The Court of Appeal has, today, given its reasons for the dismissal of the Fiddes mode of trial appeal. The judgment of the court in Fiddes v Channel Four ( EWCA Civ 730) was given by the Master of the Rolls, Lord Neuberger. We have already posted on the decision of the Court of Appeal and the settlement of the case on the first day of the trial. The decision provides a useful summary of the position in relation to “mode of trial” in libel cases.
The question on the appeal was whether the judge had rightly held that the case came within the proviso to section 69(1) of the Senior Courts Act 1981, thus removing the right of trial by judge and jury. The Court of Appeal took the basic principles from the controversial decision in Aitken v Preston  EMLR 415, 418, in which it was said that the judge (Popplewell J) had correctly identified three issues
(i) Will there be a prolonged examination of documents?
(ii) If so, can it conveniently be made with a jury?
(iii) If not, should the court nonetheless exercise its discretion to order trial with a jury?
The Court of Appeal went on to make six points about the analysis of the principles in Aitken:
(1) It emphasised the need for caution when invoking the additional length and cost of jury trials when considering “convenience” under point (ii) above – as jury trials would almost always be longer. 
(2) The number of documents was not the issue – it was “prolonged examination”. 
(3) The inconvenience must arise from the “prolonged examination of documents” not from any other feature of a jury trial 
(4) The fact that one party is a public figure is a factor in favour of jury trial but the reverse is not true 
(5) The constitutional importance of jury trial was not mentioned in Aitken but must be borne in mind 
(6) The fact that juries in criminal trials sometimes consider complex documentation does not bear on the section 69(1) questions .
The Court of Appeal then considered the judge’s decisions on the three “Aitken” issues holding that there were no grounds for interfering with his conclusions. They concluded
“this was a full, careful and considered judgment of a judge, with very wide experience of defamation cases, and with detailed knowledge of the case and of the issues involved, who, after summarising the facts and issues in the case and directing himself correctly as to the applicable legal principles, considered the three section 69 questions by reference to a careful assessment of the way in which the trial was likely to proceed, and, while accepting that the ultimate decision was not easy, concluded that the trial should not proceed with a jury. We do not consider that he erred in law in reaching this conclusion”. 
In passing, the Court of Appeal criticised the fact that parties had obtained a transcript of the hearing before the judge, commenting that “only in the most exceptional circumstances” would it be justifiable “even to consider” obtaining such a transcript .
Finally, it should be noted that a full transcript of the first instance judgment appealed against is not yet publicly available.
The decision of the Court of Appeal seems to us to be an unimpeachable application of established principles in this area. There are, nevertheless, three points of concern.
First, the Court briefly noted () but did not address the appellant’s submission that
“the law has moved on from Aitken v Preston  EMLR 415, CA, the case which the Learned Judge appeared rigidly to follow, which was decided prior to the introduction of the CPR. Although it was a starkly different case from the present (as explained below), there the Court of Appeal regarded itself bound to accept the statement of intention by the Claimant’s Counsel that he wanted to present the case in a highly detailed and painstaking manner, in marked contrast to the Defendant’s Counsel”.
This is an important point because the party who wishes to avoid trial by jury can almost always present its case in a way which involves “prolonged examination of documents”. Under the CPR the judge can actively manage the case to cut down the documentation to the essentials. It is perhaps surprising that Lord Neuberger MR – who was an extremely active “case manager” at first instance – did not address this point.
Second, there is the obvious and striking disparity between the approach in civil and criminal cases. Although the court did not regard this of significance it is surprising that a jury which could have easily examined the video footage and documents if, for example, the case had involved an allegation of fraud, could not do so in a case involving an allegation of defamation.
Third, the decisions of the Court of Appeal over the past three decades (by which the court was bound) have gradually led to the emasculation of the right to trial by jury in libel cases. Bearing in mind the document heavy nature of modern litigation, it is almost always possible to find that a case requires the “prolonged examination of documents”. As a result, civil juries are disappearing in the English legal system. This was plainly not the intention of parliament when it enacted section 69 or its statutory predecessors. It seems to us that this should be a matter of public debate. If the consensus is in favour of abolition or restriction then a measure such as is proposed in Lord Lester’s Defamation Bill is appropriate. If, on the other hand, the consensus favours retention then the “presumption” in section 69 needs to be strengthened.