Aitken v Preston and Others

Reference: [1997] EMLR 415

Court: Court of Appeal

Judge: Bingham LCJ, Hirst & Millett LJJ

Date of judgment: 15 May 1997

Summary: Defamation - Libel - Mode of Trial - Trial by Judge alone - Prolonged Examination of Documents - s.69 Supreme Court Act 1981

Appearances: Justin Rushbrooke KC (Claimant)  Alexandra Marzec (Defendant) 

Instructing Solicitors: Richard Sykes for the Claimant; Olswang and Goodman Derrick for the Defendants


At the pre-trial review of 3 consolidated libel actions brought by the former MP and Cabinet Minister, Jonathan Aitken, against the Guardian and Granada Television, the Plaintiff applied to vary the mode of trial from judge and jury to judge alone. The judge allowed the application, holding that there would be a prolonged examination of documents which could not conveniently be made with a jury, and that the Court should not exercise its discretion to order trial with a jury.


Whether the trial judge had been correct to vary the mode of trial.


Dismissing the appeal, that there were no grounds for interfering with the judge’s decision. The Court rejected the Defendants’ submission that the public would perceive a jury trial as the appropriate way of deciding a dispute between a senior public figure elected by and accountable to the public, and the media. Public perception was not a reliable guide. Given the overall complexity of the case resulting from the proliferation of issues and sub-issues, the amount of detail, the body of documentation and the number of witnesses, the interests of justice were best served by a painstaking, dispassionate, impartial, orderly approach to deciding where the truth lay. A reasoned judgment giving the judge’s conclusions on each of the main issues would settle the debate once and for all. A further disadvantage of jury trial lay in the fact that there would be a split trial of the issues of liability and quantum, which would almost certainly lead to the recalling of witnesses.


The Court of Appeal followed the important principle that under the amended s.69 SCA 1981 the emphasis is now against trial by jury (see Goldsmith v Pressdram [1988] 1 WLR 64). The case illustrates that defendants who ‘sail under the flag of truth’, as Millett LJ put it in the course of argument, are likely, in complex defamation cases, to find themselves doing so without a jury.