Immediately following my client Luke Cooper’s win last Friday against the Evening Standard and Daily Mail, their lawyer came over to the claimant’s side of the court and said “I truly do hope that was the last ever jury libel trial“.
It had been hard fought, with both sides content for a jury to decide the case, and the first jury trial in a libel case for three years since Tom Bower defeated Richard Desmond‘s libel claim in 2009.
At that precise moment I realised just how damaging the proposed de facto abolition of jury trials in libel cases contemplated by clause 11 of the defamation bill would be. The almost casual abandonment of it is startling in the face of the long-established principle that where an individual’s honour or integrity is at stake, or when one or other party is lying, “the jury has no equal”. Indeed, to use the words the court of appeal in 1965, it is “the bulwark of our liberties“.
The debate about the desirability of shifting the onus to a judge-only tribunal has been unbalanced and ill-informed. My own view has long been that the decision on mode of trial – trial by judge and jury, or judge alone – should be determined at the allocation stage with parties either agreeing, as they often will, or the court deciding, after reviewing the pleadings and written submissions. Until now, the starting question (provided a party remembers to make a formal application to retain a jury at trial within 28 days of the service of the defence) has been why shouldn’t there be a jury?
A party opposing the application is usually able to resist a jury trial on various grounds, such as complexity or prolonged examination of documents. Give a lawyer a chance to argue a case is likely to be complicated then, as night follows day, they will make very sure it will become so. Over the past ten years, even where a party wants a jury trial, they will often succumb to the notion that for one reason or other, it is not to be.
In our case, this turned out not to be so. Libel cases attract long-winded arguments on all sides. Here we had a simple decision facing the parties and the jury: whose version of events of an interview given on 10 November 2010, during the height of the student protests, was right? The Evening Standard journalist, with his contemporaneous shorthand notes, or the claimant, who wrote bitterly complaining to the newspaper’s editor on the same day of publication?
As the trial judge, Mr Justice Eady, commented, this was a case which was highly suited for determination by a jury. After four hours of deliberation the twelve jurors returned a unanimous verdict (which included determining the meaning of the articles) in Cooper’s favour, together with an appropriate sum of damages – £60,000 in total. The vindication was fast and emphatic.
The advantages of a jury trial in the case were obvious: this mode of trial forced the parties to focus not on pleadings but on the disputed facts, which in the end boiled down to a short on-the-spot interview and follow-up call by the journalist to Cooper.
Closing speeches to a jury require a party to strip away the legal argument which so often clogs and clots the trial process. You have to explain to twelve jurors whether what you promised them in the opening speech has turned out to be the case. Have you persuaded them? In judge-only libel trials, cases are allowed to shift from one basis to another. Judges do not punish the parties for shifting their ground. Judges indulge barristers far too much, in my view. In front of a jury your case is stripped bare of unnecessary complexities. If it suits a jury, then let it be.
Louis Charalambous is a media litigation partner and head of the press law team at Simons Muirhead & Burton
This post originally appeared on Guardian law and is reproduced with permission and thanks
So well said by Louis Charalambous. I could not agree more. His comment that Judges often indulge barristers, holds most true in libel court hearings. Also agree with much of the Early Resolution comment. The Defamation Bill has serious flaws and appears to have been written by and for the newspaper industry, other than clauses for scientific research. How much did they lobby for this? Why was there NO MENTION of lobbying on The Defamation Bill at Leveson? Surely, this is in his Terms of Reference. I tried to raise it, but LJ Leveson shuts me down by defaming me in his judgments. He is being very selective on what evidence he wants to hear and adduce, but this is not in the public interest. Lets not forget that the public is paying for the Inquiry.
What the Rt. Hon Kenneth Clarke had to say in his evidence about funding privacy/libel actions was shocking, particularly when he acknowledged that the newspapers now run Britain, not the politicians. It’s madness. So the most powerful cannot be held to account unless one has millions to fight them. Even then, you will likely end up out of pocket like Max Mosley. The legal system needs a revolution: Costs shifting and much higher damages for a start. The Defamation Bill needs to be re-written and it should wait until Leveson reports.