Fiddes v Channel Four Television Corporation & Ors (No 2) (CA)
Reference:  EWCA Civ 730
Court: Court of Appeal (Civil Division)
Judge: Neuberger MR, Maurice Kay VP and Sedley LJJ
Date of judgment: 29 Jun 2010
Summary: Libel - Mode of trial - Jury or judge alone - Prolonged examination of documents - Convenience of trial with jury - Discretion - s.69 Senior Courts Act 1981
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Adrienne Page QC - Leading Counsel (Respondent)
David Sherborne (Appellant)
Yuli Takatsuki (Respondent)
Instructing Solicitors: M Law for the Appellant; Aslan Charles Kousetta LLP for the Respondents
C had brought a claim in libel over a documentary about the Jackson family’s proposed move to Devon. The issues in dispute between the parties in the case were meaning, justification, fair comment, malice, republication and aggravated damages.
Tugendhat J decided that there would be prolonged examination of documents and underlying film footage at trial which could not conveniently be made with a jury, which satisfied the first and second hurdles under s.69. The Judge then, having regard to a number of considerations, decided he should exercise his discretion in favour of trial by judge alone. He said that his mind had wavered during the court of the hearing and that he had ‘not found this case an easy one to decide’.
Whether the Judge had erred in varying the mode of trial to judge alone, in particular:
(1) Whether the Judge was wrong in his answer to either of the first two questions under s.69 (prolonged examination of documents and convenience), such that C was entitled as of right to trial by jury;
(2) Whether his decision was plainly wrong for other reasons such that the Court of Appeal could interfere with it.
Dismissing the appeal:
(1) Tugendhat J had the benefit of having case managed the case for nearly a year and was due to be the trial judge. He had close familiarity with the case and wide experience in the defamation field. In such circumstances, the court would be slow to interfere with his assessment of the first two questions.
As to the second question, the inconvenience to be considered was that arising from the prolonged examination of documents, not any other form of inconvenience. Further, care should be taken not to give too much independent weight to the increase in time and costs which a jury would involve. Trial by jury will almost always cost more and take longer than the same trial before judge alone, so giving weight to that factor would risk undermining the constitutional importance of the right to trial by jury.
(2) At the discretion stage the Judge was perfectly entitled to give weight to factors such as the possible chilling effect of costs and the desirability of a reasoned judgment. His decision was not plainly wrong.
It has been some time since the Court of Appeal has provided guidance on the issue of mode of trial in defamation actions. Lord Neuberger MR further refined the principles to be applied under s.69, noting in particular the need for caution when invoking the additional length and costs of a jury trial under the second limb of the test, and reaffirming the constitutional importance of the right to trial by jury.