In an English defamation action there is a statutory presumption that there will be a jury trial, rather than a trial by judge alone. This originally applied to all cases at common law but is now confined to a small range of claims, including libel and slander. This right is now found in section 69(1) of the Senior Courts Act 1981:
“Where, on the application of any party to an action to be tried in the Queen’s Bench Division, the court is satisfied that there is in issue— (a) a charge of fraud against that party; or (b)a claim in respect of libel, slander, malicious prosecution or false imprisonment; or (c)any question or issue of a kind prescribed for the purposes of this paragraph, the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.“
Section 69(2) provides that an application under subsection (1) for a jury trial “must be made not later than such time before the trial as may be prescribed”.
In practice, the courts have been keen to get rid of juries in defamation cases for some time, and so it has been relatively common for the court to direct trial by judge alone. After all, many cases now involve a lot of documents, in particular email, making them unsuitable for determination by a jury. However, for simple cases, juries have been the norm.
That position has now changed, because of the recent discovery of Part 26.11 of the Civil Procedure Rules. Although this rule has existed for some time, it has only just come to the attention of defamation practitioners and the courts. It provides that:
An application for a claim to be tried with a jury must be made within 28 days of service of the defence.
The timing here is significant. In most civil litigation, the pleading stage of the case ends with the service of the defence. By then, the parties will know what issues are in dispute, and can decide how long the trial will be and how many witnesses will be involved. That is not the position in defamation claims in which a defendant has pleaded a defence of truth. The rules require the claimant in truth cases to serve a reply, specifically admitting or denying each of the allegations set out in the defence (CPR 53 PD 2.8). Until this has been served, the parties do not know what issues of fact will need to be decided at trial, making it very difficult to reach a meaningful view on mode of trial.
It is now clear that if a party applies for a jury trial outside of the 28 day period specified in CPR 26.11, the presumption established by section 69(1) does not arise. Instead, section 69(3) applies:
“An action to be tried in the Queen’s Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”.
In other words, the presumption is reversed. This has been considered in three cases.
The first was Times Newspapers Ltd v Armstrong  EWCA Civ 519 in which Lord Justice May said:
“… an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons” .
This position was made clearer still in two cases this year. In Cook v Telegraph Media Group Ltd  EWHC 763 (QB), Mr Justice Tugendhat held that:
“The implications of this [CPR 26.11] for the exercise of the court’s discretion under section 69(3) may not hitherto have been fully appreciated. The implication is that, once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.“
The Court of Appeal has now given its tacit approval to this approach in Thornton v Telegraph Media Group Limited  EWCA Civ 748. Lord Justice Carnwath said:
“We have not been asked to review the reasoning in Cook and we must proceed on the basis that it is correct. The practical effect is that, where a party seeking jury trial in circumstances where that is permitted by s.69(1)(b), which includes libel, fails to make the application within the period prescribed, which is 28 days, then the right which it could be said that s.69(1) confers goes and the matter then becomes in the discretion of the judge .
This may either be because it falls under s.69(3), where it comes within the general provision for judge trial unless the court in its discretion orders a jury trial, or alternatively, on an application to extend time under Part 3.1(2)(a), where the matter would be at large in the judge’s discretion” 
In Thornton, although no application had been made within the timeframe specified in CPR r.26.11, the parties had agreed to a jury trial in approved directions. The defendant then sought to vary this for a trial by judge alone. Mr Justice Tugendhat refused to vary the order on the basis that there should be a degree of finality about such matters. The Court of Appeal stated that there was a discretion as to whether to order a jury trial and that the judge should have considered the issue more broadly than he did. In the absence of a special reason why trial by judge alone would be inappropriate or why a late change would prejudice a party, the matter should be remitted to the judge for reconsideration. Lord Justice Leveson remarked that “the sands of time are running out for a jury trial in civil matters”.
The position might change again if the Government’s draft Defamation Bill is passed. The Act would remove libel and slander cases from section 69(1) altogether, so there would never be a presumption of trial by jury. If passed, the court would still have the power to order a jury trial in a defamation case, just as it can theoretically order one for the trial of any type of civil claim. However, the reality is that the Act would mean the end of jury trials in defamation cases.
Jaron Lewis is a partner in the RPC media team.
This post was originally published as an RPC Media Bulletin and is reproduced with permission and thanks
Where does this leave para. 9.3.1 of the Queen’s Bench Guide which specifically states:
“Claims for damages for libel and slander (defamation), fraud, malicious prosecution and false imprisonment will be tried by a Judge and jury unless the court orders trial by a Judge alone.” ?