On 13 December 2010 the Early Resolution Procedure Group, chaired by former defamation judge Sir Charles Gray (pictured right), published its Report, entitled “Media Disputes and Civil Litigation Costs”.  The main proposal is the amendment of section 69 of the Senior Courts Act 1981 so that a judge may, at any stage of a defamation case, decide what the words complained of mean.  Such a decision would be binding if the matter subsequently went to a jury trial.

In addition to Sir Charles Gray, the members of the group were Andrew Caldecott QC, Adrienne Page QC, Alasdair Pepper, Jacob Dean, Razi Mireskandari, Gill Phillips and Alastair Brett.  It was set up in February 2010 in order to consider ways in which defamation claims might be capable of earlier and thus cheaper resolution.

The Group has proposed detailed changes to section 69 and the practice direction to CPR Part 53 in order to put the proposals into effect.   As well as prposing that a judge could determine the actual meaning of the words at an early trial stage, the Group’ suggests that the judge could also decide whether the words were ‘fact’ or ‘comment’.

The Group suggests that

“in the great majority of cases, the application for the determination of meaning could be resolved on paper on the application of either party at any time after service of the Claim Form and once it was clear that meaning would be a key, if not determinative, issue. The Court could also act of its own motion in an appropriate case”.

It accepts, however, that the Court should retain the right to hear oral argument for cases involving complex points of law or innuendo or reference meanings.

The Report notes that jury trial and the uncertainty over the “meaning” attributed to a defamatory article can cause each side to run up huge legal costs.  While the Group does not call for the abolition of trial by jury in libel actions it is hoped that the recommended changes to s. 69 might help resolve many cases much earlier.

Finally, the Report noted that these proposed amendments would be unnecessary if a wider reform of the role of jury trial in defamation cases were introduced.   If, however, trial by jury is to be retained they are sensible and proportionate reforms which merit serious consideration by the Government.

The publication of the Report is noted on the 5RB and 1 Brick Court websites.