Alexander v Arts Council of Wales

Reference: [2001] EWCA Civ 514; [2001] 1 WLR 1840; [2001] EMLR 713; [2001] 4 All ER 205

Court: Court of Appeal

Judge: Lord Woolf CJ, May and Jonathan Parker LJJ

Date of judgment: 9 Apr 2001

Summary: Defamation - libel - withdrawing of malice from the jury at conclusion of evidence - right to jury determination - CPR Part 24 - summary jdgment - s.69 Supreme Court Act 1981

Appearances: Patrick Milmo KC - Leading Counsel (Claimant) 

Instructing Solicitors: Reynolds Porter Chamberlain for the Claimant


The Claimant alleged that the Defendant had defamed him in a press statement. The Defendant relied on fair comment. The Claimant pleaded malice in reply. At the trial the judge removed the issue of malice from the jury.


Should the issue of malice have been left to the jury rather than withdrawn by he judge.


(1) The Judge was right to conclude that that the primary facts which emerged during the trial were not capable of supporting an inference of malice.
(2) Whilst CPR 24 could not be used to take away issues from the jury because it was not statute-based, whereas the right to a trial by jury was (s.69 Supreme Court Act 1981) the Judge could take an issue away from the jury if no reasonable jury properly directed could reach the decision contended for. Furthermore, a Judge could conclude that no reasonably jury properly directed could fail to reach a decision contended for. For instance, a Judge could conclude that no reasonable jury properly directed could conclude that an article was other than defamatory of the claimant.


The decision on withdrawing the issue of malice is unremarkable. However, the court’s obiter comments on a judge’s powers where he concludes that, for instance, an article can only be defamatory are of interest. Whilst perhaps revolutionary the practical impact of such a ruling may be limited. For instance, even where a judge concluded that the words complained of could only be defamatory a jury would still be required in order to determine their precise meaning and, in the absence of or rejection of a contested defence, the quantum of damages.