It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of the abolition of the right for juries to try libel cases in England and Wales should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*
Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Warby J in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.
More significantly, Warby J’s decision about a jury has ditched centuries of legal and constitutional principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.
New law on jury trial in defamation cases
Formerly (and for many centuries) there was a right to trial by jury in certain civil cases (malicious prosecution, false imprisonment, fraud, libel and slander) but with discretion to hold a trial under these headings without a jury if
“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 of the Senior Courts Act 1981).
More recently it was necessary for the parties to apply in good time (28 days) for a defamation case to be held with a jury under Part 26.11 of the Civil Procedure Rules (shown here as amended) but that application would be granted.
The 2013 Act removed libel and slander from the list, so there is now a statutory presumption that there will be no jury unless a court orders otherwise. The purpose of the new Act, according to the Master of the Rolls, Lord Dyson, seems to be a mixture of saving money and speeding up cases – which itself saves money. He said:
“Early resolution is desirable in defamation and privacy cases, as in other areas of litigation, to sort out disputes quickly and economically. It is particularly important in defamation cases, however, in view of the very high costs that can arise.” (Statement here pdf)
The problem with this statement is that it gives no guidance on when a jury shouldbe used – since if the purpose of the Act is merely to save money and time, a jury could never achieve that. Surely there must be some greater principle than cheese-paring involved? Not least because the right that has now gone was once referred to thus by Lord Denning:
“Every defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the defendant has ventured to criticise the government of the day, or those who hold authority or power in the state.” (Rothermere v Times Newspapers Ltd 1 WLR)
The trial of the “Seven Bishops” ((1688) 3 Mod.Rep. 212 pdf) is generally taught as establishing this constitutional right as part of the story of Britain’s political progress. Denning concluded: “Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest – and is then charged with libel – then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.”
Lawton LJ in the same case said:
“The wiping out of a litigant’s reputation may be of no consequence to anybody save himself, his family and his friends, but the wiping out of another’s, for example, a cabinet minister’s, may have consequences for the whole nation. When the public is likely to be affected by the result of an action for defamation it may be advisable to bring the public into the administration of justice by ordering trial by jury, even though the trial may be long, the issues complex and the documentary evidence massive and formidable.”
In Jonathan Aitken v the Guardian (1997 CA) Lord Bingham followed Denning: “An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest.”
Although the right to trial by jury has now gone, surely the little judicial discretion that remains must carry some of the burden of the old “constitutional” right? This is the issue Warby was grappling with – but the principles he has arrived at are somewhat bizarre. He rejects Denning’s and Bingham’s notions except in the narrowest of circumstances.
Yeo v Times Newspapers
It was argued by Gavin Millar QC for the Times that some of the principles in the pre-2013 cases did indeed carry forward into the “bare discretion” that still allowed judges to order trial by jury – given no other guidance was given with the Act. So “the subject matter of the action [parliamentary standards and lobbying], the identity and status of Mr Yeo, and the offices or positions he holds” should all be weighed in the balance. (para 50) Warby J rejects this: “Parliament no longer regards jury trial as a right of ‘the highest importance’ in defamation cases. It is no longer a right at all.” (Para 47) He notes:
“Mr Millar QC’s submissions do not identify any skills, knowledge, aptitudes or other attributes likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues that arise and may need to be tried.”
In other words Millar failed to show why jury trial would be more appropriate than trial by judge. Indeed on the issue of whether Tim Yeo’s behaviour met the obligations of “selflessness and integrity” required of an MP, a judge was the best person to give “a clear and reasoned answer” since, “an inscrutable jury verdict, open to interpretations, would not be desirable”.
So we have moved on from the simple need to save time and money in libel trials. Warby J has asserted a new principle, implying juries aren’t actually much cop when it comes to judging the ethical quality of an MP’s behaviour – or at least cannot have their reasoning analysed. Warby has imposed his own interpretation on the legislation, lacking as it does any guidance to its meaning: it was intended to produce better judgments, “clear and reasoned”, rather than (presumably) the vague and probably inconsistent view that issues from the jury room. Indeed Warby J is quite happy to draw on one of the earlier cases he otherwise dismisses to underline this point. Lord Bingham says in Aitken:
“A general verdict of a jury could well leave room for doubt and continuing debate whether, on hotly contested issues, the plaintiff or the defendants have been vindicated. A reasoned judgment, giving the judge’s conclusions and his detailed reasons for reaching them, would by contrast settle, one would hope once and for all, whether or not the plaintiff had misconducted himself in each and every one of the ways charged.” (Aitken at 427)
Juries don’t attach the reasons to their verdicts. They simply fall down on one side or the other. So Warby J says:
“In a case involving disputes as to meaning and alternative defences of justification and fair comment a general jury verdict would be open to a variety of interpretations.” He adds: “the greater the public interest in the subject-matter of a particular dispute the more unsatisfactory this will be from the perspective of the public”.
So Warby J, by picking and choosing among the precedents, seems to have suggested a new meaning for the 2013 Act – that it was intended to inject reasoning and explanations into judgments. Nowhere is that indicated in the Act or the notes accompanying it where only money-saving seems to be involved. Warby J has reversed the whole constitutional principle underlying the former right to jury trial for defamation.
