Armstrong v Times Newspapers Ltd (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 07 December 2005 |
| Neutral Citation | [2005] EWHC 2816 (QB) |
| Date | 07 December 2005 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ04X01798 |
[2005] EWHC 2816 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Case No: HQ04X01798
Richard Spearman QC and Matthew Nicklin (instructed by Schillings) for the Claimant
Andrew Caldecott QC and Heather Rogers (instructed by Addleshaw Goddard) for the Defendants
Hearing date: 1st December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 1 st December 2005 I was asked by the parties to resolve the issue of whether the preliminary hearing, as to the meaning of the words complained of in this libel action, should take place before a judge sitting alone or with a jury. This was against the background of recent agreement between the parties that the action as a whole should be tried by judge alone. That conclusion is in my view entirely appropriate since, as the parties recognise, it will require prolonged examination of documents and also a scientific investigation which cannot conveniently be made with a jury. In the light of the terms of s.69 of the Supreme Court Act 1981, it follows that the action shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
There have been various changes of stance over the history of the litigation as to whether or not the issues, or some of the issues, should be tried by a jury, but the current position is that the Claimant contends that meaning should be ruled upon by a judge alone, whereas the Defendants submit that this issue (alone) should be resolved by a jury. It emerged, however, that the Claimant contends, not merely that the court should exercise its discretion in favour of trial by judge alone, but that there is on a proper construction of the statutory provisions no jurisdiction to order otherwise. This was a novel proposition, so far as I was concerned, and it requires therefore careful consideration of the arguments deployed. I am very grateful to counsel for the clarity of their submissions.
The starting point is to set out the terms of the section:
(1) 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.
(2) An application under sub-section (1) must be made no later than such time before the trial as may be prescribed.
(3) 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.
(4) Nothing in subsections (1) to (3) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection.
It is logical to start with the arguments deployed by Mr Spearman QC on the question of jurisdiction. He submits that there is no residual jurisdiction for the court to hive off certain specific issues for determination by a jury, since the court's powers are effectively defined and confined by the terms of s.69. It is well known that Parliament has gradually confined the role of jury trial in civil litigation in successive statutes until the present formula was reached. Although one sometimes sees references to a "right" to jury trial or to the jury being the "constitutional tribunal" for resolving certain issues, this terminology can obscure the true position.
There is no doubt that the present case "does not by virtue of subsection (1) fall to be tried with a jury". In those circumstances, it has not been suggested by Mr Caldecott QC, on the Defendants' behalf, that there is in any sense a "right" for his clients to avail themselves of jury trial in respect of meaning or any other issue.
The parties have focussed in the hearing before me upon the terms of subsection (4) and have given it closer attention, so far as I am aware, than has been brought to bear in any earlier case. It falls naturally into two halves, and it is the relationship between them which has attracted particular consideration.
Mr Caldecott submits that the first part of the subsection is not to be qualified by the second and, accordingly, it is right to conclude that there is a general power in the court to order "different questions of fact arising in any action [to] be tried by different modes of trial". It is, moreover, to be noted that the matter received careful consideration by the Court of Appeal in Phillips v The Commissioner of Police of the Metropolis [2003] EWCA Civ 382 (although it is fair to say that no such arguments were addressed on that occasion as have been raised before me). It was observed by Scott Baker LJ at [17]:
"Section 69 (4) … makes it quite plain that different issues of fact may be tried by different modes of trial. The subsection says that the power may be exercised 'in accordance with rules of court'. CPR 3.1 spells out the court's general powers of management. These include [in] 3.1(1)(i) [I interpose that this was clearly a slip and that what was intended was 3.1(2)(i)] power to direct a separate trial of any issue and 3.1(1)(m) [again what was intended was 3.1(2)(m)] power to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective—which is of course to deal with cases justly. Accordingly we have no difficulty in concluding that in applying the exception in section 69(1) the court is able in appropriate circumstances to fillet out part of a case to be tried by judge alone leaving the remainder to be tried with a jury. The split does not necessarily have to be between liability and quantum. That this is so is apparent from the reference in section 69(4) to 'different questions of fact arising in any action'. We do however emphasise the qualification that such an order should only be made in appropriate circumstances. There will no doubt be many cases where once it is clear that some issues cannot conveniently be tried with a jury the whole case will more appropriately be tried by a judge alone. An obvious example is where questions of credibility are relevant across the board".
There is thus no doubt that the case at least provides support for Mr Caldecott's argument that I have jurisdiction to "fillet out" the issue of meaning to be tried with a jury.
Mr Spearman was prepared to recognise, when I put them to him in argument, that his submissions would have at least two consequences which would appear, at least at first sight, to be rather surprising. First, a comparable order to that which Mr Caldecott now seeks was made by Morland J in Gregson v Channel 4 Television Corporation. According to Mr Spearman's submission the learned judge had no power to do so. Yet no doubt was cast on the jurisdiction when the matter reached the Court of Appeal: [2002] EWCA Civ 941. Again, therefore, although the arguments were not directly addressed on that occasion either, Mr Caldecott can point to an appellate authority which is, at least, consistent with the order he seeks.
Secondly, Mr Spearman acknowledged that in the present case, even if his client had been disposed to agree with Mr Caldecott's proposal to hive off meaning for disposal by a jury, his argument would entail that the court could not permit such a step to be taken. That, again, seems a little surprising against the background of all the well known dicta over the years to the effect that the determination of meaning in a libel action is a classic jury issue: see e.g. the observations of Otton LJ in Safeway Stores plc v Tate [2001] QB 1120, at 1130–1131. Mr Spearman points out, on the other hand, that those statements would naturally have been made in the context of proceedings which were to be tried by jury and which, ex hypothesi, do not fall within the exclusions contemplated in s.69(1) of the Supreme Court Act. Clearly it is important, where there is to be a jury trial in any event, that a judge should be careful not to trespass upon the jury's natural role—which certainly would include the determination of the natural and ordinary meaning of the words complained of. But that, he submits, is not this case.
I must now focus on the thrust of Mr Spearman's submissions on the interpretation of s.69(4). He argues, first, that once an action fulfils the exclusionary criteria identified in s.69(1) then the action shall be tried without a jury (unless the court in its discretion orders it to be tried with a jury). Mr Spearman submits in the light of this wording that it is mandatory for the action as a whole to be tried without a jury. There is provision for the court, in its discretion, to order it (i.e. the action) to be tried with a jury, but that is hardly ever exercised once the exclusionary criteria are fulfilled. The only example of which I am aware in recent years was the case of McPhilemy v Times Newspapers Ltd, where in July 1999 I...
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