Libel – Trial of preliminary issues – Whether suitable for trial by judge alone – s.69(4) Supreme Court Act – Whether appropriate to order in the claim
C1, an individual, and an associated company, C2, brought a libel action against an English public company, D, based on a press release issued by D. The claim of C1 was struck out on the basis that the words complained of were not capable of referring to him. D applied for various issues relating to C2’s claim to be tried as preliminary issues.
Whether the following issues in the action should be tried as preliminary issues, viz,:
(1) whether C2 had legal capacity to sue;
(2) whether C2 had a sufficient reputation in the jurisdiciton to sue; and
(3) whether the words complained of were capable of referring to C2.
(1) The issues were the kind of questions suitable for trial as preliminary issues.
(2) These issues could and should be tried by judge alone pursuant to s.69(4) of the Supreme Court Act 1981. If it was necessary for D to show that the criteria under s.69(1) were satisfied, they were so satisfied.
(3) However, it was premature to order the issues to be tried as preliminary issues in the circumstances of this case. D had not indicated whether it had any substantive defence to the action, and if it did not, it would be pointless to have these issues be tried in advance of the main trial.
Although there was little argument on the question, the court appears to have agreed with C’s submission that the exclusionary criteria under s.69(1) had to be satisfied before the court could carve out issues from a jury trial to be tried by judge alone; that is, that s.69(4) is not a free-standing power permitting the court to order that any aspect of a libel case be tried by a judge alone.