The point of that right – and the point of the Seven Bishops case, is that where there is public interest, then it is for the public, represented by twelve jurors, to make the decisions about that public interest, to establish the facts of the case and to assign guilt. The important principle is that a jury cannot and should not be held to account for it, not that they ought to be.
The right has gone, but the discretion in the hands of an independent judiciary should surely have maintained that right in cases such as these – where a man who is a public servant and representative of the people is accused of breaching the ethical standards implicit in his very important role.
Warby considers it not such an important role. Yeo was chair of the Commons Energy Select Committee (and the Sunday Times allegation against him involved assistance to a solar panel firm). Warby says: “Mr Yeo has a prominent position but it does not afford any grounds for giving this factor any substantial weight here.” (Para 57) He adds later: “Neither party [Yeo nor the Sunday Times] is a public authority. Mr Yeo, whilst holding an influential position, is not in government and exercises no state power.” (Para 79)
So, if Yeo is not a significant enough personage to face a jury in his libel claim, who might be? Warby J seems to allow only of situations where there might be the perception of “involuntary bias”:
“An instance could … be a libel claim brought by a judge, of which there have been examples in recent history though none that have reached trial. There could be other cases not involving ‘rank or dignity’ but subject matter.”
This seems a pretty narrow area in which discretion would be exercised. A judge bringing a claim might see the advantage of a colleague on the bench judging it – and so must be denied that perceived advantage. One assumes that an actual government minister would face a jury – but it is not clear whether it would have to be a case of some failing in his ministerial duty or whether a mere extra-marital affair would qualify for a jury trial.
Warby had noted earlier in his judgment that “the greater the public interest in the subject-matter of a particular dispute” the greater the need for a judge alone and his reasoned judgment. So would the eminence of the person at the heart of the trial (be it judge or Cabinet minister) trump the public interest – implying a jury trial? Or would the eminence/importance of the personality always add to the public interest, thus taking it further beyond the level of hoi polloi who might be jurors? Warby’s judgment is certainly “reasoned” – but is it “clear”? It ought not go unchallenged.
Aitken v Guardian is here
Cook v Telegraph is also relevant
• Thanks to Bailii.org for cases
Thanks also to RichGreenhill
• A report of the Yeo case is on Inforrm’s Blog
• Useful background here to the 2013 legal change (International Law Office)
The issues (from Yeo v Times paras 5 and 6)
“The first of the articles of 9 June 2013 (‘the Front Page Article’) was the paper’s front page lead, continuing onto page 2. It was headed ‘Top Tory in new Lobbygate row’ and there was a sub-headline: ‘MP coached client before committee grilling’. The article, 27 paragraphs long, gave an account of the arrangements for the lunch meeting, and what took place at the meeting. It referred to a House of Commons Code of Conduct prohibiting paid advocacy by MPs, and described Mr Yeo as ‘the latest politician to be implicated in a “Westminster for sale” scandal that has engulfed Parliament’ after revelations in The Sunday Times the previous week. After referring to what had happened to other parliamentarians so ‘implicated’ it described an email exchange between the ‘lobbyists’ and Mr Yeo the day after the lunch meeting, and quoted a statement from Mr Yeo.
The second article of 9 June (‘the Inside Article’) appeared on pages 6 and 7 of the print edition. It was headed ‘I told him in advance what to say. Ha-ha’ and had a sub-headline ‘The chairman of a Commons committee has boasted of how he can promote businesses in which he has an interest’. Over 57 paragraphs it gave a more elaborate account of the matters covered in the Front Page Article, with some additional material. It included a graphic with the words ‘Westminster for Sale’.”
Yeo denies the claims in the articles and says they are defamatory. Times Newspapers denies they are defamatory. Warby held that the articles held potentially defamatory meaning, saying:
“In my judgment these articles clearly did contain defamatory comment or opinion, both explicit and implicit. First, there is explicit comment in paragraph  of the Front Page Article, where Mr Yeo was said to be ‘implicated’ in a ‘scandal’. The ordinary reader would understand this as a comment or opinion or value judgment about Mr Yeo’s behaviour as alleged in the article, to the effect that this was scandalous. The use in the headline of the term ‘Lobbygate’ supports the suggestion of involvement in scandalous behaviour. The ‘facts on which the comment was based’ are amply indicated within the articles. They consist of the role of Mr Yeo as an MP and chairman of the ECCSC and his alleged conduct as described in some detail in the two articles. The comment that Mr Yeo’s behaviour was scandalous is defamatory.
“Secondly, I agree with TNL that the ordinary reader would understand these articles to contain an implied defamatory comment about Mr Yeo’s use of his Parliamentary position to further his own financial and business interests. That meaning, in my view, is that Mr Yeo had shown willing to abuse his position in Parliament to further his own financial and business interests in preference to the public interest. This is similar to but slightly different from TNL’s pleaded meaning. The meaning is not express, but in my judgment clearly implied by the articles.” (Paras 107 and 108)
This post originally appeared on the Alrich Blog and is reproduced with permission and thanks