Dr Sarah Thornton v Telegraph Media Group Ltd

Hearing dates: 18 May 2011

The background to this action for libel and malicious falsehood is set out in the judgment I handed down on 4 February 2011: [2011] EWHC 159 (QB). At para 39 of that judgment I invited the parties to submit a draft timetable so that I might make directions to lead to the early trial of this action. The draft directions prepared by Mr Rushbrooke, and submitted to the court that day, included that the claim should be entered in the Jury list for trial before a Judge sitting with a jury. There was much in dispute between the parties after the handing down of the judgment, but there was no dispute that the mode of trial should be with a jury. The case is listed to be tried in July.

On 5 April the Defendant ("the Telegraph") issued a notice of an application that the mode of trial be varied to be by judge alone. There were applications for other matters which are not relevant to this judgment. The sole ground of the application argued on 18 May was that "no application for a jury trial has been made under CPR 26.11 or section 69(3) of the Senior Courts Act 1981". The Notice included the statement:

"For the avoidance of doubt the [Telegraph]'s employees and legal advisers were unaware at the time that the [Telegraph] consented to trial by jury that there had been a failure to comply with CPR 26.11 and that the consequence of such a failure was that any order for a jury trial could only be made following an application under section 69(3) of the Senior Courts Act 1981 and consideration of that application by the Court".

At the end of the hearing I announced my decision to dismiss the Telegraph's application and give reasons later. These are they.

The reason for the Telegraph's change of position is that on 25 February 2011 I heard the applications which were the subject of my judgment in Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) (29 March 2011). Mr Price appeared for the Telegraph in that case. In the Cook case no order for trial with a jury was ever made (unlike the present case). At the hearing on 25 February I required counsel for Mr Cook to make submissions as to mode of trial. He had not expected to have to do that. Both he and Mr Price had assumed that there would be a jury in that case until I raised the question of my own motion. When I handed down the judgment on 29 March, I ordered the case to be tried by judge alone. It was following the handing down of that judgment that the Telegraph issued the application notice the subject of this judgment.

However, Mr Price had anticipated that that might be the outcome of the hearing in the Cook case. On 25 February 2011 he wrote to Dr Thornton's solicitors:

"In an application in the case of Cook v Telegraph Media Group Ltd heard today … the Judge pointed out that an application for a jury trial must be made within 28 days of service of the Defence ( CPR 26.11). Judgment is reserved in theapplication.

Our client reserves the right to apply to set aside the order for jury trial in … the order of 4 February in the present case on the basis that it was made without jurisdiction. It seems sensible to await the outcome of judgment in Cook first …"

Section 69 of the Senior Courts Act 1981 regulates civil cases in which there may be, in whole or in part, trial by a jury. Section 69 of the 1981 Act provides:

"(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—…

(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or …

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 subsection (1) must be made not 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".

CPR Part 26 .11 prescribes that an application for a claim to be tried with a jury must be made within 28 days of service of the defence.

CPR 23.3 provides:

"(1) The general rule is that an applicant must file an application notice.

(2) An applicant may make an application without filing an application notice if –

(a) this is permitted by a rule or practice direction; or

(b) the court dispenses with the requirement for an application notice".

As is well known to practitioners, the court very commonly does dispense with the requirement of an application notice in pursuit of the overriding objective. I dispensed with that requirement in my judgment handed down on 4 February when I invited the parties to submit draft directions.

I refer to paras [75] to [87] in Cook for the full framework in the statute and the CPR. In paras [83]–[87] I said:

"83. The implications of this for the exercise of the court's discretion under section 69(3) may not hitherto have been fully appreciated. The implication is that, once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.

84. It may be, as Mr Crystal submits, that the time for compliance with CPR 26.11 may be extended under CPR Part 3.1(2)(a), and that it may be so extended even after the time for compliance has expired. The editors of Duncan & Neill on Defamation 3rd ed state in para 28.41, footnote 2 that "in practice the determination of the application is often deferred until the likely scope of the issues in the case is clearer". They do not say that the making of the application is often deferred, but they do submit that there is power to grant an extension of time under CPR 3.1(2)(a). They also refer in the next footnote to the discretion under s.69(3).

85. Any application under CPR 3.1(2)(a) would be a matter for the court's discretion, to be exercised judicially and in accordance with the overriding objective. Whether the court would approach the matter any differently if it was considering the exercise of a discretion arising directly under s.69(3), or one arising under CPR 3.1(2)(a) is a separate point.

86. Mr Crystal submits that the court should approach the matter differently, in that under CPR 3.1(2)(a) the court should approach the issue on the basis that the exercise of the discretion in a party's favour would have the effect of giving that party the rights that he would have had under s.69(1) if he had made an application within the prescribed 28 days. Mr Crystal also submits that the position is analogous to an application for relief from a sanction, for which provision is made in CPR 3.9(1), and which requires the court to have regard to all the circumstances, including the nine which are listed.

87. In my judgment in the circumstances of this case it would not make any difference under which of s.69 (3) or CPR 31.1 (2)(a) the discretion arose. No reason is given for the omission to make the application within the 28 days. And CPR 3.9(1) does not assist. The loss of the right to trial by jury under s.69(1) is not a sanction. But even if it were, no good reason has been advanced in this case for the omission to make the application.".

No application notice was ever issued in this case pursuant to CPR 26.11. The Defence was served on 15 September 2009, so the 28 days expired on 13 October 2009.

However, the mode of trial had been referred to in correspondence before service of the Defence. On 31 July Mr Price wrote to Dr Thornton's solicitors inviting her to consent to trial by judge alone. On 14 August they replied that she was entitled to a jury (which is obviously a reference to s.69(1) of the 1981 Act).

Shortly after the service of the Defence there was a hearing before Sir Charles Gray at which Dr Thornton applied to strike out the defence of fair comment. At para 14 of his judgment ( [2009] EWHC 2863) Sir Charles recorded that Mr Rushbrooke accepted that "the defence of fair comment will only be struck out if a negative answer by the jury to [certain questions] would be perverse". And at para 49 he said: "… since the trial is due to take place with a jury, I have to be satisfied that it would be perverse for the jury to conclude that the defence of fair comment succeeds".

It is clear from the foregoing that the hearing before Sir Charles Gray was conducted on the understanding shared by both parties, as well as by the judge, that the trial would take place before a judge sitting with a jury.

SUBMISSIONS FOR THE TELEGRAPH

Mr Price submitted that if no application is made under CPR 26.11 within...