Defamation Act: The Jury’s Out

11 September 2014

Nine months after the Defamation Act 2013 came into force, we’re starting to see how the Court is dealing with its new provisions. A week after the first judgment on section 1 and the serious harm test, the Court’s judgment on the question of jury trials was handed down in the case of Tim Yeo MP v Times Newspapers Limited [2014] EWHC 2853 (QB).

Mr Yeo sued over articles in The Sunday Times from June 2013, which alleged that he was prepared to act and had offered himself as willing to act as a paid Parliamentary advocate in breach of the rules of the House of Commons. Following service of the Defence, Mr Justice Warby considered The Times’ application for an order that the case be tried by a jury.

For centuries prior to the Defamation Act 2013, it had been a constitutional right to have a defamation trial decided by a jury. However, in recent decades there was a growing emphasis in favour of trial by Judge. This ultimately led to section 11 of the Defamation Act 2013 which abolished the right to jury trials in a defamation action. A jury trial will only now take place if the Court exercises its discretion in favour of such method.

The Times applied for Mr Yeo’s claim to be heard by a jury, arguing that “members of the public are best placed to decide whether publication was legitimate given [Mr Yeo’s] role in public life and the role of the press in holding those in public life to account”. The Times argued that the public should determine whether ‘value judgments’, namely; ‘opinions on motives and intentions of a third party’) were “fair and in good faith” and that, because judges and Select Committee Chairs were seen as powerful figures in public life, a jury trial would negate any risk of the public suspecting a Judge’s decision to be biased.

Mr Justice Warby rejected all of The Times’ arguments and set out three factors which support the new statutory presumption of trial by Judge alone:

(1) Judges give reasoned judgments; a general verdict of a jury could leave room for doubt. The greater the public interest in the subject matter of the dispute, the more important it would be, from the public’s perspective, to have a statement of reasons for the judgment reached.

(2) Proportionality – a trial by jury takes longer and is more expensive; and

(3) Case management – in trials by Judge, the meaning of a publication – a crucial issue – can be determined at an early stage rather than at trial by a jury. This should mean less expensive and more efficient cases.

Defamation trials being heard by judges alone is now the starting point. This judgment makes clear that the Courts will not exercise their discretion and order a jury trial lightly. If this enables claims to be dealt with more quickly and less expensively than under the previous regime, this will be in the interests of both claimants and defendants. Mr Justice Warby’s example of an instance where a jury trial might now be ordered – ‘a simple libel action concerning a single factual allegation in which meaning is not in dispute and the sole issue is truth’ – is a rarity indeed. The jury may well be out for good.

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About the Author

Hind Habib

Senior Associate

From defamation to data breaches, Hind advises prominent individuals and successful businesses to identify threats and mitigate risks to reputation both pre and post publication.

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