Armstrong v Times Newspapers Ltd & Others (No.2)
Reference:  EWHC 2816 (QB);  EMLR 166
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 7 Dec 2005
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
Download: Download this judgment
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). The Court also dismissed the Reynolds defence under Part 24 although this decision was reversed by the Court of Appeal in July 2005. The Claimant applied (a) for trial by Judge alone; and (b) that meaning should be determined as a preliminary issue. The Defendants conceded that Reynolds and justification should be tried by judge alone, but contended that meaning should be tried by a jury.
(1) Whether the Court had jurisdiction under s.69 or otherwise to order trial by judge and jury for the preliminary issue on meaning; and (2) (assuming that the court had jurisdiction) whether trial by judge and jury should be ordered for the preliminary issue on meaning
Ordering trial by judge alone; (1) Although there were strong arguments to support the view that there was no such jurisdiction, in Phillips v Commissioner of Police for the Metropolis  EWCA Civ 382 appeared to be satisfied that there was and such an order had been made in Gregson v Channel Four Television. In light of those authorities, despite the very persuasive arguments to the contrary, the Court had to proceed on the basis that there was jurisdiction to order a preliminary issue to be tried with a jury. (2) Exercising the discretion whether to order jury trial, the Court held that the inconveniences, particularly the difficulties of the jury articulating the single meaning in accordance with Slim v Daily Telegraph  2 QB 157, outweighed the advantages.
The jursidiction point – and the question as to what is envisaged by or possible under s.69(4) – remains to be resolved. Neither Court of Appeal authority referred to clearly decided the point and the Judge was clearly impressed with the argument that once the proviso under s.69(1) had been applied to direct trial by judge alone, s.69(4) did not allow split modes of trial of parts of a libel claim. Eady J had previously expressed his concerns about the difficulties of asking juries to formulate their own single meaning in Jameel v Wall Street Journal Europe (§§5-7) and Galloway v Telegraph (§§32-33). Unless the parties agree that identified meanings are put to the jury for yes/no answers (as was done in Gregson), it is difficult to see a way around the Slim problem identified by the Judge.