The Defamation Bill 2012 has had its second reading and is now at the Committee Stage in the House of Commons. The Committee has not yet reached clause 11 which is headed “Trial to be without a jury unless the court orders otherwise”. This clause removes the right to jury trial in actions for libel and slander. As a result, such actions are in the same category as all other claims: such actions “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury” (section 69(3), Senior Courts Act 1981).
This means, in practice, that the action will always be tried by judge alone. The effect of the case law is that in practice, the discretion to order a trial by jury where there is no statutory right is never exercised (see most recently, Lewis v Commissioner of Police  EWHC 1391 (QB)). In recent years, the Courts have taken a strict view of the requirement in CPR 26.11 that an application for trial by jury must be made within 28 days of service of the defence. The repeated failure of parties to make such an application in time has led to the loss of the statutory right to jury trial in most of the libel cases before the courts over the past 2 years. This has meant, in turn, that libel cases such as Thornton and Bento have been tried by judge alone, despite the wish of one of the parties to have trial by jury.
The case of Luke Cooper v Evening Standard, tried last week by Eady J and a jury was the first libel jury trial for nearly 3 years. The claimant succeeded against two newspapers (see our post here). But if clause 11 is enacted this could be the last libel jury trial.
We thought that, this week, while the matter is still being considered in Parliament it would be interesting to debate the removal of the right to jury trial in libel cases.
There appear to be three options:
- Remove the right to libel jury trial, as presently contemplated by clause 11 of the Defamation Bill.
- Retain the right to libel jury trial in the present term
- Retain a modified right to jury libel jury trial.
Over the next few days, we will debate these options. We invite readers to contribute posts or comments on this topic: whether for or against jury trial.
At the end of the week we will have a “Readers’ Poll” to ascertain what our well informed media and law readership thinks of the issue.
The next post in this series will deal with the history of libel jury trial.