Full case report
McKeown v Attheraces Ltd (No 2)
Reference  EWHC 3232 (QB)
Court Queen's Bench Division
Judge Eady J
Date of Judgment 7 Dec 2011
Libel – jockey – broadcast interview – allegations of deliberate non-trying – permission to amend defence – adding Reynolds defence – other defences – reporting privilege – comment – justification – mode of trial – preliminary issue – C was a senior jockey who sued D for libel over a broadcast interview which he argued meant that he was a corrut jockey who had repeatedly, for corrupt reasons, stopped horses from winning. The defences were privilege, honest comment and justificaiton. The court held that the trial of the issues raised should be by Judge alone, but that all the issues should be tried together.
C was a senior jockey. In disciplinary proceedings of 2008 the Disciplinary Penal of the British Horseracing Authority found that in 2004-2005 C had conspired with others to commit a corrupt practice, and on four occasions in that period had deliberately not ridden his horse on its merits. A disqualification of 4 years was suspended pending a possible appeal. Less than 2 weeks later C was found by Stewards at Southwell to have deliberately not ridden another horseon its merits. The following day, 5 November 2008, C was interviewed on D’s racing TV channel, and it was suggested to him that the latest occasion was one of ‘many examples … during the last four or five years’ of his employing ‘these kinds of tactics’ and that he had been ‘caught’. In October 2009 C issued proceedings for libel against D.
D’s defence initially pleaded qualified privilege for what was said to be a fair and accurate report of the BHA findings and honest comment on those findings. Alternatively, D pleaded honest comment and/or justification based on the contention that C had done the things that the BHA authorities had found that he had done.
In February 2011 Tugendhat J gave judgment dismissing an application by D for summary judgment or a stay on grounds of abuse. Directions were given by consent, which included a direction for trial by Jury.
Subsequently the court held, in Thornton v Telegraph Media Group, that the ‘right’ to Jury trial provided for in s 69(1) of the Senior Courts Act 1981 only comes into play if an application for Jury trial is made within 28 days of service of the Defence, under CPR 26.11; absent a timely application, the position is governed by s 69(3) of the 1981 Act which creates a presumption in favour of non-jury trial; and a party’s agreement to Jury trial, given before these points were generally known, is not binding.
D now applied (1) to amend its defence to plead Reynolds privilege and to add to the particulars of justification (2) to vary the mode of trial to Judge alone and (3) for an order for trial of Reynolds and reporting privilege as preliminary issues. In support of the second application D argued that trial by Judge alone was appropriate because (a) C had failed to apply for trial by Jury within the period specified in CPR 26.11, so Thornton applied; alternatively (b) the case required prolonged examination of documents so that the proviso to s 69(1) of the 1981 Act applied. D further argued that trial of Reynolds as a preliminary issue was standard practice, and convenient in this action.
C argued that permission to amend should be conditional on the abandonment of the statutory privilege and comment defences. C resisted the mode of trial application contending (a) that although he had failed to apply for Jury trial within 28 days after he was sent a copy of the Defence, a Defence was not ‘served’ for these purposes unless it had first been filed, which had not been done; on that basis, his application had been made in time; (b) there would be no need for prolonged examination of documents. C argued that there was overlap between the defences so that a preliminary trial would be inconvenient.
(1) Should permission to add a Reynolds defence be conditional on abandoning other defences?
(2) What was the appopriate mode of trial, in the light of the parties’ contentions?
(3) Should the court exercise its discretion to order the trial of preliminary issues?
(1) Granting permission to amend, there were no grounds on which to require D to abandon extant arguable defences as a condition of the grant of permission to add the plea of Reynolds privilege.
(2) Varying the mode of trial, s 69(3) was applicable; the Defence had been validly served and the application for Jury trial had not been made within 28 days after that; in any event, the trial would require prolonged examination of documents which could not conveniently be made with a Jury, and there were no grounds for exercising the discretion in favour of a Jury trial.
(3) Refusing the application for a trial of preliminary issues, the court could not be confident that this would achieve any significant savings. The issues were too fragmented and there was room for considerable overlap.
The decision on mode of trial re-emphasises the importance of prompt action if a party wishes the issues to be tried by Jury. Here, D initially served but failed to file the Defence, which led to delay in the issue of Allocation Questionnaires. It was in response to the AQ that C’s solicitor applied for Jury trial, but that came more than 28 days after service of the Defence.
The case incidentally highlights the possibility that Reynolds may in an appropriate case be an apt defence where libel proceedings flow from the fairly common kind of broadcast interview in which a person has been the subject of adverse findings in a published report or judgment, and is challenged about those matters by the interviewer.
Stewart-Moore for C; Farrer & Co for D
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