McPhilemy v Times Newspapers Ltd (No.3)
Reference:  EWCA Civ 871;  EMLR 832
Court: Court of Appeal
Judge: Simon-Brown, Chadwick & Longmore LJJ
Date of judgment: 12 Jun 2001
Summary: Defamation - Libel - Jury Trial - Appeal against alleged perversity in jury verdict - Question left to the jury specifically on Appellants' insistence - Abuse of Process
Instructing Solicitors: Bindman & Partners for the Claimant
The Claimant had brought libel proceedings on a Sunday Times article which suggested that he had fabricated a TV documentary exposing what was alleged to be a sinister Committee which colluded with the security forces in Northern Ireland to murder Republicans. The Defendants pleaded justification on the basis that the Claimant was a reckless journalist and that the Committee thesis was false. After an 8-week trial, the jury rejected the Defendant’s defence and found for the claimant awarding him £145,000. One of the questions asked of the jury was whether the Defendants had proved on the balance of probabilities that the Committee did not exist. The Claimant contended that the answer to this was irrelevant and made no positive case, consequently the question should not be left to the jury. The Defendants insisted that the question be answered. The jury answered the question “no”. The Defendants appealed alleging the verdict was perverse and against the weight of the evidence.
Whether the Defendants should be permitted to appeal the jury verdict.
It would be an abuse of process for the Defendants to be permitted to argue that the verdict was perverse. They had insisted that the question be put to the jury – thereby accepting, implicitly, that it was capable of being answered either yes or no – against the submission of the Claimant who contended that if the question was material (and his case was that it was not) then the judge should rule that it had been proved. The Defendants could not blow hot and cold. The whole issue of truth and falsity of the Committee thesis need not have been litigated in order to resolve the issues in the proceedings.
This is a robust defence of the role of the jury in libel actions. Whilst the facts were unusual, it is a reminder that the jury should only be asked to answer questions where there is a real issue to be decided that will be material to the outcome of the case. In this case, as the Court of Appeal held, the question left to the jury was not necessary to decide the case. Where one party is being prevented from making a positive case in respect of a proposed question, that is a good indication that there is no issue to be determined. The Defendants here gambled on the jury returning a verdict in its favour on the disputed question. The Court of Appeal held that, having taken the gamble, they couldn’t subsequently complain of the verdict.