Armstrong v Times Newspapers Ltd & Others (No.2) (CA)
Reference:  EWCA Civ 519;  1 WLR 2462; TheTimes, 7July 2006; The Independent, 16 June 2006
Court: Court of Appeal
Judge: Sir Anthony Clarke MR, May & Dyson LJJ
Date of judgment: 13 Jun 2006
Summary: Defamation - Libel - Meaning - Preliminary Issue - Mode of Trial - s.69(1) Supreme Court Act 1981 - prolonged investigation of documents - s.69(3) - discretion - s.69(4) - trials of separate issues
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Instructing Solicitors: Schillings for the Claimant; Addleshaw Goddard for the Defendants
In June 2004, The Sunday Times published an article about the cyclist, Lance Armstrong, entitled “LA Confidential“. The Claimant contended that the article suggested that he was guilty of taking performance enhancing drugs. The Defendants’ “grounds to investigate” meaning (Chase Level 3) had been struck out in December 2004 leaving the parameters of meaning between guilt (the Claimant’s meaning) and “reasonable grounds to suspect” (the Defendants’ meaning). Upon the Claimant’s application, Eady J ordered trial by Judge alone and that meaning should be determined as a preliminary issue. The Defendants had conceded that Reynolds and justification should be tried by judge alone, but argued that meaning should be tried by a jury. The Defendants appealed.
(1) Whether the Court had jurisdiction to order a preliminary issue to be tried by judge and jury when the rest of the case was being tried by judge alone; and, if so, (2) whether Eady J had erred in his approach to the issue whether to order meaning to be tried by judge alone.
Dismissing the appeal; (1) the Court did have jurisdiction under s.69(4) Supreme Court Act 1981 to order meaning to be tried as a preliminary issue by judge and jury. Meaning, being a question of fact, fell within the first part of s.69(4) and so could be determined by a different mode of trial from the balance of the action. Although the second part of s.69(4) was not clear, it appeared to indicate that where the Court directed an issue of fact to be tried separately, the balance of the action would be subject to s.69(1): Phillips v Commissioner of Police of the Metropolis  EWCA Civ 382 disapproved in part. (2) The Defendants could show no error in approach by Eady J and his decision was justified by the reasons he gave.
As the Court noted, s.69(4) Supreme Court Act 1981 had not received any specific consideration in any previous cases and its construction was found to be “syntactically… not entirely straight forward”. The decision makes clear however, that the subsection does permit meaning (or any other issue of fact) to be separated off from an action and tried separately with a judge and jury. The Court of Appeal however emphasised that the discretion under section 69(4) “should be exercised with caution” (§19). In the end, however, the appeal was dismissed on the basis that no error of approach had been shown by Eady J. The basis on which he decided to refuse a preliminary issue on meaning determined by a jury would appear to apply to the majority of cases and therefore make such orders rare, albeit not impossible.