Case Law: Thornton v Telegraph Media Group – the slow decline of the libel jury trial continues

There has not been a libel jury trial in the High Court in London since July 2009.  The Draft Defamation Bill proposes to remove the right to trial by jury in libel and slander cases.  The decision of the Court of Appeal in Thornton v Telegraph Media Group on 22 June 2011 was another strong indication of the attitude of the Courts to this ancient constitutional right.  The Court allowed the defendant’s appeal against the refusal of Tugendhat J to vary the trial directions to provide for trial by judge alone.  The matter was remitted to the judge and an order has now been made by consent for trial by judge alone.

The Thornton case will be well known to readers of Inforrm.  The claim arises out of a book review in the “Daily Telegraph” by Lynn Barber.  The background is set out in our posts on the previous decisions in the case on the question of the meaning of “defamatory” (see here) and the availability of a defence of “honest comment” in malicious falsehood (see here).   Despite these interlocutory skirmishes – or perhaps because of their costs consequences – the action continues, with the trial due to begin on 4 July 2011.

Although an application for jury trial had not been made within 28 days of the service of the Defence (as required by CPR 26.11), directions for a trial by jury were agreed.  Following the decision in Cook v Telegraph Media Group [2011] EWHC 763 (QB) on 29 March 2011 the defendant applied to vary the mode of trial to judge alone.  This was considered at a hearing on 18 May 2011.  On 27 May 2011 Tugendhat J gave judgment ([2011] EWHC 1376 (QB)) dismissing the application.    He held that the order for trial by jury had not been made without jurisdiction  and “in the interests of justice to the parties, there must be a degree of certainty that directions once given will continue to have effect” [32].

The Court of Appeal (Carnwath and Leveson LJJ) heard the defendant’s appeal on 22 June 2011.  It was allowed.  The Court held, in an ex tempore judgment, that where a party seeking a jury trial failed to make an application within 28 days from the service of the defence, then the right to a jury under s.69(1) of the 1981 Act was lost, and it became a matter for the judge’s discretion, either under Senior Courts Act 1981 section 69(3) or under CPR r.3.1(2)(a).    The judge had a discretion as to whether or not to order trial by jury which he had not exercised when he refused to vary the mode of trial. The only reasons he gave were in relation to certainty.  He should have considered the matter more broadly.   The Court noted that there was no suggestion by the claimant that there was a special reason why a judge-only trial would be inappropriate or why the late appeal would prejudice her. The matter was remitted to the judge for reconsideration.

On Tuesday 28 June 2011 the parties agreed that the trial will be by Judge alone.  This is not surprising.  Orders for “discretionary” jury trial are rare (particularly where the case is not one against a public body).  The Court of Appeal judges appeared to have had little doubt on the point at the hearing.  In the course of argument Leveson LJ commented that he had “spent forty years in front of juries but I must say that the sands of time are running out for jury trial in civil matters”.  Carnwath LJ commented that “Common sense points to a judge only trial here“.   In the absence late compromise, the trial will now take place before Tugendhat J, without a jury, commencing on 4 July 2011.