Defamation is a rich man’s sport.  Only the super-rich or those on “no win, no fee” agreements with their lawyers can begin to afford the astronomic cost of a libel action.  Why? Because there are too many uncertainties in defamation actions.  First and foremost amongst these is ‘trial by jury’, a quite extraordinary hang-over from the past, which in too many cases bears little or no resemblance to justice.

So what is so wrong with jury trial?  The short answer is that it is totally unpredictable.  Guessing which way a jury will jump is nigh on impossible in any borderline case.  This leads to chronic uncertainty and in many cases anything but a fair result.

One of the key functions of a jury is to decide meaning – has the newspaper accused the claimant of actually being a terrorist or are there simply reasonable grounds for believing that he might be a terrorist?   This crucial question is never asked at the outset of a libel action when it should be.  The claimant and defendant can therefore spend years shadow boxing as this question is hypothetically left to a jury come the day of trial. And this may be after hundreds of thousands of pounds have been spent on the pleadings and applications to strike out particulars of justification.

So when is the jury asked what the natural and ordinary meaning of the article is?  Never!   Juries never actually have to decide what the words actually mean.    Indeed trying to get ‘12 good men and true’ to decide the natural and ordinary meaning of the words complained off could take weeks if not months.  Juries in straightforward cases simply find ‘for the claimant’ or ‘for the defendant’;  there is no reasoned  judgment, no explanation, little logic, just gut instinct as to which side the jury thinks should win after hearing the evidence.  And then IF they find for the claimant, they pluck a figure in damages out of the air, hopefully somewhere within the parameters set by the judge.

And if meaning is not the key issue for the jury “to decide”, it may well be asked a series of tricky questions about the evidence which it has heard.  These exam-paper type trials nearly always end in tears.   In one case the jury were out some four days deliberating over the questions they had to answer in a complex case involving a television programme and a mythical Northern Ireland killing squad.  After answering one question completely wrongly, the jury still managed to award the producer of the programme a six figure sum in damages.   The jury’s verdict was as much a surprise to the trial judge as it was to the parties.

Jury trial also runs counter to section 2 of the Defamation Act 1996 and the idea of a speedy “offer of amends” giving a repentant publisher a defence.   How can a defendant say sorry to a claimant where the level of meaning is a key issue and theoretically will only be resolved at trial by a jury.  Apologize too quickly for a “level one” meaning i.e. ‘guilt’ and the defendant will pay thousands of pounds more in damages than may be necessary.  In too many cases meaning will not be decided until trial and then only with the jury finding for one party or the other.  And to cap it all, the court can only goes as fast as the stupidest of the jurors, thus running up huge additional legal costs.

Jury trial in defamation actions is a lottery and a throw-back to the past.   While it may be a bulwark of the criminal legal system, it is an expensive anachronism in civil actions.  Indeed, those who have worked at the coal face know the terrifying uncertainty of jury trial in libel cases.  They will also know that a jury will always give the claimant the benefit of the doubt, particularly when the defendant newspaper is owned by a “hate figure” like Rupert Murdoch.  It is a standing joke amongst media lawyers that in order for a tabloid newspaper to win a jury trial there has to be incontrovertible evidence showing the claimant to be a liar and/or a cheat.

The old right to jury trial must go.  Only those civil liberty purists who believe in the sanctity of jury trial can seriously believe they need to be retained for libel actions.  Only in very rare cases, where the claimant is a public figure and the newspaper has to rely on the good sense of a jury to return a Clive Ponting type verdict (he was acquitted in an Official Secrets trial after the Falklands War because the jury took the view that he should never have been prosecuted for telling the truth about the sinking of the Belgrano) should the court be allowed to order trial by jury.  In all other cases, the key decisions in a libel action – what the words actually mean, if they are a statement of fact or a comment and if the words are actually defamatory – should be made at the outset of a libel action by an experienced libel  judge, whose decision can be appealed to the Court of Appeal.

While the Defamation Bill is entirely right to abolish the right to jury trial in libel actions, the Government has totally failed to bring forward procedural changes to make libel affordable to anyone other than Russian oligarchs, football players and film stars.  Over a year ago, the Ministry of Justice showed some interest in procedural change but the current Defamation Bill is little more than a codification of the current law with hardly any changes which will give access to justice.   We at Early Resolution CIC, a not-for-profit company set up to help parties to libel actions to resolve their differences quickly, fairly and cost-effectively, believe that a lot can be learnt from other  tribunals and section 70 of the Senior Courts Act 1981 which provides for lay assessors to sit with judges.

In any libel action referred to us, we invite the parties to agree that the expert arbitrator, a retired judge or leading silk, should be assisted by two lay assessors, one male and one female.  This panel is like a mini jury.  The two lay assessors bring a “down to earth” quality to the proceedings which can otherwise become an overly analytical and didactic exercise as can happen in Court 13.  Judges can, like it or not, can get too stuck in their ways and see every case as the product of those feral beasts working for tabloid newspapers.  Having two lay assessors, to sit with the expert can be very helpful and it gives both parties the feeling that they are not the victim of the prejudices of a single person.

Key issues in a libel action like ‘meaning’ or ‘comment or statement of fact’, should be decided at the outset not just by a judge alone but by that expert PLUS two lay assessors. Their decision is then put into writing and can be appealed if wholly wrong.  It is precisely this kind of procedural reform or the introduction of a mandatory fast track statutory adjudication system for media disputes like that in the Construction Industry that this Defamation Bill totally lacks.  Without creative and imaginative procedural reforms, libel will remain the preserve of the super-rich.   With CFAs on their way out in libel actions, there will be even less access to justice than there was before.  How wrong can this Government get it?

Alastair Brett, Media Law Consultant & Managing Director of Early Resolution CIC