Telegraph Media Group Ltd v Sarah Thornton

(As Approved)

On 1 November 2008 the Telegraph Media Group Limited, hereafter referred to as the Daily Telegraph, published a review of a book by Sarah Thornton, entitled "Seven Days in the Art World". The review was written by Ms Lynn Barber and contained the words:

"She [Dr Thornton] also claims that she practices 'reflexive ethnography', which means that her interviewees have the right to read what she says about them and alter it. In journalism, we call that 'copy approval' and disapprove…"

Dr Thornton has commenced an action based in libel and malicious falsehood. In relation to the libel, an offer of amends was made which has not been accepted; subsequently, Tugendhat J granted summary judgment in favour of the Daily Telegraph in respect of aspects of the libel.

As for the malicious falsehood it is alleged that the words were false because Dr Thornton did not give her interviewees the right to alter what she proposed to say about them and that there was no basis upon which the practice of reflexive ethnography could fairly or properly be described as the giving of "copy approval", which provides the interviewee with a right of veto. Malice is pleaded.

The defence pleads that Ms Barber expressed her honest opinion about the practice of reflexive ethnography on the basis that copy approval, in a journalistic context, involves the grant of a right to approve what is to be published about an interviewee; what she said was not motivated by any wish to vilify Dr Thornton.

Following an order for directions dated 4 February, which in this regard was not contested, the action was ordered to take place with a jury. On 18 May 2010, with a trial date fixed of 4 July, the Daily Telegraph made a number of applications for orders, including for the variation of the mode of trial, and also for an order requiring specific disclosure of documents relating to communications between Dr Thornton and her interviewees. In an ex tempore judgment, Tugendhat J refused the second application and, in a reserved judgment, also refused the first.

The Daily Telegraph now seeks to appeal both orders. Sir Henry Brooke refused leave in relation to the first on the basis that it was a case management decision by an experienced judge against a background of consent to that mode of trial. In relation to the application for specific disclosure, however, although equally a case management direction close to trial, he granted leave on the grounds that there was a real prospect of success.

I can deal with the substantive appeal in relation to disclosure shortly, because the parties have sensibly now reached agreement. That agreement is to the effect that the court should make an order for specific disclosure of any document evidencing the occasions on which the interviewees identified in paragraph 21 of Dr Thornton's witness statement objected to material that Dr Thornton was intending to include in her book and any responses thereto. For my part I would require disclosure pursuant to this order by 4.00pm on Friday, 24 June on the basis that copies of the relevant documents would also be made available contemporaneously. If the late disclosure causes difficulty to the defendants, doubtless the trial judge will consider what impact that should have.

I now deal with the mode of trial. Mr David Price QC argues that the decision of 4 February did not represent a case management decision, for although the judge had power to make the order, he was required to address his mind to all the relevant factors before doing so, irrespective of the consent of the parties, and he simply did not do so. Neither did he say that he would have ordered a jury trial if he considered the matter on that date.

He submits that Cook v Telegraph Media Group Ltd [2011] EWHC 763 QB makes it clear that the power of the court to order a jury trial is derived from s.69(1) of the Senior Courts Act 1981, which requires the making of an application within 28 days of service to the defence (see CPR 26.11) in default of which the entitlement is lost. In that event, an application under s.69(3) must be made which proceeds on the premise that the presumption is for trial by judge alone and that this presumption can only be displaced by application, whereupon the court must decide mode of trial, having addressed its mind to all relevant factors. The consent of the parties is but one factor to be taken into account. Both Mr Price and the learned judge were very familiar with this authority. Mr Price acted in the case and the judge decided it.

The judge dealt with this application...