Rothermere v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE CAIRNS,LORD JUSTICE LAWTON |
| Judgment Date | 13 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0213-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1973 |
[1973] EWCA Civ J0213-1
The Master of The Rolls (Lord Denning),
Lord Justice Cairns and
Lord Justice Lawton.
In The Supreme Court of Judicature
Court of Appeal
Appeal (by leave of Mr. Justice Ackner) from judgment of Mr. Justice Ackner on 21st December 1971
Mr. JAMES COMYN, Q. C, and Mr. PETER BOWSHER (instructed by Messrs Charles Russell & Co.) appeared on behalf of the first and third defendants appellants.
Mr. DAVID HIRST, Q. C, and Mr. T. BINGHAM, Q. C. (instructed by Messrs. Swapstone, Walsh & Son) appeared on behalf of the Respondent Plaintiffs.
The second defendant, Mr. Rees-Mogg, appeared in person.
On 19th March 1971, The Times published an article by Mr. Bernard Levin headed "PROFIT AND DISHONOUR IN FLEET STREET". It referred to Lord Rothermere and his colleagues. It commented on the closing down of the Daily Sketch and the continuance of the Daily Mail. I will not read it at large, but I will take the "sting" of it as formulated by Mr. David Hirst, Q. C, the counsel for the plaintiffs. He said that the article meant, and was understood to mean, that the Rothermere group was an ill-run group of companies which shamefully shut down a great newspaper for reasons of economy - while the true reason was to make unconscionable additional profits - and that they closed it down in a brutal manner causing acute hardship to their loyal staff.
Lord Rothermere and his colleagues took exception to this article. They at once issued a writ for libel. They sued The Times Newspapers Ltd., the editor of The Times, Mr. Rees-Mogg, and the writer, Mr. Bernard Levin, for libel. By way of defence the defendants pleaded justification, and fair comment on a matter of public interest. In Reply the plaintiffs alleged that the defendants were activated by express malice.
The question is, How should the action be tried? The defendants want trial by jury. The plaintiffs want trial by judge alone.
The relevant statutory provision is Section 6(1) of the Administration of Justice Act, 1933. It says that:
"If on the application of any party the Court or a Judge is satisfied that (a) a charge of fraud against that Party; or (b) a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, is in issue, the action shall be ordered to be tried with a jury unless the Court or a Judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be tried with a jury".
The defendants say that this case falls within these first words "a claim in respect of libel is in issue", and that they are entitled to have it tried by a jury. The plaintiffs say that the case falls within the exception "the trial thereof requires prolonged examination or documents of accounts Which cannot conveniently be tried with a jury", and so it should be tried by a Judge alone.
In support of their contention, the plaintiffs point to the particulars of defence. These cover 58 pages of foolscap, 'The plaintiffs' list of documents covers 77 pages containing 2,033 items, many of which are files with numerous pages. The defendants' list of documents covers four pages containing 108 items. The plaintiffs assert that there will be a massive number of documents which will have to be copied and made available for the trial: and that the trial will require prolonged examination of them.
1. PROLONGED EXAMINATION OF DOCUMENTS
The first point is whether the trial will require the prolonged examination of documents which cannot conveniently be tried with a jury. The figures given by the plaintiffs make things look very alarming. But, i do not think they are nearly so bad as they appear many of the pages of the Particulars of Defence contain long extracts from statements made by the Chairman of the Plaintiff company; or extracts from their records, as to which there can be little controversy. In the plaintiffs' list of documents there are many redundancy files which are, no doubt, very much of a pattern. I think this assertion of "prolonged examination of documents" may well turn out to be a bogey which, in capable hands, can be cut down to size. i have tried cases with masses of documents on many occasions. It is remarkable how often they can be reduced, to manageable proportions. One very useful thing is toget accountants and experts to go through the documents and to state the general result of them, without going into details. Another useful thing is for counsel to make a wise selection out of the available material, using some instances as typical of others.
It must be remembered, too, that the imputations contained in the article are made with a wide sweeping-brush - as also are the allegations of malice alleged in the reply. Such imputations and such allegations will fall to be determined on a broad picture. They will not be resolves on small details.
No doubt the trial will be long and complicated, but length and complication of themselves are no bar to a jury. Many of the important libel cases in recent years were long and complicated, but they were tried with juries. It is not the length and complication but the "prolonged examination of documents" which takes away the right to a jury. I am not myself satisfied that this case will require such "prolonged examination" and, for that reason alone, I would grant the defendants' request for trial by jury. But I may well be wrong about this. So I turn to the next point: Should the Court, in its discretion, order trial by jury?
SHOULD THE CASE BE TRIED WITH A JURY?
Mr. David Hirst, Q. C, submitted that once through the gateway of the exception, the Court had an absolute discretion, and she sole question was: Which mode of trial will best achieve justice for both sides? I am not sure that this is altogether correct. There are some cases in which one side may have a prior claim to a jury. Thus, where a man's honour or reputation is at stake, it may be of special importance to him to have a jury. Take the case of Broome v. Cassell (1971) 2 Q. B. 354: 1972 A. C. 1027. A distinguished naval officer was accused of cowardicein the face of the enemy. The case might he said to involve prolonged examination of documents. His right to a jury was not disputed, but, if it had been, surely he would have been given a jury. Take this very present case. Lord Rothermore and his colleagues have been accused of shameful conduct in the management of great newspapers. If they had themselves asked for a jury, surely they would have been given one. The defendants would not have been able to deprive them of a jury by saying: "We have pleaded such lengthy particulars and quoted so many documents that you cannot have a jury". So I would not accept Mr. Hirst's test. I prefer to follow the words of Lord Devlin in his little book on "Trial by Jury" at page 158:
I think it will be found that the cases in which trial by jury is ordered - whether the order is made under a claim of right or in accordance with the general principles by which the discretion is exercised - are these in which for one reason or another it is specially impotent to one or other of the parties that should have judgment that fits the of his particular case".
The defendants here say that it is of special importance to them that they should have a judgment that fits the merits; and this on two grounds.
1. On the defence of Fair Comment.
2. On Express Ralice.
FAIR COMMENT
It is one of the essential freedoms that the newspapers should be able to make fair comment on matters of public interest. So long as they their fact correct, they are entitled to speak out. The editor of The Times this case as a challenge to this freedom, He asks that challenge should be tried by a jury, He himself came before us. He reminded us of the right given by our constitution to a defendant who is charged with libel, either in criminal or in civil proceedings, Every defendant hasa constitutional right to have his guilt or innocence termined 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, At one time there were those who would take away this right. There were Judges who claimed that it was for them to declare whether a paper was a libel, or not. On the trial of the Seven Bishops in 1688, Chief Justice , who is described by Lord Campbell as "the lowest wretch that had ever appeared on the bench in England" (see The lives of the Chief Justice, Volume II, page 104) told the jury that the question whether the petition presented by the Bishops was a libel was a question of law, and that in his opinion it was a libel. Nearly one hundred years later - in 1784 - Lord Mansfield, one of the greatest ornaments of his day, repeated the error. He held on several occasions that the question of libel or no libel was for the Judge. But his views were disputed by Mr. Justice Willes, who held that the jury have "a constitutional right if they think fit to examine the innocence or criminality of the paper" - see The King v. Shipley (1784) 4 Douglas at page 171. Eightyears later, in 1792, the Legislature, at the instance of Charles James Fox, adopted the view of Mr. Justice Willes. It gave every defendant on a libel charge the right to have his guilt or innocence determined by a jury: see the act of 32 George III c. 60: and Lord Stanhope's celebrated broadside in the Rights of Juries 1792. Fox's Libel Act was in...
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