily in cross examination as to malice. The same was true of the footage. The Claimant went on to argue that this would need to be shown in open court in any event given that it would also be used in cross-examination. The Judge could not therefore view it simply after hours. As to convenience, the criticism was levelled that the Judge had applied the test as to whether trial by judge alone would be “more” convenient and not the correct test of whether the prolonged examination “cannot” be conveniently done with a jury. The former test would almost inevitably always be satisfied.

Adrienne Page QC for the Defendants argued that the Judge had applied the tests of “prolonged examination” and “convenience” wholly properly. It was said that there was a large volume of critical contemporaneous documents and that the Claimant was trying to present an overly simplified case ignoring the more complicated case which the Defendants intend to run and the divergence in opinion on meaning. Importantly, the documents were not going to be used purely for cross examination, rather would be relied on by the Defendants as primary evidence.

The Claimant had also specifically reduced his case to be heard by a jury, if the matter was to be heard by Judge alone, the Claimant was, he submitted, permitted to revert to his original case and thus there would in reality be no time or costs savings through having a trial by judge alone. The Claimant said that the Judge had not taken this factor into account. For their part, the Defendants argued that it was wholly improper for the Claimant to make this “bargain” with the Court and that in any event the Claimant had been less than clear about whether it would revert to the fuller case in the event of judge alone and hence the Judge could not possibly have taken this factor into account.

The Claimant said that given this was a case of honesty, with dishonesty being alleged by both sides, this was a classic case where a jury verdict would be sufficient and there was no need for a reasoned judgment.  Mr Thwaites QC argued before the Court that this case brought into question the right to a trial by jury in libel and that if this appeal was not allowed it was difficult to imagine any case in which trial by jury would withstand objection. Further, it was argued that it was wrong to consider that costs would have a “chilling effect” on freedom of expression, given the lateness on trial and the comparatively small costs saving involved. Finally, the Claimant argued that the countervailing Article 6 and Article 8 Convention Rights had not been taken into account nor counterbalanced against the Defendants’ Article 10 rights.

The Defendants argued that it was of real importance to them to have a reasoned judgment. Given the high legal costs involved, particularly once success fees were taken into account, only a reasoned judgment would enable the Judge to make rulings as to costs, otherwise there would be no guidance available at all as to whether issues had been pursued unnecessarily.

Counsel for the Defendants described the case as “an example of litigation which explains the public disgrace into which libel litigation has fallen”. For their part, they argued that there was no question of a constitutional right to trial by jury being at issue, rather it has already been recognised that there is an emphasis against trial by jury as reiterated by Lord Bingham MR in Aitken v Preston ([1997] EMLR 415).

The reasons for the decision of the Court of Appeal this morning are yet to be given and will be fully reported on when handed down. However, Lord Neuberger said this morning that the Court had reached the “clear conclusion” that the appeal should be dismissed.

Anna Caddick is an Associate in the Media Litigation Group at Olswang.